10 Things You Must Know Before Contesting a Will in Victoria

This is the first and most important question in any family provision matter: are you legally entitled to bring a claim at all? In Victoria, the right to make a family provision claim is governed by Part IV of the Administration and Probate Act 1958. Only a person who falls within the statutory definition of an "eligible person" can apply to the Supreme Court for further provision from a deceased estate.

The categories of eligible person are defined by the Act and include: a spouse or domestic partner; children (including adult children); stepchildren who were wholly or partly maintained by the deceased; grandchildren who were wholly or partly maintained by the deceased; and registered caring partners. A spouse or domestic partner at the time of death is automatically eligible. Children — regardless of age, financial independence, or whether they lived with the deceased — are also eligible as a category, though their individual financial circumstances are very relevant to whether the claim succeeds.

Importantly, some people who might expect to be eligible are not. Siblings are not eligible persons under Victorian law. Neither are parents, uncles and aunts, close friends, or neighbours, no matter how close the relationship or how long it lasted. Former spouses (people who were divorced from the deceased before their death) are not automatically eligible, and the position of former de facto partners can be complex.

The first thing Andrew O'Bryan does in any family provision matter is confirm eligibility. If you are not an eligible person, there is no point proceeding further down this particular path — though Andrew will also consider whether there are other options available, such as a challenge to the Will's validity. Eligibility assessment is straightforward and Andrew can advise you quickly, usually in your free initial consultation.

"Probate" is the formal process by which the Supreme Court of Victoria recognises the validity of a Will and authorises the executor to administer and distribute the estate. The grant of probate is a formal court document, and it is the date of that grant — not the date of death — from which the six-month period is measured. In practical terms, this means the clock does not necessarily start running at death. There can be weeks or months between the death and the grant of probate, particularly in complex estates. But once probate is granted, the period begins immediately.

The consequences of missing the six-month deadline are severe. If the estate has been distributed to beneficiaries before your claim is filed, tracing and recovering assets becomes enormously difficult. While the Court does have a limited discretion to allow a late application, it is not an automatic right. The Court will consider why the delay occurred, whether the estate has been distributed, and whether prejudice would be caused to the other parties. The discretion to extend time is not granted readily, and relying on it is a risky strategy.

There is another subtlety that catches people out: the executor is not legally required to notify you personally of the grant of probate. Unless you are actively monitoring the situation, you may not know that probate has been granted and the clock has started. This is why it is essential to seek legal advice as early as possible — ideally as soon as you believe you may have been inadequately provided for — and not to wait for someone to tell you what your rights are.

These two concepts are commonly confused, but they are legally distinct processes with different grounds, different procedures, and different potential outcomes. Understanding which applies to your situation is essential before taking any step.

Contesting a Will — also called making a family provision claim or testator's family maintenance claim — does not challenge whether the Will is legally valid. It accepts that the Will is valid but says that, despite its validity, it does not make adequate provision for your proper maintenance and support. If a family provision claim succeeds, the Court makes an order providing further provision to you from the estate. The rest of the Will remains operative and continues to govern the distribution of the remaining estate.

Challenging a Will's validity is a fundamentally different action. It asserts that the Will itself is not a valid legal document and should be set aside entirely. The grounds for a validity challenge include: the testator lacked testamentary capacity (did not understand what they were doing or the extent of their estate); the Will was the product of undue influence (someone else dominated the testator's decision-making); fraud or forgery; or the Will was not properly executed (for example, not properly witnessed). If a validity challenge succeeds, the Will is set aside — which means the deceased's estate may pass under an earlier Will, or under the intestacy rules if there is no valid earlier Will.

Sometimes both avenues are relevant. Andrew O'Bryan will assess your circumstances carefully to identify which approach, or combination of approaches, gives you the best prospects of a satisfactory outcome.

A family provision claim may be well-founded on the merits but impractical if the estate is too small to justify the cost of proceedings. This is a frank commercial reality that Andrew O'Bryan discusses with every prospective client. The Supreme Court has substantial filing fees, and legal costs for a contested hearing can be significant. If the estate is modest, the likely recovery might not exceed — or might even fall short of — the cost of achieving it.

