Contesting a will in Victoria means either challenging the will’s legal validity or arguing that it fails to make adequate provision for someone the deceased had a duty to support. Both types of claim are filed in the Supreme Court of Victoria, and family provision claims must generally be lodged within six months of probate being granted.1Supreme Court of Victoria. Testators Family Maintenance List Which path applies to you shapes everything that follows: the evidence you need, the deadline you face, and the risk you carry if you lose.
The Two Types of Will Contest
People use “contesting a will” loosely, but Victorian law treats two very different claims under that label.
A validity challenge argues the will itself is legally defective and should be set aside. The main grounds are lack of testamentary capacity (the will-maker didn’t have the mental ability to understand what they were doing), undue influence (someone pressured them into making or changing it), improper execution (the formal signing and witnessing requirements under the Wills Act 1997 weren’t met),2Australasian Legal Information Institute. Victoria Code – Wills Act 1997 Section 7 How Should a Will Be Executed and fraud or forgery. If a validity challenge succeeds, the will (or the affected part) is struck down, and the estate passes under any earlier valid will, or under the rules of intestacy if none exists.
A family provision claim, historically called a Testator’s Family Maintenance claim, doesn’t attack the will’s legitimacy. It accepts the will as valid but argues it fails to make adequate provision for someone the deceased had a moral duty to support. The court can then order that the estate provide more for the claimant.3Victoria Legal Aid. Challenging a Will These are by far the more common type of contest.
Who Can Bring a Family Provision Claim
Part IV of the Administration and Probate Act 1958 restricts family provision claims to people classified as “eligible persons.” If you don’t fit a category, the court won’t hear the claim regardless of how unfair the will feels.
- A spouse or domestic partner of the deceased at the time of death.
- A child of the deceased, including biological, adopted, and stepchildren. Adult children can claim, but the strength of the case turns on financial need and the relationship with the deceased.
- A former spouse or domestic partner, in certain circumstances.
- A grandchild, but only where they were wholly or partly dependent on the deceased for maintenance before the death. Dependence means actual material support, not promised future help.
- A registered caring partner, where the deceased died on or after 1 January 2015.
For grandchildren the bar is particularly high. The court has to be satisfied the deceased owed a moral duty to provide, and any provision ordered must be proportionate to the degree of actual dependence at the time of death.
The Six-Month Deadline and How to Buy Time
The deadline for a family provision claim is six months from the date probate is granted, not from the date of death. Because probate itself can take weeks or months, the clock often starts running before you know about it.
Extensions are possible but far from guaranteed. Courts are especially reluctant to extend time once the estate has been partly or fully distributed, because unwinding distributions creates serious practical problems. If you think you have a claim, you need to act.
Validity challenges don’t carry the same statutory six-month deadline, but unreasonable delay still counts against you. Courts expect prompt action once you become aware of grounds.
If you need breathing room to decide, you can lodge a caveat with the Probate Office of the Supreme Court. A caveat stops the court from granting probate while it remains in force, which also stops the executor from distributing estate assets.4Supreme Court of Victoria. Probate Office Caveat Summons It’s a holding measure, not a claim. If the executor challenges your caveat, you’ll need to file grounds of objection, and a caveat summons must be filed within seven days of those grounds being lodged.
Evidence You’ll Need
Every claim starts with the basics: a copy of the will, the death certificate, and a clear picture of the estate’s assets and debts. From there the evidence diverges sharply by claim type.
For a testamentary capacity challenge, medical records do the heavy lifting. The deceased’s GP records, specialist reports, hospital records, and any cognitive assessments from around the time the will was made all matter. Expert medical opinion that connects those records to the legal test for capacity often decides the case.
Undue influence claims rely on evidence of relationship dynamics. Witness statements from family, friends, or carers who observed the deceased’s interactions tend to be the strongest material available. Bank records showing unusual transactions or sudden changes in financial arrangements can also be telling.
For a family provision claim the focus moves to you. You’ll need detailed records of your income, expenses, assets, and debts. Evidence that the deceased supported you financially during their lifetime strengthens the argument they recognised a duty to you. Professional valuations of significant estate assets like real property or business interests add credibility; the Australian Taxation Office treats a qualified professional’s valuation as substantially more reliable than an informal estimate.5Australian Taxation Office. Market Valuation of Assets
Filing in the Supreme Court
All will contests in Victoria go to the Supreme Court. Family provision claims are managed through the Testators Family Maintenance List, a specialist list for applications under Part IV of the Administration and Probate Act 1958.1Supreme Court of Victoria. Testators Family Maintenance List Validity challenges are handled through the Trusts, Equity and Probate List.6Supreme Court of Victoria. Wills and Deceased Estates Proceedings
Proceedings begin with an originating motion filed with the court, setting out the basis of your claim and identifying the parties.7Supreme Court of Victoria. Form 5B Originating Motion The executor of the will, or the administrator of the estate, is typically named as the respondent. Filing fees apply, and the Supreme Court publishes its current schedule online.8Supreme Court of Victoria. Probate Office Fees
For family provision claims, it’s standard practice to notify the executor of your intention to claim before filing. That gives them a chance to hold off on distributing the estate and sometimes opens the door to early settlement without the expense of formal proceedings.
