Contesting a Will: Where You Stand and How Long You Have

The will reads wrong. Here is what you can do about it

You expected to be looked after and you were not. Perhaps you were left out altogether, or you were given a token amount while a sibling took the house. You are grieving and angry at the same time, and somebody has already told you that the will is the will.

In Victoria that is not how it works. The Supreme Court can order that you receive a share, or a larger share, of the estate where the will failed to make adequate provision for you. The legal name for it is a family provision claim. Most people just call it contesting a will.

What you do not have is time. You must file within six months of the date probate is granted. Once that passes, the executor can lawfully pay the estate out and the law protects them for doing it. Call MK Law on 1800 130 120 while the window is still open. The first call is free, and by the end of it you will know whether there is a claim worth running.

Who can contest a will

You have to be an eligible person under Victorian law. Broadly, that covers a spouse or domestic partner, a former spouse or partner in defined circumstances, children including adult children, stepchildren and adopted children, a registered caring partner, and grandchildren or household members who depended on the deceased. Adult children do win these claims, though the court takes their financial independence into account. Grandchildren and household members have to prove the dependency.

The edges of that list are where people get caught out, and Victoria’s version is tighter than most families expect, so do not write yourself off on the strength of a blog post. Our family provision claims page works through every category and the factors the court applies.

What we do in the first seven days

We read the will and the grant of probate, check that you are an eligible person, and put a value range on the claim against what the estate is actually worth. Then we write to the executor’s lawyers so nothing gets distributed while your claim is on foot. If we think the claim is weak we will say so on that first call, and you have lost nothing by asking.

Get your claim assessed free

What the court looks at

The test is whether the deceased owed you a moral duty of provision and whether the will discharged it. Fairness in the abstract does not come into it. What the court weighs is the size of the estate, your relationship with the deceased, your financial resources and needs, your age and health, any contributions you made to the estate or to the deceased’s welfare, and what the other beneficiaries are entitled to.

That mix explains why two claims that look identical from the outside can land very differently. A dependent partner claiming against a modest estate starts from a strong position. An estranged adult child who owns a home outright has a harder run, although a large estate and a documented falling-out the parent never repaired can still carry the claim home.

When the problem is the will itself

If your real complaint is that the will is suspect, signed during dementia, produced under pressure from a new “carer”, or witnessed badly, then what you have is a challenge to the will’s validity rather than a family provision claim. It runs on different evidence and a different strategy, and in some estates it produces a better result. We look at both on the first call, and our wills and estate disputes page explains where the line sits.

There is a third possibility worth naming, because families rarely think of it. Where the defect traces back to the solicitor who drafted or witnessed the will, suing a lawyer for negligence can be the better route to what you lost, since the claim runs against the firm rather than against your own family. A will that fails on the formalities, or that never carried out the instructions the will-maker gave, is where that question comes up.

How a claim actually runs

We start with a claim letter to the executor, which in practice freezes voluntary distributions. The claim is then filed in the Supreme Court of Victoria and the court orders mediation. Most matters settle at that mediation, usually months before any hearing date. The few that do not settle are decided by a judge, and a hearing typically runs two to five days.

Deadlines, extensions and the rules about distribution are specific to this state, so we keep a separate page on contesting a will in Victoria covering exactly how the deadline works, including when the court will and will not extend time.

Talk to us before you decide anything

You do not have to commit to a fight to find out where you stand. Call 1800 130 120 or use the form on this page and press GET FREE ADVICE. We answer evenings and weekends for new estate matters, because six months goes faster than families expect.