Am I able to challenge a Will?

In Victoria you must first be an eligible person to do so.  The Administration and Probate Act defines an eligible person as “spouses or domestic partners, minor/student/ disabled children or stepchildren, children not otherwise covered, a child or disabled child who believed the deceased was their parent and was treated as a child of the deceased, a member of the deceased’s household at the deceased’s death, a spouse of a recently deceased child, and dependent grandchildren.

Therefore, relatives such as brothers and sisters, uncles and aunts, grandparents and most grandchildren and cousins miss out. Able-bodied adult children  must also satisfy a test they are incapable of providing for themselves adequately.

This is a big change to Victorian law before 1 January 2015 which placed no restriction on eligibility on the class of potential challengers. 

Once you show that you are eligible you must satisfy the second step involving a long standing considerations for challenge. Firstly, a challenger must show a moral duty by the deceased  to the challenger. Secondly, the challenger must prove the will fails to make adequate provision for their proper maintenance and support.

The amount of the provision to be made must not be greater than necessary for the proper maintenance and support. A court must also consider the deceased’s written reasons in relation to not providing for a challenger. That is why it may be prudent for a deceased to either express reasons in a will or have another document with a will noting reasons for the provision made or not made in the will.

There is also a list in the Act of considerations that the Court has the discretion to  take into account when deciding whether to make an order or what form it takes:

a)      a nature and length of the relationship

b)     obligations and responsibilities to the challenger, other eligible persons and named beneficiaries

c)      the size and nature of the estate and liabilities

d)     financial resources and needs, including any capacity of the challenger, beneficiaries and other relevant persons

e)      any disabilities that the challenger and beneficiaries suffer

f)        age of the challenger

g)      contributions of the challenger into building up the estate

h)      benefits previously given by the deceased to the challenger

i)        any maintenance provided by the deceased to the challenger

j)        liability of  any other person to maintain the challenger

k)      the character and conduct of the challenger

l)        effect of any orders made on the amount received by beneficiary

m)   anything else that the Court considers relevant

You will see from the above there are many factors  involved when a person considers making a challenge to the beneficial provisions in a will.