Challenging a will in Victoria: who has standing and what grounds apply

Two different challenges, two different questions

When someone feels let down by a will, they often speak loosely about wanting to "challenge" it. In Victoria, that word covers two quite separate legal pathways, and the distinction matters from the first conversation. The first is a family provision claim, where an eligible person accepts that the will is valid but asks the court for a larger share of the estate. The second is a challenge to the validity of the will itself, arguing that the document should not stand as the deceased's true testamentary intentions.

These pathways involve different eligibility rules, different evidence, and different outcomes. Understanding which one fits your situation, if either does, is the critical first step.

Family provision claims under Part IV

A family provision claim, sometimes described as a claim for further provision, is made under Part IV of the Administration and Probate Act 1958 (Vic). It does not dispute that the will is genuine. Instead, it asks whether the deceased made adequate provision for the proper maintenance and support of a person they had a responsibility to provide for. If the court finds provision was inadequate, it can order that more be paid out of the estate.

Not everyone can bring such a claim. The legislation limits standing to defined categories of eligible person, which broadly include:

• Spouses and domestic partners: a person who was married to, or in a registered or genuine domestic relationship with, the deceased at the time of death.
• Children: natural, adopted, and in some cases stepchildren, along with those who believed the deceased was their parent and were treated as such.
• Former partners: a former spouse or domestic partner who would have been able to pursue proceedings under family law but had not yet done so.
• Dependants: certain people, including some grandchildren and household members, who were wholly or partly dependent on the deceased for their support.

Falling within a category is only the starting point. The applicant must also show the deceased had a moral duty to provide for them that the will fails to meet.

What the court weighs

The court does not simply divide an estate according to who feels aggrieved. It considers a range of factors, including the nature and length of the relationship with the deceased, any obligations the deceased owed to the applicant and to other beneficiaries, the size and character of the estate, and the financial resources and needs of the applicant. The applicant's character and conduct, and any contributions they made to the deceased's welfare, may also be relevant.

Timing is equally important. A family provision claim must generally be commenced within six months of the grant of probate or letters of administration. The court has a discretion to allow a claim out of time in limited circumstances, but that discretion cannot be assumed. Acting promptly protects your position and avoids the added hurdle of seeking an extension.

Contesting the validity of a will

The second pathway is fundamentally different. Here the argument is that the will, or a part of it, is not legally valid and should not be admitted to probate. If a challenge succeeds, the court may fall back to an earlier valid will or, if none exists, to the rules of intestacy. The recognised grounds include:

• Lack of testamentary capacity: the will-maker did not understand the nature of making a will, the extent of their property, or the claims of those who might expect to benefit.
• Lack of knowledge and approval: the will-maker did not truly know and approve the contents of the document they signed.
• Undue influence: the will reflects pressure or coercion that overbore the will-maker's own wishes, rather than persuasion or ordinary influence.
• Improper execution: the formal requirements for signing and witnessing a valid will were not met.

These grounds turn heavily on evidence, such as medical records, the solicitor's file, and accounts from those present when the will was made. Suspicion alone is rarely enough, so early advice about the strength of the available evidence is valuable.

The value of acting early and considering mediation

Whichever pathway applies, time and information work in your favour. Records fade, witnesses become harder to locate, and strict time limits can close off options entirely. Obtaining advice early allows the merits to be assessed calmly before decisions are made.

It is also worth remembering that most estate disputes do not reach a trial. Mediation resolves a great many claims, often more quickly and at lower cost than contested litigation, and with outcomes the parties help shape themselves. A measured approach frequently serves everyone involved, including the relationships that may need to endure after the estate is settled.

This article is general information only and does not constitute legal advice. Cohen Lawyers recommends that you obtain specific legal advice in relation to your circumstances before taking any action. If you need advice about an estate dispute or a family provision claim, contact our office on 1300 610 669.