The law relating to Wills, and estate administration, is State based. Each State has its own legislation. Although there are many similarities between the States’ laws, there are also many differences. This article relates to Victoria only.
In Victoria, anyone can challenge the provisions of a Will if that person believes that he or she should have been included as a beneficiary in that Will, or should have been more adequately provided for in that Will. Accordingly, the ability to challenge a Will is not limited to family members.
The fundamental test adopted by Victorian courts is whether the Will maker had a moral obligation to provide for the person challenging.
Although this may sound fairly straightforward, the law involved and the reasoning used by the judges is quite complex.
The person challenging does not necessarily have to show any particular need. The Victorian courts have found that close relatives who are in no particular financial need can successfully challenge. However, a child or other relative (or any other person) of the Will maker who does have a specific need, because of financial, health or other circumstances, would be much more likely to succeed. A well off child would find it difficult to succeed.
Challenges have to be made within six months of the grant of probate. In practice, a challenge should be instituted as soon as possible.
Because of the complexity of the area, it is essential to obtain prompt legal advice.
© Peter Gauld LL.B.
Peter J. R. Gauld LL.B
Gauld & Co. Elder Law Solicitors
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