Will Dispute Lawyers in Melbourne, Victoria
Dealing with a deceased estate can be challenging when contesting, disputing or defending a Will. Whether you’ve been left out of a Will and think you are entitled to provision or are a beneficiary or executor or of a Will that is being challenged, experienced Will dispute lawyers can help. The legal experts at McNab McNab & Starke in Melbourne are here to provide tailored advice and assistance.
In Victoria, a person who believes they have been left without adequate provision from a deceased estate may be able to contest a valid Will. This action is called a Testators Family Maintenance Claim or TFM claim.
Our Will Dispute Legal Services
McNab McNab & Starke provides legal advice and personalised services across a range of matters relating to Wills and deceased estates, including:
- Disputing Wills
- Defending a challenge to the Will
- Deeds of family arrangement
- Breaches of executor’s duties
- Removal of executor
- Disputing the validity of a Will
- Issues regarding testamentary capacity and undue influence
- Interpretation of Wills
- Rectification of Wills
- Cy-près applications
Our Will Dispute Lawyers in Melbourne
Causes of Will Disputes and Challenges
A Will can be challenged if:
- The testator (the person who has died) did not have the capacity to make a Will when it was signed
- Provisions in the Will are unclear or incomplete
- The Will was not drafted or signed according to law
- A witness to the Will was left a provision
- The Will was made under the influence of others
- There are delays in proving the Will
- A person the deceased had a responsibility to provide for believes they haven’t been left a fair share of the estate assets
Disputes can also arise over the removal of executors or trustees, how the Will is being administered, and if beneficiaries named in the Will are missing.
How to Dispute a Will
A person disputing the validity of Will must be an eligible applicant who believes they have been left without adequate provision. Under Section 90 of the Administration and Probate Act 1958, this includes a:
- Spouse or domestic partner
- Former spouse or former domestic partner
- Child, stepchild or adopted child
- Grandchild
- Carer in a registered caring relationship as defined under the Relationships Act 2008
- Spouse or domestic partner of a child or stepchild who dies after the deceased
- A person who was a member of the deceased’s household
Contact The legal experts at McNab McNab & Starke in Melbourne for specific advice about eligibility under Section 90 to make a claim or to dispute a Will.
Keep in mind that each case is different, with the Court also considering a number of factors when determining the eligibility of an applicant as well as what constitutes an adequate provision.
Process of Contesting a Will
The Court looks at the deceased’s Will, if there is one, and determines whether there is any evidence of the deceased’s reasons for making the dispositions in the Will. Some considerations may include:
- The relationship between the eligible person and the deceased
- Any obligations or responsibilities of the deceased to the eligible person
- Any obligations or responsibilities of the deceased to any other eligible person or beneficiary
- The size and nature of the estate
- Financial resources of the eligible person
- Any physical, mental or intellectual disability of the eligible person
- Age of the eligible person
- Any contributions to building up the deceased’s estate
- The welfare of the deceased or the deceased’s family
- Benefits previously given by the deceased to the eligible person
- Benefits previously given by the deceased to any other eligible person or beneficiary
- The character and conduct of the eligible person
- Potential impact of a family provision order on other beneficiaries
Contact Us for Personalised Wills and Estates Legal Advice in VIC
For help drafting a valid Will, managing deceased estates, dealing with disputes or understanding Wills and Estates law, contact the team at McNab McNab & Starke. Call us on 03 9131 6382 or use our online contact form.
What to Expect
Conducted virtually or
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Analysis and support in determining your specific needs
Prepared by a Lawyer with expertise in Wills and Estates
Frequently Asked Questions About Will Disputes
I want to challenge a Will. What do I need to do?
Get in touch with our Will dispute lawyers to determine your eligibility, get advice on how to dispute a Will and start the process of making a TFM claim.
How do I get a copy of the Will?
Contact the executor or solicitor acting on behalf of the deceased estate. You are entitled under Section 50 of the Wills Act 1997 to inspect or receive a copy of the Will if you are named or referred to in the Will or considered an eligible applicant under Section 90 of the Administration and Probate Act 1958.
Is there a time limit for contesting a Will?
In Victoria, an individual has six months from the date probate is granted to the executor(s) of a deceased estate to dispute the Will. A claim may be brought after the six-month period with approval from the Supreme Court.
Who pays for the fees when disputing Wills?
The party who brings the claim is typically responsible for paying their own legal costs, however, costs are often paid from the estate when the matter is settled during mediation or pretrial negotiations.
What if a loved one dies without a Will?
Even if a person dies intestate (without a will), an eligible applicant can seek provision from the deceased’s estate.
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