Estates

A person may contest a will where: 1 it is alleged the will was incorrectly executed,

tampered with, or there is a later effective will; 2 the willmaker did not have the mental capacity to

make a will, or did not know or approve of the

contents of the will when it was made; 3 the will was executed under pressure or coercion

from others; 4 the will appears to have been executed in

circumstances that are so suspicious that the

court cannot safely grant probate without further

investigation of the circumstances surrounding

the execution of the will; 5 insufficient provision has been made in the will for

the proper maintenance and support of an eligible

person (usually a spouse, domestic partner,

children, or others to whom the willmaker had

an obligation to provide) within the meaning of

Part IV of the A&P Act; 6 the will has been incorrectly administered. Before any challenge to a will is contemplated, legal advice should be obtained as the procedures are complicated, expensive and time consuming.

Where it is not clear what the will means, the executor or someone interested in the deceased’s estate may apply to the court under order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to have it determine what the willmaker meant in the will. The task of a court is to give effect to the willmaker’s intention through examination of the words used in the will. The court’s power is limited to interpreting the actual words of the will in the context in which they appear, according to their ordinary meaning. Virtually no outside evidence may be called to interpret the will, unless the language is meaningless or ambiguous (s 22 Wills Act 1958 (Vic); s 36 Wills Act 1997 (Vic)).

When the testator was legally capable of making a will, and the will is the deceased’s last will, and the will is clear and unambiguous, there is little opportunity to contest its substance. The Supreme Court has very limited power to alter wills.

As a general principle, a person can give their estate to anyone. This was considered to be unjust when the willmaker’s close family suffered hardship as a result of the deceased giving money elsewhere, rather than to support their immediate family.

Legislation was passed to change the situation. This is contained in Part IV of the A&P Act. The object of the legislation is to allow the court to award to an eligible applicant a portion of the deceased’s estate, if the deceased had an obligation to provide for the applicant and has made no, or inadequate, provision for the applicant in the will in the light of the applicant’s financial situation. Testator’s family maintenance (TFM) proceedings may be brought even where the deceased died intestate. When to apply for testator’s family maintenance A TFM application must be made within six months of the grant of probate or letters of administration. If you are contemplating making a TFM application, you should immediately seek legal advice. To see if a grant of probate or administration has been made, you can check the Supreme Court’s probate records through the court’s website. The court may extend time to make a TFM application if the estate has not been completely distributed (s 99(2), (3) A&P Act). A TFM application can be made in either the County Court or the Supreme Court of Victoria, but cannot be brought in the Magistrates’ Court, or VCAT.

Both courts have comprehensive practice notes which set out the TFM procedures. For the Supreme Court see www.supremecourt.vic.gov.au/areas/ legal-resources/practice-notes/sc-cl-7-testators- family-maintenance-list-second-revision and for the County Court see www.countycourt.vic.gov.au/ going-court/common-law-division/common-law- division-lists/family-property-list Applicants For deaths after 1 January 2015 For deaths after 1 January 2015, only people who are ‘eligible persons’, as defined by section 90A of the A&P Act, can bring a claim.

Broadly, the three categories of eligible persons are (as defined in s 90A A&P Act): 1 Spouses and domestic partners (both registered

and unregistered), minor or disabled children,

assumed and step-children under 25 years of age

and former spouses in some cases. 2 Adult children, and assumed children and step-

children (the extent to which they are not capable

of providing for themselves must be taken into

account). 3 Registered caring partners, grandchildren,

members of the deceased’s household, and

partners of a child of the deceased if the child

died within one year of the deceased’s death.

These classes must be financially dependent

upon the deceased at the time of death and the

provision (if any) awarded must be proportionate

to the degree of dependency on the deceased. Criteria for a redistribution Not all applicants who feel that the deceased has inadequately provided for them may receive an order from the court.

For deaths after 1 January 2015, under section 90A of the A&P Act, only an applicant who is an eligible person as defined in section 90 of the A&P Act is able to bring a claim. For deaths before 1 January 2015, the test applied was whether the deceased had a moral responsibility to make adequate provision for the applicant’s proper maintenance and support (and failed to do so).

In both cases, it is vital that an applicant shows a financial need for the support that the deceased should have provided in their will. The applicant’s relationship with the deceased during their lifetime is also important. A challenge will not be successful merely because the will was unfair or unjust in its distribution.

Section 91A of the A&P Act sets out the factors the courts have to consider in TFM applications. The provisions of Part IV of the A&P Act apply whether there is a will or not. The legislation directs the court to look to the deceased’s will and the intentions and reasons for making the last will. Principles applied by the court Over the years, courts have devised guidelines in determining what amounts to ‘adequate provision for proper maintenance and support’. The legislation also sets out various criteria (s 91A A&P Act) that the court may consider in evaluating a proceeding brought under the relevant part.

Some of the important considerations are:

• the estate’s net value, i.e. its size after debts, funeral, testamentary and other liabilities have been deducted (if the estate is not big enough to be redistributed, the action cannot succeed);
• the applicant’s age, sex and health;
• whether the applicant received any gift, transfer or other provision from the deceased during their life;
• how close the relationship was between the applicant and the deceased;
• the financial resources of the applicant and other beneficiaries or claimants – an applicant will only be entitled to provision if an economic need for provision can be shown;
• the character and conduct of the applicant;
• the extent to which, and basis upon which, the deceased may have maintained the applicant;
• the applicant’s contribution to building up the estate or contribution to the welfare of the deceased and their family;
• the obligations and responsibilities of the deceased to the applicant and other persons;
• any prior benefits given to the applicant;
• the effect of any order on other beneficiaries under the will. The court has power to refuse the application if, in its opinion, the applicant’s character and conduct disentitles them from benefiting under the provisions of Part IV. Grounds for refusing relief might include violence towards the willmaker, dishonestly dealing with the willmaker, or serious abandonment of obligations to the willmaker. If the court decides to alter the will to make provision for an applicant under Part IV, the provision that the court makes must not be for an amount greater than is necessary for the eligible person’s proper maintenance and support. The distribution of the balance of the estate remains as set out in the will as modified by the court order. The TFM order acts as a codicil to the will.