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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 2: How to make a decision and proceed

The most important limiting factor in challenging or making a claim on a Will is the time limit. Once Probate has been granted, you have six months in which to decide whether or not to challenge a Will.

You should also bear in mind the affect that your challenge may have on other family relationships. Form a view about that, then consider it again before making a commitment. It is a big step that often has an irrevocable impact on relationships.

You may actually be a beneficiary of the Will but this needn't stop you contesting it should you consider that you have been treated unfairly or unequally.

It is important to consider that the well-meant advice you receive from family or friends may be incorrect. If you have any doubts, you would be well advised to seek a legal opinion.

Finally, bear in mind that the Courts do not intervene lightly in modifying the provisions of a Will. They will only do it if there is a clear and reasonable claim.

What is the process?

Cases are issued in the Supreme Court but most will resolve through negotiation at a Court ordered mediation.

The most important thing is to seek advice as soon as you are aware that you have been left out or inadequately provided for. There is only a six-month period once the Court has granted Probate to make a claim. Extensions of time can be applied for but this is risky and costly.

If there is a clear case, the representatives of the estate may meet early on to discuss. If there's a real fight, it will go to mediation.

Evidence is given by way of affidavit. The applicant and representatives of the estate and the beneficiaries do affidavits in response.

Wills can be successfully challenged but you should consider all the circumstances and seek legal advice sooner rather than later.

A final note: I have only canvassed issues relevant to challenging or fighting a valid Will. However, should you believe a Will to have been made under duress, by fraud or while the deceased once mentally disturbed, you have a perfect right to object to the Court granting Probate. But that's another story.

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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