Contesting a Will in Victoria: Family Provision Claims, Time Limits & Eligibility in Melbourne

When a deceased person’s will fails to make adequate provision for a family member or dependent, Victorian estate law allows eligible individuals to make a Family Provision Claim (commonly termed “contesting a will”). In Victoria, claims are governed by Part IV of the Administration and Probate Act 1958 (Vic). Following sweeping statutory reforms that took effect in 2015, eligibility criteria were tightened substantially to prevent frivolous claims. Understanding these statutory thresholds and strict deadlines is paramount for anyone seeking estate justice in Melbourne and regional Victoria.

Who is an “Eligible Person” Under Victorian Law?

Under Section 90 of the Administration and Probate Act 1958 (Vic), only defined classes of people can initiate a Part IV family provision claim. The legislation establishes a two-tiered eligibility structure:

1. Automatically Eligible Categories (Without Proving Financial Dependence)

• Spouse or Domestic Partner: The legal husband, wife, or registered domestic partner at the time of the deceased’s death.
• Former Spouse or Partner: A former spouse or partner who was entitled to initiate Family Court property proceedings at death and had not finalized property settlement.
• Child or Adopted Child: A child who was under 18 years of age at death, or a full-time student aged between 18 and 25.
• Child with a Disability: An adult child suffering from a severe physical, intellectual, or psychiatric disability under the Disability Services Act 1991.

2. Conditional Categories (Requiring Proof of Dependency & Inadequate Provision)

• Adult Children: Non-dependent adult children are eligible, but the Court will only make an order if the deceased failed to provide for their “proper maintenance and support,” considering their financial need, contribution to the estate, and relationship with the deceased.
• Stepchildren and Grandchildren: Must prove they were wholly or partly dependent on the deceased for their maintenance and support at the date of death.
• Registered Carer: A person who provided significant domestic care and personal support to the deceased without commercial remuneration.
• Member of Household: A person who was living in the deceased’s household as a family member and dependent.

The Strict 6-Month Statutory Limitation Period

Under Section 99 of the Act, a family provision proceeding must be commenced within six (6) months from the date Grant of Probate or Letters of Administration is granted by the Probate Office of the Supreme Court of Victoria.

What Does the Supreme Court Consider in a Part IV Claim?

Under Section 91A of the Act, the Supreme Court of Victoria must undertake a multi-faceted assessment when deciding whether to alter the distribution of an estate:

1. Deceased’s Moral Duty: Did the deceased have a moral duty to provide for the claimant?
2. Adequacy of Provision: Does the will fail to make adequate provision for the proper maintenance, education, or advancement in life of the applicant?
3. Size and Nature of the Estate: A multimillion-dollar estate offers far more scope for redistribution than a modest estate with competing claims.
4. Financial Resources and Earning Capacity: The applicant’s assets, debts, health, age, superannuation, and financial responsibilities.
5. Contributions Made: Any financial or non-financial contributions made by the applicant to building the deceased’s estate or welfare.
6. Character and Conduct: Any estrangement, hostility, or disentitling conduct between the applicant and the deceased.

The Mediation Process in Estate Litigation

The vast majority of Victorian will contests (over 90%) are resolved via Court-ordered mediation prior to a full trial. Mediation allows executors, beneficiaries, and claimants to negotiate a private Deed of Family Arrangement or terms of settlement in a confidential setting, avoiding crippling legal costs that would otherwise diminish the net estate value.