New legislation changing the way wills can be contested

The Victorian government passed the Justice Legislation Amendment (Succession and Surrogacy) Act on 16 October, just before the deadline was crossed before it moved into caretaker mode.

The Act includes significant amendments to the laws governing the contesting of wills, that is, claims by those who consider that a will has not properly provided for them.

Since the removal of any relationship requirement between a claimant and a deceased person in 1996, the courts have dealt with a wide range of claims, not only by spouses and children of the deceased person, but also grandchildren, nephews and nieces, carers and even neighbours.

The new Act now narrows the range of people who can make a claim. A spouse or domestic partner can challenge the will, as can a former spouse or domestic partner where there was not a property settlement between the deceased person and the claimant.

A child of the deceased person can challenge a parent's will. There was a late and significant change in the proposed law in this respect. In the first draft of the bill there was a requirement that children must be financially dependent upon the deceased at the time of death to make a claim. It was felt by many that this could have produced some very unfair outcomes and we are glad to see that the legislation which finally passed removed the dependency requirement in relation to children.

Carers, grandchildren and spouses or domestic partners of a child of the deceased may be able to bring a claim but only if they were wholly or partly dependent on the deceased.

It appears that the new laws will operate from 1 January 2015.

For more information contact:

Justin Hartnett
Principal
Harwood Andrews
T: 03 5225 5220
E: jhartnett@harwoodandrews.com.au