When you are one of the beneficiaries of a Will,  you are not just inheriting the wealth of the deceased. You are also getting their blessings in the form of their hard-earned money. But what happens when you feel that someone decided to unfairly sideline you in a Will? 

Navigating the process of probate application in Victoria is complex when there are objections to the Will. However, these instances do happen often. That’s why we are here to provide you insights into what you face when deciding to legally challenge a Will and understand the nuances that might tip the scales in your favour.

Decoding the Legal Tapestry: Part IV Applications

In the intricate landscape of Will disputes, the focal point is often the Administration and Probate Act 1958 (Vic), which serves as the legislative guidebook in Victoria, Australia. Within this legal tapestry, the compass guiding those contemplating a challenge is commonly referred to as ‘Part IV applications.’

Part IV of the Administration and Probate Act 1958 (Vic) provides a comprehensive framework, offering clarity on key aspects related to Will disputes. Here, we delve into the critical elements illuminated by this legal provision:

Eligible Claimants

Part IV of the Act establishes the category of individuals who may be eligible to make a claim against a Will. These claimants are typically individuals who believe they have not been adequately provided for in the deceased person’s Will. The Act outlines specific criteria that determine eligibility, recognising the importance of addressing genuine concerns regarding inheritance.

Factors Considered by the Court

One of the distinctive features of Part IV applications is the consideration of various factors by the court. The Act lays out a comprehensive list of elements that the court takes into account when adjudicating a claim. These factors may include the financial needs and circumstances of the claimant, the relationship between the claimant and the deceased, as well as any contributions made by the claimant to the deceased’s welfare or estate.

The Ticking Clock for Initiating a Claim

Time is of the essence when it comes to Part IV applications. The Act sets forth a specific timeframe within which an eligible claimant must initiate the legal proceedings. This temporal constraint underscores the importance of prompt action and emphasises the need for potential claimants to be aware of and adhere to the prescribed deadlines.

Unraveling the Part IV Application Tapestry

A Part IV application, akin to a beacon of justice, is a court plea seeking equitable provision from the estate, aptly termed ‘Family Provision Orders.’ If the testamentary disposition appears unjust or the intestacy laws operate unfairly, this legal avenue might be your recourse.

According to section 91 of the Act, the court can only grant a Family Provision Order if it ticks three crucial boxes:

• The claimant qualifies as an ‘eligible person.’
• The deceased bore a moral duty to provide for the claimant’s maintenance.
• The estate’s distribution falls short of ensuring proper maintenance and support for the claimant.

Unmasking the Eligible Warriors: Who Can Challenge?

When filing for the probate costs in Victoria, one must understand that Section 90 of the Act unfurls the eligibility criteria for claimants, defining ‘eligible persons.’ The requirements include:

• Spouses (including domestic partners)
• Natural or adopted children
• Individuals treated as children by the deceased
• Grandchildren are financially dependent on the deceased
• Household members are financially reliant on the deceased

While this list provides a compass, the definition isn’t confined to these categories. Even if you don’t fit neatly into these boxes, seeking legal counsel for probate in Victoria might unearth the potential for a successful claim.

Painting the Financial Canvas: Demonstrating Need

Becoming an eligible claimant is merely the tip of the iceberg. Successfully navigating the legal terrain requires showcasing financial need. The court only intervenes to the extent necessary to meet those needs, making the strength of your claim directly proportional to your financial requirements.

The Court’s Dilemma: Balancing Testamentary Freedom

“Why make a Will if it can be challenged?” – a common lament. The court, when weighing a Family Provision Order, respects the testamentary freedom of the deceased. This freedom allows them to distribute their estate as they deem fit.

In its deliberation, the court considers the Will‘s terms, the deceased’s intentions, and any evidence outlining the reasons behind specific dispositions. A letter from the deceased elucidating their decisions could play a pivotal role.

Factors in the Judicial Kaleidoscope

Section 91(A)(2) adds hues to the judicial canvas, outlining factors the court may consider:

• Family relationships and their nature
• Obligations to the claimant and other eligible parties
• Estate size, debts, and financial resources
• Physical, mental, or intellectual disabilities
• Age and contributions to the estate

Additionally, during the probate in Victoria, the court can consider any matter it deems relevant, acknowledging the intricacies of family dynamics.

Navigating the Legal Labyrinth: Seeking Counsel

If you find yourself unjustly excluded, the first step is to consult an Estates Litigation solicitor promptly. Timing is the linchpin in Part IV claims, necessitating initiation within six months from the Grant of Probate in Victoria. Delaying this crucial step could jeopardise your claim, so act swiftly to ensure your rightful share.

Are you seeking the right legal counsel to understand Probate, Letters of Administration and various other legal aspects of Will? Connect with Probate Consultants today.