Your guide to Will disputes in Victoria
When a loved one passes away, emotions run high and practical matters such as dividing their estate can feel overwhelming. For many families, the Will provides clarity and direction. But what happens if the Will seems unfair, leaves someone out, or raises concerns about its validity? It’s natural to ask: Can I contest a Will in Victoria?
The short answer is yes. If you’re eligible and have valid grounds, the law allows you to challenge or contest a Will.
This blog unpacks the how, when, and on what grounds you can contest a Will in Victoria, so you can better understand your options and seek the right legal guidance.
Who can contest a Will in Victoria?
Not everyone has the right to contest. In Victoria, the Administration and Probate Act 1958 sets out exactly who can contest a Will. Eligible people include:
- A spouse or domestic partner of the deceased (including de facto and same-sex partners)
- Children, stepchildren, and adopted children
- Individuals who believed the deceased was their parent and were treated as such
- Former spouses or partners with pending property proceedings at the time of death
- Grandchildren of the deceased
- Dependents or carers who were financially supported by the deceased
So, if you’re wondering if you can contest a Will if you’re not named, the answer is yes, provided you fall within these categories.
On what grounds can you contest a Will?
It’s not enough just to feel disappointed. The law requires you to establish valid grounds. Broadly, there are two main ways to challenge a Will in Victoria:
1. Family provision claims
This is the most common type of claim, also called a Testator’s Family Maintenance (TFM) claim. Here, you’re not saying the Will is invalid; you’re arguing that it fails to provide you with adequate and proper provision.
When considering such claims, the Court considers factors like:
- Your financial needs and circumstances
- The size of the estate
- The nature of your relationship with the deceased
- Any responsibilities or obligations owed to you by the deceased
- Competing claims from other beneficiaries
This allows the Court to balance fairness across the estate, ensuring no eligible person is left without reasonable provision.
2. Challenges to validity
Less common but equally important are cases where the Will itself may not be valid. This can occur if:
- When the will was made, the deceased lacked testamentary capacity (for example, due to illness or cognitive decline).
- The Will was the product of undue influence, where someone pressured or coerced the deceased into making their Will.
- The Will was affected by fraud, forgery, or improper execution.
These cases can be more complex, requiring strong evidence such as medical records, witness testimony, or handwriting experts.
How long do you have to contest a Will?
A critical aspect many people overlook is timing. In Victoria, you have six months from the date probate is granted to file a claim. Probate is the formal process by which the Court validates the Will and authorises its executor to act.
That means the clock doesn’t start from the date of death, but from when probate is granted. So, how long you have depends on when probate is issued, not when someone dies.
Can you contest a Will after 6months?
Possibly, but it’s far more difficult. You must apply for the Court’s permission (called leave) and show strong reasons for the delay. The Court must also be satisfied that hearing your claim won’t unfairly prejudice other beneficiaries who may have already received their inheritance.
Because of these strict deadlines, seeking legal advice as soon as possible is vital if you’re considering contesting a Will. Our Estate Team at Carew Counsel are always here to help you understand the legal grounds for contesting a Will, so you know where you stand and do not run out of time.
[tip_box]Always check the date probate is granted. This is when the six‑month clock starts. Mark it in your calendar to avoid missing the deadline.[/tip_box]
How to contest a Will
The process of contesting is complex, but understanding the steps helps demystify it.
Step 1: Get legal advice early
Your first step should be consulting with an experienced Wills and Estates lawyer. At Carew Counsel, we can quickly assess whether you’re eligible, whether you may have strong grounds, and what evidence will be required.
Step 2: Gather evidence
Depending on your claim, you may need:
- A copy of the Will and probate documents
- Proof of your relationship to the deceased
- Financial records showing your need or dependence
- Medical or witness evidence if you’re challenging the validity
Step 3: File your claim
A claim must be lodged with the Supreme Court of Victoria. The executors and other beneficiaries will be notified of your claim.
Step 4: Mediation
Most cases are resolved at mediation, a process in which both sides meet with an independent mediator to negotiate a settlement. This can save time, costs, and emotional strain.
Step 5: Court hearing (If needed)
If mediation fails, the matter proceeds to a hearing. A judge will weigh up all the evidence and decide whether to depart from the terms of the Will and alter the distribution of the estate.
How much does it cost to contest a Will?
Unfortunately, there’s no single answer. Costs vary depending on complexity, the size of the estate, and whether the matter resolves quickly at mediation or goes to a full hearing.
In some cases, legal costs can be paid from the estate itself, particularly if the claim is successful. However, there’s always a risk you may need to cover your own costs if unsuccessful. Carew Counsel provides transparent fee structures and can advise you on likely costs early on, so there are no surprises.
Why contesting a Will is about more than money
While financial need is often central, it’s important to acknowledge the emotional dimension. For many people, contesting a Will is about recognition and fairness, ensuring their relationship with the deceased is properly acknowledged.
Unfortunately, these disputes can also strain family relationships. Seeking professional guidance from an experienced Estate Lawyer helps manage both the legal and emotional challenges, with mediation offering a less adversarial path whenever possible.
Partner with Carew Counsel for Will disputes
So, how can you contest a Will in Victoria? By acting quickly, establishing valid grounds, and seeking expert guidance. The law exists to protect eligible people and ensure fairness, but it requires careful navigation.
At Carew Counsel, we specialise in helping individuals and families navigate Wills and estates. We understand the emotional weight of these disputes and provide legal expertise and compassionate support.
If you believe you may have a claim, don’t wait. Contact Carew Counsel today, and let us guide you through the next steps with confidence and care.
Carew Counsel is ranked as one of Melbourne’s top family law firms in Doyle’s Guide and brings over 40 years of experience to Wills and Estates disputes. Our accredited specialists combine legal expertise with compassionate support, helping you navigate complex claims with clarity and confidence.