CHALLENGING A WILL

LAST UPDATED: 04 December 2013

There are a number of reasons why a person may challenge your Will once you have died. The most common challenge is by a person who has been totally excluded, or who believes they have not been left sufficient provision in your Will. This type of claim is known as a Part IV claim or a Testator’s Family Maintenance claim.

For a Part IV claim to be successful a person must prove two matters. Firstly, the person must prove he or she had a relationship with you that was sufficiently close to create a moral obligation on you to include that person in your Will. The Courts have recognised spouses, de facto partners and children as people who are owed a moral obligation. There are a range of other relationships which the Courts may recognise such as step-children and any person who was dependant on you. Often it is the nature of the relationship which allows a person to make a claim. While you are not normally obliged to provide for siblings in your Will, if for example, you raised a sibling like they were your own child, you may be seen to have a moral obligation and would need to consider providing for that sibling in your Will. In Part IV claims the quality and nature of the relationship is examined closely by the Court and a decision is based on the particular circumstances of each case.

Secondly, a person making a claim must establish that he or she has financial need. The Courts have generally held that a spouse or de facto partner needs a roof over their head (usually outright ownership of a house rather than a limited life interest) and sufficient savings to guard against future contingencies in life. A person who relies on a Centrelink benefit is usually able to establish that he or she has financial need.     

A person making a claim against an estate must make it within six months of the date of the Grant of Probate (in Victoria), or risk missing out.

For specific advice about challenges to a Will contact Elisabeth Benfell (an Accredited Specialist in Wills and Estates) of Taits Legal on 03 5560 2100.