Contesting a will in Victoria — who can make a claim, the time limit, what it costs, and what to expect

In this guide(13 sections)

If you're reading this, someone close to you has probably died — and on top of the grief, the will has come as a shock. Perhaps you were left out, left far less than you expected, or you're worried the will doesn't reflect what your loved one really wanted. Or perhaps you're the executor and someone has said they'll challenge it. These are hard, emotional moments. The good news: Victorian law gives certain people a fair way to ask the court to look again, and most claims are resolved by agreement rather than a trial. Below is how it works, in plain English. You don't have to work it out alone — fill in the enquiry form and Elisa will call you back. The first 30 minutes are free.

This guide is general information, not legal advice. Every estate is different, and time limits apply, so please get advice about your own situation early.

At a glance — contesting a will in Victoria

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What does "contesting a will" mean in Victoria?

In Victoria, contesting a will usually means making a family provision claim under Part IV of the Administration and Probate Act 1958 (Vic), asking the Supreme Court to order that more provision be made for you out of the estate. A family provision claim doesn't say the will is invalid. It accepts the will was validly made, but argues that it didn't make adequate provision for someone the deceased had a responsibility to provide for.

A less common kind of challenge argues that the will itself is invalid — for example, because the person lacked the mental capacity to make it, was pressured into it, or it wasn't signed and witnessed properly. These are very different claims, with different evidence and different risks, so it matters which one fits your situation.

The first 30 minutes are free, with no obligation. Book a free consultation → · or speak to Eliana, our assistant, any time on 03 4328 5084 — she'll get your matter to Elisa quickly.

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Who can contest a will in Victoria?

Only an "eligible person" as defined in section 90 of the Administration and Probate Act 1958 (Vic) can make a family provision claim. Broadly, the categories include:

• A spouse or domestic partner of the deceased at the time of death
• Children of the deceased, including adopted children — with different considerations for minor children, young adult children in full-time study, children with a disability, and other adult children
• Stepchildren
• A former spouse or former domestic partner, in limited circumstances
• Grandchildren
• A registered caring partner
• A member of the deceased's household, in some circumstances

For several of these categories, the person must also show something more — for example, that they were wholly or partly dependent on the deceased for their proper maintenance and support. The details of each category are technical, so the first step is always to check whether you fall within section 90 and what you'd need to show.

Being related to someone is not, on its own, enough. Friends, siblings and more distant relatives generally can't make a claim unless they fit one of the statutory categories.

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What does the court look at?

Under Part IV of the Administration and Probate Act 1958 (Vic), the court asks whether, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support, and whether the will (or the intestacy rules) failed to make adequate provision for them. If so, the court can order provision out of the estate.

In weighing that question, the court looks at the whole picture, which can include:

• Your relationship with the deceased and its nature and length
• Your financial position and needs — income, assets, health, housing, dependants
• The size of the estate and the competing claims on it
• What you contributed to the deceased's welfare or estate
• The deceased's reasons, if they explained them
• The position of the other beneficiaries

Family provision is about proper maintenance and support — it isn't about equal shares, and it isn't a way to punish a decision you disagree with. Outcomes are never guaranteed, and an honest early assessment of strengths and weaknesses is one of the most valuable things a lawyer can give you.

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How long do I have to contest a will in Victoria?

A family provision claim must generally be made within 6 months after the grant of probate or letters of administration, under section 99 of the Administration and Probate Act 1958 (Vic). The court can extend that time in some circumstances, but you should never rely on getting an extension — and once an estate has been distributed, your options can narrow considerably.

If you're unsure whether probate has been granted, or when, that can be checked. The safest course is to get advice as soon as you have concerns, even before probate is granted.

Worried about the time limit? That's exactly what the free first call is for. Book a free 30-minute call → · or reach Eliana any time on 03 4328 5084

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Can I challenge a will because it isn't valid?

A will can be challenged as invalid if the will-maker lacked testamentary capacity, was subject to undue influence, or the will wasn't made in the way the Wills Act 1997 (Vic) requires. In brief:

• Lack of testamentary capacity — the person didn't understand what a will is, the general nature of what they owned, or who might have a claim on them, often because of illness or cognitive decline.
• Undue influence — the person was coerced into making the will; persuasion or influence alone generally isn't enough.
• Improper execution — the will wasn't signed and witnessed as required. The Supreme Court does have power in some cases to admit a document that doesn't meet every formality, if it's satisfied the person intended it to be their will.
• Knowledge and approval — in some situations, questions arise about whether the person actually knew and approved of the will's contents.

These challenges usually turn on medical records, the circumstances in which the will was made, and evidence from the people involved. They can be harder and more costly than family provision claims, so careful early advice matters.

Caveats: if you have a genuine concern about a will's validity before probate is granted, it may be possible to lodge a caveat with the Supreme Court to stop a grant being made while the issue is looked at. A caveat should only be lodged on proper grounds, and it's worth getting advice before taking that step.

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What are the steps in a family provision claim?

