When a loved one passes away, disputes over their will can add further stress to an already emotional time. In Victoria, if you believe you've been unfairly left out of a will, or not adequately provided for, you may be eligible to make a Family Provision claim.
Who can make a Family Provision claim?
Not everyone can challenge a will. Under Victorian law, only
'eligible persons' can apply.
These include:
- A spouse or domestic partner of the deceased (including same-sex partners)
- A child of the deceased (including adult or adopted children);
- Stepchildren, or someone else treated as a child of the deceased;
- Former spouses or partners of the deceased(in some circumstances); and
- Another person who was financially dependent on the deceased.
Every case is unique, and relationships can be complex. If you're unsure whether you qualify, it's worth seeking early legal advice.
What will the Court consider?
The Courts won't simply rewrite wills. Their role is to
carefully assess whether adequate provision was made for the
applicant's proper maintenance and support. In doing so, the
Courts considers a range of factors, including:
- The nature and length of your relationship with the deceased;
- The deceased's reasons for making the will in the way they did;
- Your current and future financial needs;
- The size and nature of the deceased's estate;
- Any obligations or moral duties the deceased owed to you
- Any contributions you made to the deceased's welfare or estate; and
- The competing needs and claims of other beneficiaries.
The goal is to achieve fairness, taking into account all the circumstances, not merely to divide the estate equally among, for example, children of the deceased.
Time limits matter
In Victoria, a Family Provision claim must be filed within six
months of the grant of probate or letters of administration.
Extensions are possible in limited cases, but they're not guaranteed and can increase legal costs, so it's important to act quickly.
What's the process like?
Most Family Provision claims are resolved without a trial.
A key part of the process is mediation, which is a compulsory element of the process. In the County Court mediation happens after the parties have submitted "position papers" summarizing their cases.
Mediation is a structured negotiation facilitated by an independent mediator, offering both sides a chance to reach a resolution without the stress, cost, or delay of a court hearing.
At mediation, parties often reach a private, confidential agreement that works for everyone involved. It is generally faster, more cost-effective, and more flexible than going to trial, and allows the parties some control over the outcome.
How much does it cost?
Legal costs vary depending on complexity of the matter, and the
Court in which the claim is brought.
For most claims, it is appropriate to issue in the County Court of Victoria. Claims in the County Court are generally quicker, less formal and more cost-effective.
To give you an idea of the costs in a County Court Family Provision claim, the total cost up to and including mediation typically ranges between $25,000 and $40,000.
We understand this is a significant investment, so we offer:
- Clear, transparent fee estimates up front;
- Flexible fee arrangements, including deferred payment arrangements; and
- 'No win, no fee' options in appropriate cases.
In many cases, if your claim is successful or has merit, your legal costs can be recovered from the estate.
Let's talk
If you believe you have been unfairly left out of a will, our team is here to here to help. We're here to guide you through the process with clear advice, strong representation, and compassionate support.
Contact Carl Millington for a confidential no-obligation discussion
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
