Learn how to make a claim against a Will (or how to avoid one)

by Jacqui Brauman

Since a couple of years ago, Victoria has had narrow categories of people who are allowed to make a claim against a Will. If you are a spouse, child (adult or minor), step-child, spouse of a deceased child, separated spouse who hasn’t resolved their property split, or a dependent member of the deceased’s household, then you can probably read further. If you’re not in one of these categories, then it is not likely that you will be able to make a claim.

If you are in one of these categories, then you need to find out who the executors are and what lawyer is acting for them. You can do this by searching the probate file at the Supreme Court of Victoria. Importantly, you cannot wait long, because you need to make your claim without 6 months of the probate being granted.

make a claim against a will

As well as having to be in one of the categories of people allowed to make a claim against a Will, you must also prove that at the time of death, the deceased had a moral duty to provide for your maintenance and support, and secondly, that the deceased failed to make adequate provision for your maintenance and support.

If you meet these main criteria, then the Court will consider a long list of circumstances to determine the amount that you should be awarded from the estate, if anything:

  • any reasons the deceased left as to your omission
  • the nature and length of the relationship between you and the deceased
  • any obligations that the deceased had to other people
  • the size and nature of the deceased’s estate
  • your age
  • if you have any disabilities
  • any contribution you made to the deceased’s estate or to the deceased’s welfare during his/her life
  • any benefits already gifted by the deceased during his/her life
  • your character and conduct generally, and towards the deceased
  • the effect that a family provision order would have on amounts received by other beneficiaries, and
  • any other factor that the Court considers relevant.

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Here are some other articles which provide some extra information: Cutting Someone Out of Your Will and Who Can Make A Claim Against My Will?

2018-11-13T21:25:16+00:00