This does not mean small estates can never be the subject of a successful claim. Many matters settle early through negotiation, before significant legal costs are incurred. Andrew's approach is to resolve matters as efficiently as possible — a well-timed letter of demand, followed by mediation if necessary, can resolve many claims without incurring trial-level costs. But if a matter proceeds to a contested hearing, the economics of the claim need to make sense.

As part of your initial consultation, Andrew will help you identify the likely size of the estate (based on publicly available information and information you can provide), estimate the likely cost of proceeding to various stages, and give you a realistic view of whether the economics support the claim. This frank assessment — whether the answer is encouraging or discouraging — is part of the value of obtaining early specialist advice.

One of the most significant — and often misunderstood — aspects of a family provision claim is that it is not enough to simply show you were treated less generously than others. The Court's role is to determine whether the Will (or the intestacy) made "adequate provision" for your "proper maintenance, education and advancement in life." What is adequate depends heavily on your own financial situation.

Your assets, income, liabilities and financial needs are squarely in focus. A financially independent adult child who owns a home, has a well-paying job, and has no dependants faces a significantly harder case than a child who is in genuine financial need — perhaps because of a disability, ill health, financial misfortune, or the demands of caring for children. This does not mean a financially comfortable claimant can never succeed, but the Court is not in the business of redistributing wealth. It is asking whether the provision made (or not made) fails the standard of adequacy given all the circumstances.

The standard of "adequate provision" is not a minimum subsistence level. The Court considers what is appropriate given the nature of the relationship, the size of the estate, and the competing claims of other beneficiaries. A wealthy estate creates more room for the Court to make a substantial order; a modest estate may support only limited provision even for a deserving applicant.

It is important to approach a family provision claim with clear eyes about your own financial position and to be candid with Andrew about the full picture. He needs to understand your circumstances in order to properly present your case — and to assess frankly whether your claim is likely to succeed.

The nature and duration of the relationship between the applicant and the deceased is one of the most important factors the Court considers. A child who maintained a close, loving and supportive relationship with the deceased over many decades has a different starting point to a child who was estranged for the final years of the deceased's life.

That said, estrangement does not automatically defeat a claim — and this is a point that surprises many people. The Court is interested not just in the fact of the estrangement but in its causes and circumstances. Was the estrangement caused principally by the deceased? Did the deceased reject the applicant, behave badly, or create an environment that made the relationship impossible? If so, the weight given to the estrangement may be significantly reduced. Conversely, if the applicant caused or prolonged the estrangement — particularly if it was without good reason — the Court may give considerable weight to the deceased's apparent decision to exclude them.

The relationship is assessed over the whole of its course, not just its final chapter. A 40-year close relationship that deteriorated in the final two years is a very different picture from a relationship that was troubled throughout. Context matters enormously, and the way your relationship with the deceased is characterised — in your affidavit evidence and at any hearing or mediation — can significantly affect the outcome of your claim.

If you contributed — financially, physically, or through the provision of care — to the deceased or to the building up of their estate, this is a powerful factor in favour of your claim. The Act expressly requires the Court to consider "any contributions made by the applicant to the estate or to the welfare of the deceased." Contributions of this kind can make a compelling case that the deceased's estate should not go elsewhere without reflecting what you put in.

Common examples of contributions that carry weight in family provision claims include: caring for an elderly or ill parent, sometimes over many years and at significant personal cost; working in a family business or on a family property for below-market remuneration or without formal recognition; providing financial support to the deceased during their lifetime; or contributing labour and funds to improving the deceased's home or property.

These contributions need to be evidenced carefully. A vague assertion that "I helped Mum a lot" is far less persuasive than a detailed chronology of care provided, supported by records, third-party witnesses, and where possible documentation of what the equivalent professional care would have cost. Andrew O'Bryan will help you identify and document all relevant contributions as part of building your case.

Contributions can be so significant that they support a claim even where the applicant is financially comfortable. The argument is not purely one of need — it is also one of fairness. The Court recognises that a person who has given substantially to the deceased should not be excluded from their estate without adequate acknowledgment.

