Written by Sam Pendergast, Senior Associate

When a loved one passes away, discovering that you've been left out of a Will or have been inadequately provided for can be upsetting. Most people assume that the terms of a Will are final and cannot be challenged. However, in Victoria, the Court recognises that there are instances where people may have a legitimate claim for provision from a deceased estate. So who can contest a Will?

In Victoria, contesting a Will is known as making a Testator's Family Maintenance Claim (TFM claim) and is legislated under the Administration and Probate Act 1958 (Vic). It allows eligible individuals to seek a share or a larger share of an estate where adequate provision has not been made for their proper maintenance and support.

At Maddens Lawyers, our experienced Will Dispute lawyers regularly assist Victorians who have been unfairly excluded from a Will or who have received less than they feel they believe is appropriate in their circumstances. We offer an obligation-free initial consultation to assess your circumstances and determine whether you may be eligible to make a claim. If we believe you have grounds to contest, we can act on a No Result, No Charge basis, giving you confidence to pursue your claim without the stress of upfront legal fees.

Call 1800 815 228 or complete our online Will Claim Check to find out where you stand.

What does contesting a Will mean?

Contesting a Will means you are taking legal action to argue how the deceased's estate has been divided.

People commonly contest a Will because:

• They were completely left out of the Will.
• They received less than they believe is appropriate.
• They were financially dependent on the deceased.
• They have personal circumstances create a genuine need for further provision.
• The distribution of the estate does not adequately provide for their maintenance and support.

Who can contest a Will in Victoria?

Your eligibility to make a TFM claim is dependent on your relationship with the deceased.

You may be eligible if you are the deceased's:

• Spouse
• Domestic partner or de facto partner
• Child or stepchild (there are various sub-categories of eligibility for children so even if you are not a biological child of the deceased, we may be able to assist)

The Court may also consider your claim if you are a:

• Registered carer
• Member of the deceased's household
• Grandchild
• Former partner of the deceased

Claims under these categories can be more complex, as you are generally required to demonstrate a higher level of financial dependence on the deceased.

If you are unsure whether you qualify, obtaining advice from an experienced Will Dispute lawyer is the best way to determine your eligibility.

Unsure if you have a claim? Complete the Maddens Lawyers Will Claim Check or call 1800 815 228 for an obligation-free assessment.

What factors does the Court consider?

Being eligible to bring a claim does not automatically guarantee success. The Court will carefully assess the circumstances of both the claimant and the estate before determining if further provision should be made.

If you fall under one of the above categories and are eligible to make a claim, the Court will consider:

• The degree of 'moral duty' the deceased had to provide for your proper maintenance and support. For example, a spouse, child or financially dependent person may have stronger grounds than someone with a distant connection to the deceased.
• Whether you can demonstrate genuine financial need and/or were financially dependent on the deceased. The Court will examine your current financial position for this.
• The degree to which the distribution of the estate fails to provide for your proper maintenance and support.
• The size, value and nature of the deceased's estate.
• Your relationship with the deceased.
• Any other relevant factors, such as your conduct or the deceased's reasons for not providing for you in the Will.

How long do I have to contest a Will?

One of the most important aspects of any Will dispute is timing.

To make a TFM claim in Victoria, you must file your claim within 6 months of the Grant of Probate being granted to the Executor. After this period, contesting a Will becomes much more difficult and the estate may have already been distributed.

For these reasons, it is crucial not to delay if you believe you have grounds to contest a Will. Obtaining early advice allows you to understand your legal rights, confirm your eligibility, identify crucial evidence, preserve your position before assets are distributed, and make informed decisions about how to proceed.

At Maddens Lawyers, we understand both the emotional and legal complexities involved in estate litigation. Our experienced team provides practical advice and clear guidance so you can confidently assess your options.

You may also find these resources helpful:

• Will Disputes and Will Challenges
• Not in the Will? How to contest a Will in Victoria
• Can I dispute a Will?
• Deceased Estates Services

Maddens Lawyers is experienced in Will disputes

If you believe you have been left out of a Will, unfairly provided for, or are unsure whether you are eligible to make a Testator's Family Maintenance claim, it is important to seek advice as soon as possible.

At Maddens Lawyers, we have extensive experience helping clients throughout Victoria and New South Wales navigate Will disputes and estate litigation. Our helpful team can provide an obligation-free assessment of the factors relevant to your claim and advise whether you have grounds to bring a claim. If we determine you have a viable case, we can assist you throughout the process on a No Result, No Charge basis.