Will Disputes & Deceased Estate Litigation
It can happen that sometimes proper provision has not been made for a person.
This might arise because the Will of a deceased person fails to make that provision. Alternatively, where there was no Will, there is a statutory formula that sets out how a deceased person’s estate is to be distributed, and it can happen that that formula might fail to make proper provision for a person in all the circumstances.
In either situation, the Victorian Supreme Court can make orders altering a Will, or varying the statutory formula, so that that proper provision for a person is in fact made. These types of claims are known as “Part IV claims” and as “testator’s family maintenance claims”.
Claimants might be a spouse, domestic partner or child of the deceased. The list of eligible claimants is more extensive than that and we can discuss that with you if you have a query.
At McNab, McNab & Starke we handle many such cases every year, whether acting for the claimant or for the estate in defending such claims.
Family Provision Claims
Assistance for beneficiaries of a Will
Will Disputes and Contests
Part IV Claims
Deceased Estate Litigation
Can I take on the role of executor even though I might want to bring a Part IV claim to challenge a Will?
Yes. This is so even if there is no other executor. The role of an executor extends beyond any claim that you might have regarding the Will having made inadequate provision for you and there is no reason why you should give up the ability to handle those tasks if you don’t want to. If you brought a Part IV claim the other executors or, if there are no other executors, one of the main beneficiaries in the Will, would perform the role of handling the opposition to your claim.
We can't find the original Will
Simply because the original Will cannot be found does not mean that the Will fails. If it was last seen in the hands of the deceased, a Court might take the view that the Will was cancelled by the deceased destroying it. That is not always the case though, for example the Will might not have been in the possession of the deceased when it was lost. The answer depends very much on the specific circumstances. If a photocopy of the Will is available the administration of the estate can sometimes proceed based on the terms of the photocopy.
Can I see a copy of the Will?
Many people have a right to see the Will of a person who has died. The circumstances vary depending on the relationship of the deceased to you, when the deceased died and when the Will was made. We can give advice on your specific circumstances. Once the Will is lodged with the Registrar of Probates and a grant made it becomes a public document and can be inspected at the Registrar’s office. Sometimes time is important and it is better to lodge a caveat at the Registrar’s office and obtain a copy of the Will once the Registrar lets you know that the grant application has been lodged. Lodging a caveat is not a step to take lightly and should only be done if you have consulted us about your position first.
The executors won't tell me what is happening in the estate, what can I do?
If you are a beneficiary of the Will you are entitled to know the progress of the administration and to be provided with accounts by the executor. Often though executors do not provide this information and if a beneficiary is concerned then the executors can be made to comply with their obligations.
The executor seems to be taking a long time to apply for a grant, can I do anything?
You can bring an application in the Court for the executor to show cause why he or she should not be replaced with another person to administer the Will. The administration of an estate cannot be held up simply because an executor fails to start his or her task.
What does this word mean and how does it affect me?
See ‘Some common words explained‘. If the word you are enquiring about is not covered, please call us and we can assist.
We can help
We will respond within the next business day. You can also call 03 9670 9691.