O'Brien & Smith Lawyers
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Our firm’s principal, Patrick Smith, is the author of ‘It’s the Law’, a regular column in the Weekly Advertiser. Below you will find links to some of these columns.

'It's The Law' - Challenging wills a regular occurrence

Occasionally during the process of administering an estate a client becomes shocked to find out that someone is challenging the deceased’s will. It may come as a surprise to many Wimmera residents that wills are regularly challenged. In this article I will discuss how a court considers these challenges. 

 A person who feels that they have not received what they should have from a deceased estate may make an application under Part IV of the Administration and Probate Act 1958 (‘the Act’). Accordingly, challenges of a will are often referred to as a “Part IV claim” or a “Part IV application”.

 In analysing a Part IV application, the court will firstly consider whether the applicant is an eligible person to make a claim. Children, spouses, children, step-children, and grandchildren are generally eligible to make a claim. Normally the following relatives will not be considered eligible to make a claim: siblings, parents, nephews, nieces and cousins.

 The second step the Court will consider is whether the application has been made within time. Generally, the time limit is six months from the grant of probate or letters of administration. However, the court has the power to extend this period in certain circumstances.

 The third step in considering an application is determining whether the deceased had a “moral duty” to make provision for the claimant at the time of death and whether ‘adequate provision” was made. Whether the deceased had a moral duty is a question which must be determined by considering all relevant facts in the application. For example, a Court may find that the actions of the deceased’s children prior to the death, such as caring for the deceased, may be relevant. In determining whether adequate provision was made the court will consider the applicant’s needs (including financial resources available to the claimant), the size of the estate and the impact of an increased provision to the applicant on the other beneficiaries.

 If the applicant has been successful in all of the above steps, then the Court will make the fourth and final step. The final step is determining the appropriate amount that the applicant will receive. In this step the Court will consider why the deceased made the will as they did (this could include a statement in the will that a certain child has not been cared for due to gifts or extra care for that child during their lifetime). This step includes additional requirements for persons other than the deceased’s spouse and infant children. For example, adult children will usually be required to show the degree to which they do are unable to properly maintain and support themselves to be successful in a Part IV claim and grandchildren will need to show they were dependant on the deceased.

 If you feel that there is a possibility that someone may make a claim on your estate you should discuss this risk with your solicitor. The risk of having a claim made on your estate after you passed may be reduced through careful drafting of your will.

 You should also seek legal advice if you feel you have not received what you should have from a deceased estate (even if the usual time limit has passed).

 Patrick Smith is a solicitor at O’Brien Lawyers. Patrick referred to Richard Cook’s helpful guide Upsetting Wills – Testators Family maintenance Proceedings in Victoria 2017 (Australian Law Books, 2016) in writing this article.

 This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.


Patrick Smith