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VIC Can My Partner's Children Contest His Will?

Discussion in 'Family Law Forum' started by jane doubov, 2 November 2014.

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  1. jane doubov

    jane doubov Member

    27 October 2014
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    My partner of nearly 8 years whom I have lived with all this time has changed his will so that everything we own, except $10,000 left for me, has been left in a trust so that I can live in the house free of charge until I meet someone or die and then it is left for HIS grandchildren and my children, and his children get nothing.

    Can I contest this? What are my rights regarding contesting a will?
  2. Sarah J

    Sarah J Well-Known Member

    16 July 2014
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    Hi Jane,

    1. Generally, the testator (will maker) has absolute freedom in how they wish to distribute their assets after their death.
    2. You cannot contest a will until the testator is deceased and the executor is applying for probate. This is because prior to death the will may be changed or altered and has no legal effect.
    3. A potential beneficiary (spouse/partner, child of the deceased or any other person being maintained by the deceased immediately prior to his death) can contest a will after the testator's death. Spouse/partner generally should have some share in the assets (a life estate counts) and any other person must show that they were dependant on the deceased or maintained by him for some time prior to his death.
    4. Alternatively, you can contest the will itself (i.e. argue that it is invalid). To do this, you will need to show that the testator lacked mental capacity to make the amendments/will at the time of execution. Therefore, you will need to show that the testator (1) did not know the significance of making a will; (2) did not fully comprehend the extent of his assets; and (iii) did not turn his mind to any potential beneficiary who may lay claim to his estate (i.e. children, grandchildren, spouse/partner).

    Remember that these are his assets. Nobody has an interest or claim to them as of right. Any disposition under the will is purely a gift. Of course, for a spouse/partner, if you were to contest the will, the court will consider what you would likely have gotten if the death was a divorce/separation instead and in that case, what would have been reasonable under a financial division settlement. But for anyone else, it should be solely up to the will-maker's discretion.
  3. winston wolf

    winston wolf Well-Known Member

    21 April 2014
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    As @Sarah J said you cant contest/challenge a will until it come into effect(when the will maker dies)
    If this will is as you describe it would be ripe for a challenge. Of course you would blow a large chunk of it doing so.
    The outcome of the challenge could vary greatly depending on the circumstance of all involved.
  4. Sophea

    Sophea Well-Known Member

    16 April 2014
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    Yes assuming that the will remains as is until your partner dies, both you and the children of your partner would have grounds to make a family provision application, for a share of the estate. However nothing is guaranteed. You need to demonstrate dependance, and laws are tightening in this area.

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