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Wills and Estates

Have you been omitted from someone’s will?  Do you think that an estate has failed to provide for your legitimate needs?

If so, you may have the right to contest the will and the proportion that the benefactor had proposed.

With the recent changes to the Administration and Probate Act 1958 (Vic), it has become more difficult to displace the express provisions of a will.  It is therefore more important than ever to obtain experienced legal advice as to what rights you may have in the circumstances.

The applicant must now show that the deceased had a moral obligation to make adequate provision for the applicant in the will and that the provision made for the applicant was inadequate, having regard to the applicant’s financial needs and resources.

The changes to the act also significantly restrict the people who are entitled to make a claim to the following:

  • Spouse or domestic partner;
  • A child of the deceased;
  • A former spouse or domestic partner who is eligible to make a claim under the Family Law Act 1975.

Other people may be able to make a claim, but only if they were wholly or partly dependent on the deceased for their proper maintenance and support.

It is important to move quickly as a family provision claim must be made within six months of the date of the grant of probate.

If you are considering contesting a will, we will need to understand the complete history of the relationship between you and the deceased to ensure that we can advise you fully.  This includes the relevant document such as the will.

It is important to note that in most circumstances, the costs of making an application under Part IV of the Act is paid out of the estate, although this has become more difficult recently with the courts requiring parties to bear their own costs in the case of an unsuccessful application.

Given the complexity of the regime now, we highly recommend that you obtain legal advice from us before taking any steps towards adjusting a will or bequest.

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