Who Can Challenge a Will in Victoria?
There are two fundamentally different ways to challenge a will in Victoria, and they tend to get confused. The first is a challenge to the will itself — an argument that the document is not a valid will and should not be admitted to probate. The second is a family provision claim — an argument that, while the will is valid, the provision it makes (or fails to make) for an eligible person is inadequate. Different people have standing to bring each, and different time limits apply.
Validity challenges: was this a real will?
A validity challenge attacks the will itself. The most common grounds are: lack of testamentary capacity (the testator did not understand what they were doing); lack of knowledge and approval (the testator did not know or approve the contents of the will); undue influence (the will was procured by coercion); fraud or forgery; and failure to comply with the formal execution requirements in the Wills Act 1997 (Vic).
Standing to challenge validity belongs to anyone with a sufficient interest in the estate. That includes beneficiaries of an earlier will, beneficiaries under intestacy if the challenged will were set aside, and beneficiaries of the challenged will itself who think a different version should stand.
The mechanics differ depending on whether probate has been granted. Before the grant, an interested party can lodge a caveat in the Supreme Court Probate Office requiring notice of any application. After the grant, validity is challenged by proceeding to revoke the grant. Either way, the application is heard in the testator's family maintenance and probate list of the Supreme Court.
Family provision (TFM) claims: was the provision adequate?
A family provision claim — historically called a testator family maintenance or TFM claim — accepts that the will is valid but argues the testator failed to make adequate provision for the proper maintenance and support of an eligible person. The jurisdiction is in Part IV of the Administration and Probate Act 1958 (Vic).
Eligible persons are defined in section 90 and include the deceased's spouse or domestic partner at the date of death; a former spouse or partner in some circumstances; children (including adopted and adult children, with adult children subject to additional considerations); stepchildren in defined circumstances; registered caring partners; grandchildren; and certain dependants of the deceased.
The Court considers a list of factors in section 91A, including the size of the estate, the financial resources and needs of the applicant and any other beneficiary, the applicant's age and health, the nature and length of the relationship, the testator's reasons for making the will in the form they did, and any provision the testator made during their lifetime. Adult children must additionally satisfy the Court that the testator had a moral duty to provide.
Time limits — and why they matter
A family provision claim must be commenced within six months of the date of the grant of probate or letters of administration. The Court can extend that period, but extensions are not granted as of course; the applicant must explain the delay and show that the extension will not unduly prejudice anyone who has acted in reliance on the distribution.
Validity challenges are not subject to that six-month period, but practical considerations make early action essential. If the estate is distributed before a challenge is mounted, the challenger may have to pursue beneficiaries personally to recover assets — a much harder proposition than freezing distribution pre-grant by lodging a caveat.
Mediation, settlement and trial
The vast majority of contested estate matters in Victoria settle at mediation. The Supreme Court's TFM list refers claims to compulsory mediation early in the proceeding, and the combination of estate-funded costs, the predictable framework imposed by Part IV, and the disinclination of beneficiaries to spend years in litigation tends to drive resolution. Where a matter does run, hearings are typically two to five days, with evidence from the applicant, the executor, beneficiaries and sometimes experts on capacity or handwriting.
What an executor should do when a challenge is on foot
An executor served with a TFM claim should not distribute the estate, should put the executor's solicitor on notice, and should ensure the assets are preserved pending the outcome. An executor named in a will that is the subject of a validity challenge should not intermeddle in the estate beyond what is necessary to preserve it. Distributing or dealing with assets while a challenge is on foot can expose the executor personally — the right approach is almost always to pause, take advice and communicate.
Frequently asked questions
What's the time limit to challenge a will in Victoria?
A family provision (TFM) claim under Part IV of the Administration and Probate Act 1958 (Vic) must be commenced within six months of the date of the grant of probate or letters of administration. A claim about the validity of a will itself (for example a forgery or capacity challenge) can be brought before or after the grant, but should be raised as early as possible — preferably before any grant issues.
Do I need to be in the will to challenge it?
No. Eligible persons under Part IV — including current and former partners, children, stepchildren in some cases, and certain dependants — can claim provision regardless of whether they were named in the will. Anyone with a sufficient interest in the estate can also challenge the will's validity.
Can the executor refuse to give me a copy of the will?
Once probate is granted, the will is a public document and a copy can be obtained from the Supreme Court Probate Office. Before the grant, an executor in Victoria is generally required to make the will available to persons named in the will and to those who would have been entitled on intestacy.
How much does it cost to challenge a will?
Most TFM claims are run on a deferred fee or no win, no fee basis with costs paid from the estate at settlement. Validity challenges are more variable because they often require expert evidence (capacity, handwriting) and can become protracted. Costs orders generally follow the event, although the Court has wide discretion in estate matters.
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This article is general information about Victorian law and is not legal advice. To obtain advice tailored to your circumstances, contact Armstrong Lawyers on 134 134 or submit an enquiry through our contact page.