Family Provision Claims — Victoria

Contesting a Will in Victoria

If you believe you have not been adequately provided for in a Will, you may have legal rights. Andrew O'Bryan is a specialist Wills & Estates lawyer with 33+ years of experience helping families understand and exercise those rights.

Time Limit

Claims must generally be made within 6 months of probate being granted. Don't delay.

No Win No Fee

No win no fee arrangements available for eligible family provision claims.

Overview

Can You Contest a Will in Victoria?

Contesting a Will in Victoria is governed by Part IV of the Administration and Probate Act 1958 (Vic). This legislation allows an "eligible person" to apply to the Supreme Court of Victoria for further provision from a deceased estate if they believe the Will — or the intestacy laws where there is no Will — has not made adequate provision for their proper maintenance and support. This process is formally known as a family provision claim, and has historically also been referred to as a testator's family maintenance claim.

It is important to understand what a family provision claim is — and what it is not. Making a family provision claim does not necessarily mean the entire Will is invalidated or set aside. In most cases, the Court makes an order providing further provision to the applicant from the estate, while leaving the remainder of the Will intact. The Will continues to govern the distribution of the estate, except to the extent modified by the Court's order.

There is a meaningful distinction between contesting a Will and challenging a Will's validity. Contesting a Will (via a family provision claim) is about asking the Court for more — arguing that what was left to you, or the fact that nothing was left to you, does not represent adequate provision. Challenging a Will's validity is a different matter entirely: it involves arguing the Will itself is not legally valid, typically on the grounds that the deceased lacked testamentary capacity, was subject to undue influence or fraud, or that the Will was not properly executed. These two processes have different grounds, different procedures, and produce different outcomes. Both are serious legal steps that require specialist advice.

If you believe you may have grounds for either a family provision claim or a validity challenge, you should seek specialist legal advice as soon as possible. Strict time limits apply — particularly for family provision claims — and delay can significantly narrow your options. Andrew O'Bryan offers a free initial consultation to help you understand which avenue, if any, is open to you.

Eligibility

Who Can Contest a Will in Victoria?

Not everyone can make a family provision claim. In Victoria, only an "eligible person" as defined in Part IV of the Administration and Probate Act 1958 can apply to the Supreme Court for further provision. This is a defined legal category, and the Court has no power to hear a claim from someone who falls outside it, no matter how sympathetic their circumstances may be.

The following categories of person are generally eligible:

Category Eligibility
Spouse or domestic partner Eligible
Children (including adult children) Eligible
Stepchildren Eligible (if wholly or partly maintained by the deceased)
Registered caring partners Eligible
Grandchildren Eligible (if wholly or partly maintained by the deceased)
Former spouse (divorced) Not automatically eligible — seek advice

Important note: Siblings, parents, friends, colleagues and non-dependant relatives are generally not eligible to make a family provision claim under Victorian law. Eligibility is the first — and sometimes decisive — question in any family provision matter. Andrew O'Bryan will assess your eligibility promptly during your free initial consultation.

Being an eligible person is a necessary starting point, but it does not guarantee a successful claim. The Court must also be satisfied that the Will failed to make adequate provision for your proper maintenance, education and advancement in life. What constitutes "adequate provision" depends on all the circumstances of the case, including your own financial needs and resources, the size of the estate, and competing claims of other beneficiaries.

Act Quickly

Time Limits — Act Quickly

"Probate" is the formal legal process by which the Supreme Court of Victoria recognises the validity of a Will and authorises the executor to administer the estate. The grant of probate is issued by the Court, and it is from the date of that grant — not the date of the death — that the six-month period begins to run. This is an important distinction: there can sometimes be a gap of weeks or months between a person's death and the grant of probate, and this interval does not extend the time available to you to make a claim.

Critically, the executor is not required to notify you personally of the grant of probate. You may not know that probate has been granted, or that the clock has started running. This is why it is essential to seek legal advice as early as possible — ideally as soon as you suspect you may not have been adequately provided for, and before probate is even applied for. The sooner Andrew is instructed, the more options he can preserve for you.

