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Answers to frequently asked questions

Can I contest a Will if left out or not adequately provided for?

• Yes, you can make what is called a “family provision claim” against the estate for provision or further provision if what is provided is inadequate.

Who can challenge a Will?

In Victoria, the categories of persons who can challenge a Will or claim against an estate where there is no Will, is wide and includes:

• A husband or wife;
• A domestic partner or same sex partner;
• Children of the deceased and in some instances step children / grandchildren;
• Persons who were dependant on the deceased;
• Persons who the deceased was dependent upon such as a carer.

What do I need to show to succeed on my claim?

• Firstly, the court needs to be satisfied the Willmaker had a moral responsibility to make provision for you.
• A deceased wife, husband or domestic partner has a moral responsibility to properly provide for the other.

• A deceased parent usually has a moral responsibility to provide for his or her children.

• A deceased person who during his or her lifetime has assumed a moral responsibility to properly provide for someone may allow that person to succeed on his or her claim.

• Secondly, the court needs to be satisfied you have a financial need for provision/further provision as the case may be.

Is there a time limit on making a claim?

• Yes, a claim should be made within six months from the grant of probate or administration of the estate.

• It is possible in certain circumstances to make a claim outside the six months subject to leave of the court.

Can I afford to make a claim?

• Yes, you can. Most Will contests are settled at mediation and never go to trial which reduces the legal costs.

• We usually act “no win no fee”. If we agree to act “no win no fee” you would not need to pay any professional fees upfront.

• Further, if your case failed to settle and was lost at hearing you would not be liable to pay Galbally & O’Bryan any professional fees.

The information on this website is of a general nature only and may not reflect recent changes to certain areas of law. It should not be relied upon as a substitute for discussing your situation with a qualified legal practitioner.