Contesting a Will in Victoria: Part IV Family Provision Claims Explained
Being left out of a Will — or receiving less than you expected — can feel profoundly unfair, particularly if you were dependent on the deceased or had a close relationship with them. In Victoria, the Administration and Probate Act 1958 (Vic) provides a mechanism for eligible persons to apply to the court for adequate provision from an estate. This is known as a Part IV family provision claim. This article explains the key concepts in general terms. It is general information only and is not legal advice.
The difference between a provision claim and contesting validity
It is important to understand the distinction between two different types of Will challenge. A Part IV family provision claim does not challenge the validity of the Will — it accepts that the Will is valid but argues that it fails to make adequate provision for the claimant. By contrast, contesting the validity of a Will argues that the Will itself is not legally valid — for example, because the testator lacked testamentary capacity, was subject to undue influence, or because the Will was not properly executed.
Most Will disputes in Victoria are Part IV claims — they are more common, and the test is somewhat more accessible, than proving invalidity. This article focuses on Part IV claims.
Who is an eligible person?
Not everyone can make a Part IV claim. Under the Administration and Probate Act 1958 (Vic), an 'eligible person' is a person for whom the deceased had a responsibility to make provision and who received inadequate provision under the Will (or intestacy). Eligible persons include: a spouse or domestic partner of the deceased (including a former spouse in some circumstances); a child of the deceased (including an adult child and a stepchild in some circumstances); and a grandchild or a member of the deceased's household who was wholly or partly dependent on the deceased.
Adult children are eligible persons — and this is often contested. The court considers not only whether provision was made but whether, having regard to all the circumstances, adequate provision was made. Being an adult and self-sufficient does not automatically preclude a claim, though it is relevant to the amount any provision order might make.
The six-month time limit
A Part IV claim must be filed within six months of the date the Grant of Probate or Letters of Administration is issued. This is a strict deadline. The court has a discretion to extend time in limited circumstances, but extension is not guaranteed and the claimant must explain the delay.
This means that if you believe you have a claim, you should act immediately on learning that probate has been granted. Delays in getting legal advice can result in losing your right to claim entirely. Do not wait to see how the estate is distributed before acting.
What the court considers
In deciding whether to make a provision order and, if so, in what amount, the court considers a range of factors including: the nature and duration of the relationship between the claimant and the deceased; the financial resources and needs of the claimant; the financial resources and needs of other beneficiaries; the size of the estate; any contributions made by the claimant to the deceased's estate; and any other relevant circumstances.
The court applies a two-stage test: first, whether adequate provision has been made; and second, if not, what provision ought to be made. The court has a wide discretion in the second stage.
How claims are resolved
Many Part IV claims are resolved by mediation or negotiation before they reach trial. The court actively encourages parties to attend mediation. A negotiated outcome is often in everyone's interests — it is cheaper, faster and more certain than a contested trial.
However, where negotiation fails, the matter proceeds to a hearing in the Supreme Court of Victoria. The hearing can be lengthy and expensive. Legal costs can be — but are not always — ordered to be paid from the estate. This is another reason to get legal advice early and to assess the strength of your claim before commencing proceedings.
General information only. This article provides general information about the law in Victoria and does not constitute legal advice. Every situation is different — you should seek advice from a qualified Australian lawyer before making any decision based on this information. Liability limited by a scheme approved under Professional Standards Legislation.
Key takeaways
- A Part IV claim argues for adequate provision — it does not challenge the validity of the Will.
- Eligible persons include spouses, children (including adult children), grandchildren and dependants.
- You have six months from the date probate is granted to file your claim — act immediately.
- The court considers the relationship, financial needs, estate size and other circumstances.
- Many claims resolve at mediation — going to trial is costly and uncertain.
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