Contesting Wills & Estate Litigation: Melbourne Lawyers
Melbourne Estate Litigation Lawyers
We can assist you with contesting a Will in Victoria and help you get what you are legally entitled to.
Attwood Marshall Lawyers have the experience and expert knowledge you need to effectively resolve an estate dispute or contest a Will in Victoria. Our team are highly reputed in the legal industry as experts in Succession Law and they will fight fiercely for your rights.
We will immediately evaluate your claim so that you know where you stand. We will help you understand the steps you need to take to contest a Will, the time limitations that apply that you need to be aware of, and what your prospects of success are in making a family provision claim.
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A Will-maker has an obligation to provide for any person for whom they had a responsibility to provide for. If you have been left out of a Will or left without adequate provision, or if there is no Will under the rules of intestacy, you may be entitled to make a Family Provision Claim in Victoria.
You must prove that you are an eligible person under legislation to contest the Will, and that adequate provision has not been made for your maintenance, education, and advancement in life.
You must be an “eligible person” to contest a Will in Victoria. Eligible persons include:
- A spouse or domestic partner
- A child, stepchild, or grandchild
- A former spouse or former domestic partner
- A person who was a member of the deceased’s household
Parents, nephews, nieces, siblings, cousins, and carers can only contest a Will if they can qualify as a member of the household of the deceased, or as an assumed child.
Strict time limits are applicable when contesting a Will. It is imperative that you take prompt action if you intend to make a family provision application.
In Victoria, your application must be made within 6 months from the date of probate or administration, following the deceased’s death.
In some circumstances, the time limitation can be extended for a further period, however this is at the absolute discretion of the court and the estate must not have already been completely administered.
There are various factors the court will consider when someone makes a family provision claim. Firstly, the person making the claim needs to be deemed an eligible person. Once eligibility is established, the court will apply the below test;
“did the deceased person have a moral responsibility and fail to observe their legal obligation to make adequate provision for the claimant?”
The court will examine all the relevant facts of the matter and will consider:
- The value and location of the estate after debts and funeral arrangements have been deducted;
- The characteristics of the claimant, including their age, health, and current and future needs;
- If the claimant suffers from any mental, intellectual or physical disabilities;
- The relationship between the deceased and the claimant;
- If the claimant received any gift, transfer, or other provision from the deceased during their life;
- The conduct of the claimant;
- The financial resources of the claimant and if they can prove economic need;
- Anything else the court considers relevant.
Family provision claims can incur high costs as they usually involve Supreme Court litigation.
The costs associated with your claim will depend on the unique issues of your matter and to what extent you are willing to pursue the claim.
The attitudes and conduct of all parties involved will also play a part in the legal fees incurred.
In most cases, we take on family provision claims as deferred payments or under our ‘No Win, No Fee’ policy, subject to our determination of you having reasonable prospects of success.
To learn more about the costs involved in contesting a Will, or to discuss our legal fees, please contact our Melbourne team any time on 1800 621 071.
The costs of making a family provision claim are at the absolute discretion of the court. In most cases, the successful party in legal proceedings will have a portion of their legal fees paid by the unsuccessful party.
The court may consider:
- the size and value of the estate;
- whether a party has failed to comply with the rules or a practice direction of the court;
- whether irrelevant material was put before the court;
- any offer of settlement made by the parties; and
- any other factors relevant to the case.
If the claimant is unsuccessful in their claim, the Judge may make no order as to costs. What this means is that the claimant would be responsible to pay for their own legal fees, and they may also be required to contribute to the executor’s costs incurred when defending the proceedings.
This is one of the main reasons why it is of absolute importance that you get the right legal advice at the earliest opportunity to determine your prospects of success before starting your family provision claim. Our Melbourne Estate Litigation Lawyers can advise you of the strength of your case, the likely outcome of the proceedings, and what costs may be incurred.