Even if the six-month period has not yet expired, delay weakens your position. Evidence becomes harder to gather, witnesses' memories fade, and in some cases the estate can be partially distributed even before the full six months has elapsed. Andrew O'Bryan acts with urgency on family provision matters precisely because time genuinely matters.

Step by Step

How a Family Provision Claim Works in Victoria

  1. Seek legal advice

    The first step is to understand whether you are eligible to make a claim and whether your claim has merit. Andrew O'Bryan offers a free initial consultation to assess your situation, explain your options, and give you a frank view of the prospects of success before you commit to any course of action.

  2. Gather information

    Andrew will assist you to obtain a copy of the Will, identify the executor and any other beneficiaries, and find out whether probate has been applied for or already granted. This information is fundamental to understanding your position and calculating how much time you have to act.

  3. Lodge a caveat (if needed)

    If probate has not yet been granted, a caveat can be lodged at the Supreme Court of Victoria to prevent probate from being issued without you receiving notice. This is a protective measure that preserves your options while you decide whether to proceed with a formal claim. Not all matters require a caveat, but it is an important tool in the right circumstances.

  4. Letter of demand

    In most cases, Andrew writes to the executor setting out the basis of your claim, the provision you are seeking, and an invitation to resolve the matter without court proceedings. Many matters settle at this early stage, particularly where the merits of the claim are clear. A well-drafted letter of demand can save significant time and cost.

  5. Mediation

    The vast majority of family provision claims in Victoria that proceed beyond an initial letter resolve at mediation, without a full trial. Mediation is a structured negotiation process facilitated by a neutral third party. It is significantly cheaper, faster and less stressful than a contested hearing. Andrew O'Bryan has extensive mediation experience and prepares you thoroughly to achieve the best possible outcome in a confidential setting.

  6. Supreme Court proceedings

    If mediation does not produce an agreement, the matter proceeds to the Supreme Court of Victoria for a hearing. While this is a relatively uncommon outcome — most matters settle well before trial — Andrew O'Bryan has the experience and preparedness to take your matter to court when that is necessary to achieve a just outcome. You will not be disadvantaged by the other side's refusal to settle reasonably.

The Court's Discretion

What Factors Does the Court Consider?

The Supreme Court of Victoria has a broad discretion in family provision claims. It does not simply apply a formula — it weighs all the relevant circumstances of the case and makes an order it considers appropriate to ensure adequate provision for the eligible person. The Act sets out a range of matters the Court is required to consider, including:

  • The applicant's financial needs and resources
  • The size and nature of the estate
  • The nature and duration of the relationship between applicant and deceased
  • Any contributions the applicant made to the estate or the deceased's welfare
  • The competing claims of other beneficiaries
  • Any reasons the deceased gave — or failed to give — for their decision
  • Whether the applicant was maintained by the deceased during their lifetime
  • The age and state of health of the applicant
  • Any gifts or other benefits the applicant received from the deceased during their lifetime
  • The applicant's character and conduct

No single factor is decisive. The Court approaches each matter individually, which is why the quality of the evidence you put before the Court — and the way it is presented — matters enormously. Andrew O'Bryan has decades of experience identifying the most persuasive aspects of a client's circumstances and presenting them effectively, whether in negotiation, mediation, or Court.

No Win No Fee

Andrew O'Bryan offers no win no fee arrangements for eligible family provision claims. This means:

  • No upfront legal fees — you pay nothing to start your claim
  • Fees only if successful — legal costs are deducted from your settlement or Court award
  • Free initial consultation — assess your claim at no cost before committing to anything

Not all claims are accepted on a no win no fee basis — eligibility depends on the merits of your particular case. Andrew assesses each matter carefully before agreeing to a no win no fee arrangement, which in itself provides useful early guidance on the strength of your claim. Contact Andrew today to find out whether your claim qualifies.

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Victoria-Wide Service

Serving Clients Across Victoria

Andrew O'Bryan assists clients with Will disputes and family provision claims across Victoria, including:

Melbourne CBD

Acting for clients across inner Melbourne, the eastern and western suburbs, the Mornington Peninsula, and all of metropolitan Victoria.

South-East Melbourne

Serving clients across Melbourne and Victoria.