Many people approach the prospect of contesting a Will with a mental image of a courtroom — a judge, barristers, lengthy cross-examination, and years of bitter litigation. The reality of most Victorian family provision claims is considerably different. The overwhelming majority of matters that proceed beyond an initial exchange of correspondence resolve at mediation, well before a trial.

Mediation is a confidential, structured negotiation process facilitated by an independent third-party mediator — usually a senior barrister or a specialist mediator. Each party attends with their legal representatives, presents their case, and engages in a facilitated negotiation aimed at reaching a mutually acceptable resolution. Mediation is private (unlike a Court hearing), flexible, and far less expensive and stressful than a trial. Outcomes reached at mediation are confidential and binding once reduced to a deed of settlement.

The Supreme Court of Victoria actively encourages — and in some circumstances requires — parties to mediate family provision claims before proceeding to a trial. This reflects the Court's recognition that most of these disputes can and should be resolved without the expense and trauma of contested litigation. Andrew O'Bryan has extensive mediation experience in Wills & Estates matters and is well equipped to represent you in that process — preparing you thoroughly for the day, advising you on the strengths and weaknesses of your claim, and negotiating assertively on your behalf.

Even where a claim does not settle at mediation, there may be further opportunities to resolve the matter prior to trial. Andrew explores every available avenue for resolution, while remaining fully prepared to go to Court if that is what is ultimately necessary to achieve a just outcome for you.

A "no win no fee" arrangement — formally called a conditional costs agreement — means that Andrew's legal fees are only payable if your claim succeeds. If the claim does not succeed, you do not pay Andrew's fees. If the claim succeeds through settlement or a Court order, Andrew's fees and disbursements (including Court filing fees and the cost of any experts) are deducted from the amount recovered.

This arrangement is significant for two reasons. First, it makes legal representation accessible to people who cannot afford to pay hourly rates upfront — particularly relevant in estate disputes, where the claimant often has limited liquid assets even if their underlying claim is strong. Second, the fact that Andrew is willing to accept a matter on a no win no fee basis is itself an informal indicator of his assessment of the claim's merits. Andrew does not accept weak claims on a no win no fee basis; doing so would not be commercially viable and would not serve his clients well.

Not every claim is accepted on a no win no fee basis. Whether your matter qualifies will depend on Andrew's assessment of the merits, the size of the estate, and the likely costs and prospects. Andrew will discuss costs arrangements clearly and candidly during your free initial consultation, so you understand exactly where you stand before you commit to anything.

Of all the things on this list, this may be the most practically important: the earlier you seek advice, the more options you have. Time is your greatest asset in a family provision matter — and it depletes faster than most people realise.

Acting early gives you the ability to lodge a caveat at the Supreme Court before probate is granted, which prevents the executor from obtaining a grant without giving you notice. This can buy you critical time to assess your position and decide how to proceed without the risk of the estate being distributed behind your back. Once probate is granted and the estate begins to be distributed, your options narrow considerably.

Early action also allows you to gather evidence while it is still available. Witnesses' memories are sharper, documents are more likely to still be in existence, and financial records of the deceased's assets are more readily accessible. In cases involving contributions — for example, care provided to an elderly parent — the contemporaneous evidence is particularly important, and its availability often diminishes with time.

Negotiating from an early, well-prepared position is also more effective. Executors who receive a detailed, legally sound letter of demand early in the administration process — before they have committed to a distribution plan — are more likely to engage constructively than those who are contacted when distribution is already underway and parties have entrenched positions.

Many people delay seeking legal advice because they feel uncomfortable about contesting a family matter, or because they are still in the early stages of grief. These feelings are entirely understandable. But the legal system operates on fixed timetables that do not pause for emotional readiness. The consequences of missing the six-month deadline — or of allowing the estate to be distributed before you have lodged a claim — can be irreversible. Andrew O'Bryan handles these matters with genuine sensitivity and compassion, and seeking his advice does not commit you to any particular course of action. It simply gives you the information you need to make an informed decision.