Contesting a Will from Bayside Melbourne

Two distinct claims under Victorian law: Family Provision (you didn't get enough) and will-validity (the will itself shouldn't stand). Quinn & Quinn acts for claimants and estates across Brighton, Hampton, Sandringham and bayside Melbourne.

Family Provision claim — inadequate provision

Section 90 of the Administration and Probate Act 1958 (Vic) lets an eligible person ask the Supreme Court of Victoria to award them a larger share of a deceased estate if the deceased had a moral duty to provide for them and the will (or intestacy) failed to do so adequately.

Who is eligible? Spouses and registered domestic partners, children, step-children and (in limited cases) grandchildren of the deceased, registered carers, and other categories who can show they were wholly or partly dependent on the deceased.

The 6-month deadline. A Family Provision claim must be filed in the Supreme Court of Victoria within 6 months from the date probate or letters of administration are granted. The Court can extend this in limited circumstances, but applications for extension face a high bar and are not granted just because the applicant only recently learned about the will.

What the Court weighs. Age and health, financial position and future earning capacity, relationship with the deceased, the size of the estate, competing claims by other family members, contributions to the deceased's welfare or to the estate, and the deceased's reasons (often recorded in a statutory declaration alongside the will).

Will-validity challenge

A separate cause of action is to challenge the validity of the will itself. The main grounds are:

Lack of testamentary capacity at the time the will was executed — the deceased did not understand the nature and effect of the will, the property they were disposing of, and the people they ought to provide for. Dementia, severe illness, or medication effects are common factual contexts.
Undue influence or duress — the will reflects the wishes of someone other than the testator because of coercion, pressure, or control. This is hard to prove but worth investigating when a vulnerable testator made a late-in-life will benefiting one person at the expense of others.
Lack of knowledge and approval — the testator did not actually know and approve of the contents of the will (often raised in conjunction with suspicious circumstances around the drafting).
Improper execution — the will doesn't comply with the formal requirements of the Wills Act 1997 (Vic). The Court has discretion to dispense with formalities under section 9 in limited cases.

Defending an estate

Quinn & Quinn also acts for executors defending Family Provision claims and validity challenges. Defence preparation focuses on documenting the deceased's reasons for the disposition, gathering evidence of testamentary capacity at the relevant time (drafting solicitor's contemporaneous file, medical records, evidence from people who knew the deceased), and assessing the strength of the applicant's eligibility.

Mediation is generally mandatory

The Supreme Court of Victoria requires the parties to attempt mediation before a Family Provision claim proceeds to trial. The vast majority of estate-litigation matters resolve at or shortly after mediation. We prepare every matter with mediation in mind, while remaining ready to run a trial where settlement isn't available on reasonable terms.

Costs and who pays them

Costs in Family Provision matters typically come out of the estate, but not always — the Court can order costs against unsuccessful applicants in clear cases. For estates of moderate size, the cost of contested litigation can substantially erode the value left to distribute. We advise on the costs trajectory and settlement options at every stage.

Frequently asked questions

What is the 6-month deadline measured from?

From the grant of probate (if there's a will) or letters of administration (if there isn't). It is not measured from the date of death or the date you learned about the will.

Can I challenge a will without contesting it for inadequate provision?

Yes — those are two different things. A validity challenge attacks the will itself. A Family Provision claim accepts the will is valid but argues the deceased should have left you more.

If I challenge the will, do I lose what I was already left?

Not automatically. The Court can order a different distribution that is just and equitable, taking into account what you were already entitled to.

Next step

For a confidential conversation about a Victorian estate dispute — whether you are considering a claim or defending an estate — see our wills & estate planning services, meet our team, or contact us directly.