Regional Victoria

Andrew assists clients throughout regional Victoria. Telephone and video appointments are available for those who cannot attend in person.

Common Questions

Contesting a Will — Frequently Asked Questions

Contesting a Will — formally known as making a family provision claim — means asking the Supreme Court for further provision from the estate on the grounds that the Will did not adequately provide for your proper maintenance and support. The Will itself remains legally valid; the Court simply adjusts the distribution to give you a greater share. Challenging a Will means arguing the Will is not legally valid at all — for example, because the testator lacked testamentary capacity, was subject to undue influence or fraud, or because the Will was not properly executed. Both are serious legal steps with different procedures, different grounds and different outcomes. It is important to identify which applies to your circumstances before taking any action.
Yes. Adult children are eligible persons under Part IV of the Administration and Probate Act 1958 and can make a family provision claim. The fact that you are an independent, financially self-sufficient adult does not automatically disqualify you, though the Court will closely consider your own financial circumstances, needs and resources in weighing the claim. An adult child who is financially comfortable has a harder path than one in genuine financial need, but the claim is not automatically defeated. Andrew O'Bryan has successfully acted for adult children across a wide range of financial circumstances.
A stepchild can contest a Will in Victoria if they were wholly or partly maintained by the deceased at the time of the deceased's death. The question of maintenance — what it means and how it is established — is a factual question that depends on the specific circumstances of the relationship. Andrew O'Bryan has extensive experience in blended family estate matters, which are among the most common and often the most emotionally charged in the area. He can advise clearly on whether you have an eligible claim and the likely strength of it.
If probate has been granted and the estate has already been distributed to beneficiaries before you make a claim, recovery becomes extremely difficult. The executor who distributed the estate without having notice of your claim has a personal protection under the Act in some circumstances, and tracing assets once distributed can be complex and expensive. In some cases the Court can order beneficiaries to repay amounts, but this is rarely straightforward. This is precisely why acting quickly is so important — the earlier Andrew is instructed, the more tools are available to protect your position before distribution occurs.
The cost depends significantly on how the matter proceeds. Many family provision claims settle at mediation without a trial, which reduces costs substantially compared to a contested hearing in the Supreme Court. For eligible claims, Andrew O'Bryan offers no win no fee arrangements, which means there are no upfront legal costs — fees are deducted from your settlement or Court award only if your claim succeeds. Andrew will provide a clear explanation of likely costs during your free initial consultation, so you can make an informed decision about whether to proceed.
This is a genuine and important concern, and one that Andrew takes seriously. His approach is always to explore early resolution through negotiation and mediation, which is not only cheaper and faster but tends to be far less damaging to relationships than contested court proceedings. The reality, however, is that if you have been unfairly treated in a Will, you have legal rights — and exercising them is sometimes the only practical course available. Many families find that reaching a mediated agreement, rather than an outcome imposed by a Court, is more conducive to preserving some form of ongoing relationship.
A deliberate exclusion does not prevent an eligible person from making a family provision claim. However, any reasons the deceased gave for the exclusion — whether stated in the Will itself, in a separate letter of wishes, or in other documents — will be considered by the Court. The Court is not bound by those reasons, but they are relevant to its overall assessment. Strong, credible reasons for exclusion can make a claim harder, while reasons that appear unfounded, based on misconception, or disproportionate to the circumstances may carry less weight. Andrew O'Bryan will carefully analyse any stated reasons for exclusion as part of assessing the merits of your claim.
Yes — and in fact, acting before probate is granted gives you the most options. A caveat can be lodged at the Supreme Court of Victoria to prevent the grant of probate from being made without you receiving advance notice. This gives you time to obtain legal advice, assess your position, and decide whether to proceed with a claim, without the risk of the estate being distributed behind your back. If you suspect you may have a claim, do not wait for probate to be granted before seeking advice — the time before probate is often the most valuable window in which to act.
Free Initial Consultation

Don't Wait — Time Limits Are Strict

Book a free initial consultation with Andrew O'Bryan today. He will assess your claim, explain your options, and advise on no win no fee arrangements. Offices in Melbourne and Victoria.

Book Your Free Consultation