When to contest a Will

If you have been omitted from a Will or inadequately provided for by a deceased person, you may be eligible to bring a claim under Part IV of the Administration and Probate Act 1958 (Vic) (the Act) for provision, or further provision, from the Estate.

To be an eligible applicant, you must be:

1. A spouse or domestic partner of the deceased;
2. A child of the deceased (which may include adopted and stepchildren in defined circumstances);
3. A former spouse/domestic partner of the deceased (subject to conditions); or
4. A grandchild or household member who was wholly or partly dependent on the deceased (in defined circumstances).

Further, you must be able to show that the deceased had a “moral duty” to provide for your “proper maintenance and support”. The following are some scenarios where a moral duty is generally recognised:

1. Parental obligations to provide for:
   1. minor children, for their upbringing, education and housing stability;
   2. adult children with a disability, chronic illness, limited earning capacity or caring responsibilities for dependants;
   3. adult children where the Estate is of substantial value and the circumstances warrant provision;
   4. estranged children where the estrangement was not attributable to the child (i.e. caused by the deceased parent or by external circumstances); and
   5. stepchildren where the deceased treated the child as a child and there was financial/emotional dependency.
2. A long term spouse or long-term domestic partner where there is financial interdependence, including:
   1. cohabitation with pooling of resources and joint liabilities (i.e. mortgage);
   2. contributions by the partner that enabled the deceased’s accumulation of wealth; and
   3. the continuing obligation to secure the partner’s housing and a reasonable standard of living.
3. A grandchild who was financially dependent on their grandparent, where the grandparent assumed a parental role;
4. In the case of registered caring partners where there is genuine dependency (financial or substantial care needs); and
5. Persons being maintained by the deceased immediately before death which can include regular financial support (rent, living expenses, medical costs).

Scenarios where a moral duty is generally not recognised:

1. A deceased person generally has no duty to provide for:
   1. former spouses or former domestic partners after a prolonged separation;
   2. friends in the absence of dependency; and
   3. short, casual or recent relationship lacking cohabitation, financial interdependence or reliance.
2. Parental duty generally does not extend to:
   1. adult, financially secure children, who have already been substantially advanced during the parent’s lifetime; and
   2. estranged children where the estrangement is attributable to the child.

If you are an eligible applicant and believe the deceased owed a moral duty to make (or make further) provision for you proper maintenance and support, you must act promptly by giving the Executor or Administrator written notice of your intended claim and by commencing proceedings with the statutory time limit prescribed by the Act. Wollerman Shacklock Lawyers can assist with this!

If you are an eligible applicant and require assistance in making a Part IV claim under the Act, please contact our office on (03) 9707 1155 or via email at admin@wslegal.com.au.