Challenging or Defending a Will
Should you be disappointed about someone else’s Will and wish to challenge, our experienced lawyers can advise you on your rights when challenging a Will under the relevant legislative framework.
Alternatively, you may be appointed as an executor pursuant to a Will and wish to defend such Will against a challenge by a disaffected individual. We can assist you where such challenge is made or threatened.
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Frequently Asked Questions
Can I Challenge the Will?
You may be entitled to challenge the terms of a Will under certain circumstances, which include:
- The deceased has a responsibility to provide for you and failed to do so, or failed to leave adequate provision;
- The Will that has been provided to the court is not the last Will of the deceased;
- The deceased did not have capacity to make the last Will; and
- The deceased was forced by one or more other beneficiaries to make the last Will.
It is important to seek advice when you have been left out of a Will, or where your benefit has been limited. There are strict time limits that apply to anyone seeking to challenge a Will or to make a claim for further provision from the estate.
Time Limits for Bringing a Claim
There are time limits that apply for anyone seeking to bring a claim against a Will in Victoria.
A person has six months from the date that the court grants probate or letters of administration to bring a claim against the estate.
It is important to obtain advice as soon as possible to establish whether you have the right to challenge a Will, or to seek additional provision under a Will.
Do I have to go to Court if I challenge the Will?
It is possible to settle a claim against an estate without going to court, or to settle a claim without the time and expense of a trial.
However, it may be necessary to issue court proceedings in order to preserve your rights against the estate, and in order to bring the other party to the negotiating table.
Generally, claims against an estate settle without the need to run a trial. This is because of the costs involved in running a trial, as well as the public nature of any such court hearing.
How do I know if I have a claim?
In Victoria, the people entitled to bring a claim against an estate are limited to certain classes, generally relating to the spouse, child (including step child), grandchild, registered partner and member of the deceased’s household.
It is important to obtain advise as to your rights if you have been left out of a Will or have been left a limited amount under a Will. Duffy & Simon can advise you on your rights and the best course to adopt in seeking to bring a claim against the estate.