Most family provision claims under Part IV of the Administration and Probate Act 1958 (Vic) follow a similar path, and many end at mediation rather than a trial. In general terms:

1. Early advice. Confirm you're an eligible person, check the time limit, and assess the strengths and weaknesses of a claim.
2. Information gathering. Obtain a copy of the will and details of the estate.
3. Notice to the executor. A letter putting the executor on notice of your claim, so the estate isn't distributed in the meantime.
4. Negotiation. Many matters are explored by correspondence before proceedings are filed.
5. Proceedings. If needed, a claim is filed in the Supreme Court of Victoria, with supporting affidavit evidence.
6. Mediation. Most claims go to mediation, and many settle there.
7. Hearing. Only if the matter doesn't resolve does it proceed to a hearing, where the court decides.

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I'm the executor and someone is threatening a claim — what should I do?

If you're an executor and you've been told a family provision claim may be made under Part IV of the Administration and Probate Act 1958 (Vic), you should generally hold off distributing the estate and get legal advice before taking further steps. Distributing while a claim is threatened or on foot can expose an executor personally.

Some general guidance:

• Don't panic, and don't distribute until you've had advice about the time limit and any notice you've received.
• Keep good records of the estate's assets, liabilities and everything you've done as executor.
• Stay neutral. An executor's job is to administer the estate properly, not to take sides in a family dispute — even when you're also a beneficiary.
• Communicate calmly. A measured early response often helps keep a dispute from escalating.

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What does contesting a will cost?

The cost of a will dispute in Victoria depends heavily on the matter — the type of claim, the size of the estate, how many parties are involved, and whether it resolves early or goes further — so it can't honestly be quoted as a single figure. That's why we discuss costs openly in your free 30-minute consultation, once Elisa understands your situation.

A few general points:

• Many claims settle at mediation, which usually keeps costs well below those of a contested hearing.
• Who pays costs is decided case by case. In settled matters, costs are often dealt with as part of the overall agreement; where a matter is decided by the court, costs orders depend on the outcome and the conduct of the parties. There's no guarantee that costs will be paid from the estate.
• You'll know where you stand. Any engagement includes a written costs disclosure and estimate before work begins, and updates if anything changes.

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What goes wrong in will disputes?

These are common situations in will disputes — described generally, not as any particular client's matter:

The deadline that passed quietly. A family member assumes there's plenty of time, waits to "see how things settle", and only seeks advice after the six-month period has run and the estate has been distributed.

The executor who distributed too early. Wanting to get things done, an executor pays out the beneficiaries while a claim has been flagged — and is then drawn into the dispute personally.

The wrong kind of challenge. Someone is certain the will is invalid, but the evidence of incapacity or undue influence is thin, when a family provision claim may have been the more realistic path.

The will that invited a claim. A will leaves out a dependent child or partner without explanation. A clearer will — and sometimes a written statement of reasons — can reduce the risk of a dispute after death. That's one reason careful estate planning matters.

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How we make it easy

How we make it easy: (1) a free, unhurried first call · (2) a straight assessment of whether you're eligible and how much time you have · (3) clear, written costs information before any work begins · (4) a focus on resolving things through negotiation and mediation where that's in your interests · (5) one lawyer, Elisa, with you throughout.

What happens when you call us: Eliana takes a few details — who has died, roughly when, whether probate has been granted, and your relationship to them — and passes them to Elisa, who calls you back. In that first conversation she'll listen, check the time limit, explain your options in plain English, and talk through costs honestly.

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Frequently asked questions

Who can contest a will in Victoria?

Only an "eligible person" under section 90 of the Administration and Probate Act 1958 (Vic) can make a family provision claim — including a spouse or domestic partner, children, stepchildren, and in some circumstances a former partner, grandchildren, a registered caring partner or a member of the household. Some categories must also show dependency on the deceased.

How long do I have to contest a will in Victoria?

Generally 6 months from the grant of probate or letters of administration, under section 99 of the Administration and Probate Act 1958. The court can extend time in some circumstances, but you shouldn't rely on it — get advice early.

What is a family provision claim?

A claim under Part IV of the Administration and Probate Act 1958 asking the court to order more provision for you from the estate, because the deceased had a moral duty to provide for your proper maintenance and support and the will didn't do so adequately.

Can an adult child contest a will in Victoria?

Adult children are eligible persons under section 90, but what they need to show depends on their circumstances. The court looks closely at need, the relationship and the competing claims on the estate.

Do will disputes go to court?

Many are resolved by negotiation or at mediation without a hearing. Only a minority proceed to a full hearing before the Supreme Court.

How much does it cost to contest a will?

It depends on the matter — the type of claim, the estate and how far it goes. Elisa discusses costs openly in the free 30-minute consultation, and any engagement includes a written costs disclosure before work begins.

What can an executor do if a claim is threatened?

Generally, hold off distributing the estate and get legal advice promptly. Distributing while a claim is threatened can expose an executor personally.

Can I stop probate being granted?

In some circumstances a caveat can be lodged with the Supreme Court to prevent a grant while a genuine concern about the will is looked at. It should only be done on proper grounds, so advice first is important.

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Feeling unsure? That's exactly what Elisa is here for

Grief and family disagreements are a painful mix. Elisa will listen, explain where you stand in plain language, and help you decide on a calm, sensible next step — with costs discussed openly from the start.

The first 30 minutes are free.

📞 Call 03 4328 5084

📧 info@fogartyoliverandrothschild.com.au

🌐 Fill in the enquiry form and Elisa will call you back →

📍 84 Chapel Street, St Kilda VIC 3182 · Monday to Friday, 9am–5pm.

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