If you think you have been unfairly provided for by a deceased’s Will (or left out of the Will), you may be able to take legal action in contesting the Will.
Where do I start?
The first step that you need to consider is whether the Will left by the deceased is valid. The second step is to determine whether you are entitled to make a claim, known as a ‘testator’s family maintenance claim’ (‘TFM claim’).
A TFM claim is an application to the Supreme Court of Victoria made by a someone who is seeking a portion of the proceeds of a deceased estate. Only specific people are considered ‘eligible’ to make a TFM claim against a deceased’s estate.
Am I eligible to make a claim?
If you fall within one of the below categories, and have been left out of a deceased’s Will, you may be eligible to contest the Will:
- Spouse or domestic partner of the deceased at the time of the deceased’s death.
- Former spouse or domestic partner of the deceased (depending on the circumstances).
- Child of the deceased (including adopted children and stepchildren).
- Registered caring partner of the deceased.
It is important to note that this list is not exhaustive. It is ultimately at the discretion of the Court to determine whether a person is eligible to make a claim against a deceased’s estate.
Some examples of situations where eligible people may choose to contest a Will, include the following:
- They were estranged from the deceased parent. It is important to note that estrangement, alone, does not prevent someone from making a claim against a deceased estate.
- They suffer from a serious illness or physical or mental disability which was not taken into consideration by the Will of the deceased.
- They took extended time off work to care for the deceased which was not adequately reflected in the deceased’s Will.
What does the Court consider?
Provided you can establish that you are eligible to make a claim against the deceased’s estate, the Court will consider a variety of factors, including (but not limited to) the following:
- The contents of the deceased’s Will;
- Any evidence of the deceased’s reasons for how they have distributed their estate;
- Any evidence of the deceased’s reasons for excluding certain people from their Will;
- The nature of the relationship between the deceased and the eligible person. For example, whether or not the eligible person was financially dependent on the deceased;
- The deceased’s moral obligations to the eligible person;
- The size of the deceased’s estate, including any liabilities;
- The financial resources and earning capacity of the eligible person;
- Any physical or mental disabilities of the eligible person;
- The age of the eligible person;
- Any contributions made by the eligible person to the deceased’s estate;
- Any benefits previously given by the deceased to the eligible person; and
- How the people named in the will may be affected by a change to the provision of the deceased’s estate.
This article is intended as general information only. It is not legal advice. If you think you have been unfairly left out of a Will, please contact our office on (03) 9435 9044 or contact us online and we will be able to assist you further.