Contesting a Will in Victoria: Eligibility, Deadlines, Costs

Written on Jun 2, 2026. Posted in News.

The passing of a loved one is a difficult time, and disputes over the contents of a will can add significant stress and complexity. In Victoria, the law recognises that certain individuals should be provided for in a will, and if they are not, they may have the right to challenge it. This process is known as a Family Provision claim. This guide provides a comprehensive overview of how to contest a will in Victoria, aimed at those considering a challenge.

Understanding Will Challenges in Victoria

In Victoria, a will can be challenged on two main grounds:

Invalidity: This is where the will itself is claimed to be invalid. This could be due to a number of reasons, including:
- Lack of testamentary capacity: The person making the will was not of sound mind.
- Undue influence: The person making the will was coerced or pressured.
- Fraud or forgery: The will is not a genuine document.
Family Provision Claim: This is where a person claims that the deceased had a moral obligation to provide for them in their will, and that the will fails to make adequate provision for their proper maintenance and support. This is the most common type of will challenge.

This article will focus on Family Provision claims.

Who is Eligible to Make a Family Provision Claim?

The Administration and Probate Act 1958 (Vic) sets out who is eligible to make a Family Provision claim. The list of eligible persons includes:

Spouse or domestic partner of the deceased.
Former spouse or domestic partner who would have been able to bring a claim under the Family Law Act 1975 (Cth) and has not remarried.
A child of the deceased (including adopted or step-children).
A grandchild of the deceased.
A person who was, or was likely to be, in a registered caring relationship with the deceased.
A person who was a member of the deceased’s household.

It is important to note that simply being on this list does not automatically mean you will be successful in a claim. The court will consider a range of factors to determine whether you have a genuine need for provision from the estate.

Time Limits for Contesting a Will in Victoria

There are strict time limits for making a Family Provision claim in Victoria. An application must be made within six months from the date of the grant of probate or letters of administration.

In some limited circumstances, the court may grant an extension of time, but this is not guaranteed. It is therefore crucial to seek legal advice as soon as possible if you are considering contesting a will.

The Process of Contesting a Will

The process of contesting a will in Victoria generally involves the following steps:

Initial Consultation: Seek advice from a lawyer specialising in wills and estates to assess the strength of your claim.
Negotiation: Your lawyer may attempt to negotiate a settlement with the executor of the will and other beneficiaries.
Commencing Court Proceedings: If a settlement cannot be reached, your lawyer will file an application with the Supreme Court or County Court of Victoria.
Mediation: The court will usually order the parties to attend a mediation to try to resolve the dispute.
Trial: If the matter is still not resolved, it will proceed to a trial where a judge will make a final decision.

Evidence Required to Support Your Claim

To be successful in a Family Provision claim, you will need to provide evidence to the court that demonstrates:

Your financial position: This includes your income, assets, liabilities, and financial needs.
The nature of your relationship with the deceased: The court will consider the closeness of your relationship and whether you were dependent on the deceased.
The size of the estate: The court will consider the total value of the estate and the claims of other beneficiaries.
Any contributions you made to the deceased’s estate or welfare: This could include financial or non-financial contributions.

Case-Type Examples

Example 1: The Adult Child Left Out of a Will

An adult son is left with a very small portion of his father’s multi-million dollar estate, with the majority going to his sister. The son has a young family and a large mortgage, while his sister is financially secure. In this case, the son may have a strong claim for a larger portion of the estate, as the will does not make adequate provision for his proper maintenance and support.

Example 2: The Carer

A woman spends ten years caring for her elderly and unwell neighbour. The neighbour had promised to leave her a significant inheritance in his will, but when he passes away, she discovers she has been left with nothing. In this situation, the carer may be able to make a Family Provision claim on the basis that she was a person who was in a caring relationship with the deceased and had a moral claim on the estate.

Settlement Options

The vast majority of will disputes are settled out of court. This is because litigation can be expensive, time-consuming, and emotionally draining. The most common settlement options are:

Negotiation: The parties agree to a settlement between themselves, usually with the assistance of their lawyers.
Mediation: An independent mediator helps the parties to reach a mutually acceptable agreement.

Costs of Contesting a Will

The costs of contesting a will can be significant. Legal fees will vary depending on the complexity of the case and the time it takes to resolve. In many cases, if a Family Provision claim is successful, the court will order that the claimant’s legal costs be paid out of the estate. However, this is not always the case, and if the claim is unsuccessful, the claimant may be ordered to pay the estate’s legal costs.

Conclusion

Contesting a will in Victoria is a complex legal process with strict time limits. If you believe you have been unfairly left out of a will or have not been adequately provided for, it is essential to seek expert legal advice as soon as possible. A lawyer specialising in wills and estates can help you understand your rights, assess the strength of your claim, and guide you through the process of challenging a will.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. You should seek legal or other professional advice before acting or relying on any of the content.