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About this blog

The authors of this blog are lawyers or consultants employed by the RCT Group of companies, which includes staff who work mainly within our Stringer Clark offices.

From time to time, we may also invite guest bloggers to contribute, in which case this will be made clear. Authors who are part of the RCT Group are qualified to practice law in Victoria, Australia. Any advice applies to Victorian State law as at the date of first publication. The information is a general guide only and is not a substitute for legal advice applicable to a user's own circumstances.

Residents of other Australian States or Territories or countries are advised to seek legal advice from a lawyer practising in their own area, as laws may vary from region to region.

Recent Authors

Angela Sdrinis is a senior partner with Ryan Carlisle Thomas. She is an LIV Accredited Specialist in Personal Injuries with extensive experience in Comcare matters.

Richard Derks is a Partner of the firm and practices in the area of personal injury including WorkSafe and transport accidents. He is an advocate in a variety of forums for the rights of the victims of accidents at work and on the roads.

Shaun Marcus is a Partner of the firm. He is an LIV Accredited Specialist in Personal Injuries, practising in this area with a particular focus on workers compensation and asbestos claims.

Peter Claven practices in personal injury at our Warrnambool office. He joined Stringer Clark in 2007 and is a member of the Australian Lawyers Alliance.

Michael Burdess joined Stringer Clark in early 2006 and practices in the area of personal injury including WorkSafe and TAC.

Penny Savidis is a Partner of the firm and practices predominantly in the area of employment law.

Contested Wills - what to bear in mind

Part 1: Do I have a case?

Most people are rightly reluctant to challenge another person's Will. Challenging or contesting a Will is not that difficult and there are many Wills or Probate lawyers, including lawyers who speclize in challenging Wills, who will urge clients into premature action.

My view is to hasten slowing in fighting a Will, while bearing in mind that the time limits within which a Will may be challenged. This time limit is six months from the Court's granting of Probate, which means that the Court has established that the Will is a proper and authentic document.

Over two blogs, I will discuss some of the factors you should keep in mind if you are considering challenging a Will.

On what grounds can a Will be challenged?

The Victorian legislation is governed by the Administration and Probate Act 1958. Disputes and claims on a Will are generally made when someone, a dependant, for whom the deceased had taken responsibility, is either overlooked or inadequately provided for.

In my experience, these are some of the typical circumstances under which a Wills claim arises:-

1. Time has overtaken events - where the Will of the deceased was made a long time ago and does not take into account current relationships, say a new partner, relatives or a full time carer.

2. Gold diggers - They do exist. Siblings or children may find themselves cut out when a new Will has been made in favour of a new partner in the few years leading up to the death.

3. Neglected non-family members - This occurs when a Will does not take into account someone that is not a family member but who has cared for or had a very close relationship with the deceased. Sometimes this may be a neighbour or friend who has become a carer.

4. Last minute disfavour - when a Will is changed to cut out a sibling, spouse or child due to some real or perceived slight in the deceased's dying days.

5. The "Family Farm" Will - as occurs when everything is left to the eldest son or males only, cutting out other children.

6. The special needs of a beneficiary - where a sibling or an offspring with a disability requiring intensive care, for example, has to share equally with others. Under these circumstances, the Court may award the person with a disability a greater share.

If any of the above circumstances apply to you, you may well have a case to mount.

In my next blog, I will outline the process and what you need to keep in mind should you be considering making a challenge.

Michael Burdess is based in the Warrnambool office of Stringer Clark which is part of the RCT Group. For more information on Contested Wills, click here.

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