A family provision claim is another name for contesting a will. This occurs when the parties agree that the Will is valid, but one or more people claim that they have not been properly provided for from the deceased’s estate. They will argue that the estate did not leave them enough money to cover expenses such as education and general living expenses in the future.

A family provision claim is the same as a will contest. That is, you may not have been adequately provided for in the estate or you may have been completely left out of the Will.

This changes from state to state.

Victoria

• Husband/wife, spouse 
• Children, stepchildren, adopted children, believed the deceased was a parent, grandchildren 
• A person who at the time of the deceased’s death was a member of the household

In Victoria – within 6 months from a Grant of Probate.

The grounds for contesting a will varies by state. The underlying principles are that you must show the court that you are an eligible applicant and that the deceased had a moral obligation to provide for your financial and personal health needs.

You can, indeed. Only after Probate has been granted in Victoria and New South Wales, can you contest a Will.

The cost of contesting a will is determined by a variety of factors and varies from one law firm to the next. Unlike many law firms, Stratus Legal Group does not charge hourly rates. Because we believe that this can slow down a case, we offer our services at a fixed fee and on a No Win No Fee basis. In most cases, the estate pays the parties’ legal fees, but these fees can sometimes be limited.

We have represented many clients from various states and regions. Your contested Will case can be handled over the phone, via email, or via Zoom.

The majority of contested Will cases are settled before going to trial. In fact, over 95% of our contested Will cases settle prior to or during mediation.

Mediation is an important part of most legal proceedings, but it is especially important when contesting a will. The courts prefer that the parties resolve their dispute before proceeding to a final hearing, and mediation is a strong and efficient forum for reaching an agreement. The court will order the parties to attend mediation in the majority of contested Will cases.

Yes, a large number of cases are settled before going to a final trial before a judge. Our success rate in settling cases prior to trial is 98 percent, which saves our clients the heartache and stress of a trial.

A person named in the Will or any prior Will (beneficiary or other person), spouse (at the time of death), domestic partner, parent or guardian of the deceased’s children, person entitled to a share of the estate if the deceased died intestate (died without a Will), or creditor of the estate can inspect a copy of the Will in Victoria under section 50 of the Wills Act.

Yes, you certainly can. When the deceased did not have a Will, the same laws apply to contesting the estate. Because of your individual situation, you may discover that the intestacy entitlement does not adequately provide for you. Your claim will be determined by your relationship with the deceased and your pre-death reliance on them.

The majority of properly drafted Wills include a clause that revokes any previous Wills. If a Will is found to be invalid, but a prior Will (also known as the penultimate Will) was made, the prior Will may be considered valid. It can be contested in that case if somebody was not adequately provided for in the Will. If there is no prior Will, the estate will fall into intestacy, and the estate will be distributed according to intestacy laws. If a person believes the provisions made in an intestate estate are insufficient, they may contest the estate if they can prove their case.

If it can be proven that the Will maker lacked mental capacity at the time of making their last Will, the court may rule that their last Will is invalid. If this was the case, probate would be granted using the prior Will (also known as the penultimate Will). They may be able to contest their penultimate Will if it failed to adequately provide for a valid claimant. If there was no prior Will, the estate would fall into intestacy, and the estate would be distributed according to the state’s intestacy laws. If an eligible claimant has not been adequately provided for, they may be able to contest the Will.

Contesting Probate is also recognised as contesting the validity of a Will, and it involves contesting the alleged invalid Will’s Grant of Probate. If the correct Will is found, or if the estate is found to be intestate (i.e., the estate is distributed according to the law due to the lack of a prior Will), then someone with a claim and eligibility may contest the Will or the estate.

The procedures for contesting a will are governed by the laws of the state where probate was granted. It is strongly advised that you seek immediate legal advice before filing any claim, as the estate may seek legal expenses from you if you file a false claim.