Mediation and Hearing
After filing, the court issues directions for how the matter will proceed. Mediation is a standard part of the process. The court can order the parties to attend either a judicial mediation, run by an Associate Judge or Judicial Registrar, or a private mediation with an independent mediator.9Supreme Court of Victoria. About Mediation If a settlement is reached, it’s documented and signed on the spot. If not, the case returns to the judge for further directions and eventually a hearing.
Most estate disputes settle at or shortly after mediation. The court encourages this because it’s faster, cheaper, and less damaging than a full trial. Approaching mediation as a formality rather than a genuine attempt to resolve things tends to burn money and antagonise the judge who will eventually hear the case.
If mediation fails, the matter goes to a hearing before a judge. The parties exchange documents through discovery, file affidavit evidence, and witnesses may be called and cross-examined. In a validity challenge, the court can declare the will invalid, in which case the estate passes under an earlier will or the intestacy rules. In a family provision claim, the court can order additional provision from the estate, dismiss the claim, or find the will already makes adequate provision.
How the Court Decides a Family Provision Claim
The court doesn’t just ask whether the will seems fair. It must consider the terms of the will, the deceased’s reasons for making it the way they did, and any other evidence of the deceased’s intentions toward the claimant.
Beyond those mandatory considerations, the court may also weigh:
- The size and nature of the estate.
- Your financial situation and your relationship with the deceased.
- Your age, health, and any disability.
- The competing needs of the named beneficiaries, since any provision ordered for you comes out of someone else’s share.
- Whether you can adequately provide for your own maintenance through other means.
That last factor matters more than people expect. A financially comfortable adult child contesting a parent’s will faces an uphill battle. The court’s role isn’t to divide the estate equally. It’s to ensure adequate provision for those who genuinely need it and whom the deceased had a moral duty to support.
Legal Costs and Financial Risk
Costs are the most misunderstood part of will contests. Many people assume the estate simply pays everyone’s legal fees. In Victoria it doesn’t work that way, and the mistake can be financially devastating.
Costs are at the court’s discretion, but the general rule is that costs follow the outcome. A successful claimant typically recovers their legal costs from the estate. An unsuccessful claimant may be ordered to pay the executor’s costs of defending the claim.10Victorian Law Reform Commission. Succession Laws Report – 10 Costs Rules in Succession Proceedings
There are exceptions. If the litigation was caused by the will-maker’s own fault, such as a poorly drafted will or unclear instructions, an unsuccessful claimant’s costs may still come from the estate. Where reasonable grounds existed to investigate the will’s validity, an unsuccessful challenger usually isn’t ordered to pay the estate’s costs, though they’ll bear their own. Executors generally recover their costs from the estate regardless of outcome, since they’re fulfilling their duty to defend the will.10Victorian Law Reform Commission. Succession Laws Report – 10 Costs Rules in Succession Proceedings
Allegations of undue influence or fraud carry the sharpest cost risk. Even if your broader challenge succeeds, failing to prove those specific allegations can see you ordered to pay the estate’s costs of defending them. They should never be included speculatively.
Tax and Stamp Duty on What You Receive
Winning a contest can trigger tax consequences that eat into what you take home. Assets transferred from a deceased estate to a beneficiary generally receive a capital gains tax rollover, so no CGT is payable at transfer. When a court-ordered settlement changes who receives particular assets and deviates from the will’s terms, additional complications can arise.
One common issue is the deceased’s main residence. If the estate includes a home, it must generally be sold within two years of death to qualify for the main residence CGT exemption. Where a contested will delays probate, the ATO’s safe harbour allows for extension, provided the executor acted as soon as practicable once the dispute was resolved.
Stamp duty is the other cost people overlook. Transfers that follow the will exactly usually attract only nominal duty, but if a settlement renegotiates who receives which assets, full stamp duty rates may apply to the transferred property. On real estate that can run to tens of thousands of dollars, and it should sit on the table during any settlement negotiation.