Assistance in Contesting a Will in Melbourne
It is usually the free will of a person to decide who they leave the assets with. However, there are provisions in law by which the will can be contested. Typically, there is a process by which one can contest a will in Victoria. Like in most other places in the world, Victoria also has specific laws that protect people who have been unfairly left out of a will or have been left with the bare minimum. Sometimes, some circumstances can provide grounds for rightfully challenging a will. As we all know, if a person dies with a will, the will is contested against the executor of the estate named in the will. However, if there is no will, then the will is contested against the Administrator of the intestate estate. At Daniel Lawyers & Associates, we have skilled as well as extensively experienced lawyers who can provide competent legal representation to clients who wish to contest a will.
How to contest a will?
Typically, most people who wish to contest a will would approach the court. However, there are also situations where some people would wish to avoid that hassle of the court system and would choose mediation instead. However, our Daniel Lawyers & Associates lawyers believe that it’s often necessary to start with court proceedings and then move into mediation. The court system usually provides a structured framework, which is often essential for such cases.
Essentially, to prove grounds for contesting a will, it is pivotal to demonstrate the following:
- The deceased had died in Victoria and had assets there.
- You are eligible to claim.
- The deceased had a duty to provide proper maintenance and support to the client.
- The deceased has provided less than what the client needs to live comfortably and decently according to the standard of living they were accustomed to during the deceased’s lifetime, or by providing nothing at all, the deceased has failed to provide proper maintenance and support for the client.
Who can contest a will?
In earlier times, anybody who had a remote connection with the deceased could contest a will. However, Victorian State has amended its laws to create a process for identifying eligible successors over the years. Presently, there are four groups of people who can potentially challenge a will, and they are:
- A spouse or domestic partner
- A child, stepchild, or grandchild
- A former spouse or domestic partner
- A registered carer
Apart from the groups mentioned above, our lawyers at Daniel Lawyers & Associates also have identified other areas where the will can be challenged, and these include the following:
1. Lack of capacity
Suppose the will-maker lacked capacity, the will can be contested. It is an incredibly valid claim if the client was named a beneficiary in a previous version of a will but later removed.
2. Undue influence
This is if the client feels that the will was made under coercion, where they were forced to leave the client out of the will.
3. Breach of Trust
A beneficiary of a will can always have an executor removed if the beneficiary can prove that the executor was not doing their job fairly and adequately.
Contesting Time in Victoria
Suppose if people had been wrongly left out or not treated fairly, the time limit to contest a will is 6 months from the date probate has been granted. Ordinarily, a claim is never made beyond the 6-months. However, there are also some cases where approval had to be obtained from the Supreme Court after 6-months. Here, it is up to the person making a claim to show reasons for their delay in making the claim. Furthermore, if the client is contesting a will due to lack of capacity or in undue influence, a claim should be made before the probate is granted.
It is also important to know that the amount the client may be awarded would largely depend on the strength of the obligation that the deceased had for the client. Additionally, that and the financial need of the client is also taken into account. These include the value of client’s assets, the level of debts, their income, their expenses, such as living and medical expenses, and any future contingencies they may face are all taken into account.
Therefore, experienced lawyers at Daniel Lawyers & Associates know the importance of understanding the recommendations and opinions of at least a few people. Essentially, one should hire a skilled lawyer to contest a will in Melbourne using complex claims. Get in touch with us on (03) 9687 3211 for a free 30-minute phone consultation or email us at [email protected].