New laws on challenges to Wills apply from 1 January 2015

By Paul Watkins, Principal, MST Lawyers

New succession laws relating to challenges to Wills have commenced in Victoria. The changes apply to the estate of any person who dies on or after 1 January 2015. 

Before the new laws, there were no defined categories of who could make a claim. Any person who convinced the Court that they were “a person for whom the deceased had a responsibility to make provision” could make a claim.

Claims against estates were made by wider family members and also by others who were not family members.

Victoria has now introduced a category based system. Only an “eligible person” who fits into one of the categories can apply for a family provision order. There are 11 categories of eligible persons. These include:

• spouses and domestic partners;
• children, although there are different requirements if children are over 18 years;
• a registered caring partner;
• grandchildren;
• member of the household.

The new legislation is quite complex. It introduces different provisions and new concepts to this area of the law that will need to be worked out by the Court. However, the intent of the legislation is to reduce the number of claims and to limit the size of family provision orders made.

The time limit for challenges to Wills has not changed. A challenge must be issued within 6 months of the date of the grant of probate of the estate.

Clients may wish to review their Wills and estate planning documents in light of the changes.

Anybody seeking to challenge a Will will need to, as before, act promptly. Detailed instructions on the nature of the relationship with the deceased will be required to work out if the claimant fits into one of the categories and is an eligible person to make a claim. Even if they are an eligible person, there may be other requirements they need to satisfy.

For further information regarding the new succession laws, please contact our Wills & Estates team by email wills-estates@mst.com.au or by telephone +613 8540 0230.