Steps involved in contesting a Will 

Contesting a will can be complex, but the process can involve the following steps: 

Step 1: Obtain estate information  

Confirm whether probate has been granted and obtain a copy of the Will and estate details.  

Note: Under Victorian law, a Will may be viewed by anyone named or referred to in it, regardless of whether they are a beneficiary, as well as anyone who would have inherited if the deceased had died without a Will.  

Step 2: Seek legal advice early 

An experienced wills and estates lawyer can assess whether you are eligible to make a claim and have reasonable prospects for success. 

Step 3: Identify your legal grounds  

This may involve demonstrating financial need, dependence, and a close personal relationship with the deceased. 

Step 4: Gather evidence 

Relevant documents may include financial records, medical evidence and proof of your relationship with the deceased. 

Step 5: Attempt negotiation or mediation 

Most claims resolve through negotiation or mediation, reducing costs and emotional strain. 

Step 6: File a court application if necessary 

If a settlement is not reached, a formal application may be made to the relevant Court. 

Step 7: Court determination 

If the matter proceeds to hearing, the Court will determine whether adequate provision was made and, if not, what adjustment is appropriate. 

Common FAQs on Contesting a Will  

Can a distribution under a Will be changed after someone dies? 

Yes. If a family provision claim is successful, the Court may make an order altering how the estate is to be distributed, overriding the terms of the will to the extent necessary to provide proper provision for the claimant. 

Do I have to prove the Will is invalid? 

No. In a family provision claim, the validity of the Will is not challenged. Instead, the claimant accepts that the Will is valid but argues that it fails to make adequate provision for their proper maintenance and support. 

Is it mandatory to go to Court to contest a Will? 

No. Court proceedings are not always required. Many family provision disputes are resolved through negotiation or mediation, often before reaching Court. 

What if I was left out of the Will completely? 

Being excluded does not automatically give rise to a claim. However, if you are an eligible person  and can establish that the Will fails to make adequate provision for you, having regard to your financial circumstances, dependency, and relationship with the deceased, you may be able to bring a claim. 

Getting reliable legal advice

If you are considering your options in contesting a Will, speaking to a lawyer sooner rather than later is essential. Getting clear advice within the required timeframes is essential for a well thought out legal strategy. Contesting a Will can be resolved without engaging in long and expensive legal disputes.

If you want to find out more about your entitlements contact one of our Will & Estates Lawyers today to give you clarity.

About The Author - Maeve Suter

Maeve is an integral member of the Family Law Team. She holds a double degree in Laws and Innovation and Design and is a graduate of the College of Law. She was admitted to the Supreme Court of...