In Victoria, you generally have the freedom to decide who inherits from your estate. You can leave your assets to one person, several people or even exclude someone altogether.
But that freedom isn’t absolute. If you leave out a close family member or someone who depended on you financially, they may have legal grounds to challenge your will. This is known as a family provision claim, and it’s one of the most common reasons estates end up in dispute.
This guide helps explain how family provision claims work in Victoria, who can make one, and what both will-makers and executors should understand before issues arise.
Who do you legally need to provide for in your will?
Under Victorian law, you have what’s called freedom of testation. This means you can usually choose how your estate is distributed when you pass away.
However, that freedom sits alongside the Administration and Probate Act 1958 (Vic), which allows certain people to ask the court for further provision if they believe a will has failed to adequately provide for them.
It’s important to understand the difference between:
- Moral obligations: what you feel is fair or appropriate
- Legal obligations: what the law may require you to consider
You’re not legally required to leave your estate equally, or even leave something to every family member. But the court can intervene if an eligible person has not been left with proper support.
What is a family provision claim?
A family provision claim is made when someone believes they have been unfairly left out of a will, or not adequately provided for. They can apply to the court for a share of your estate, or in some cases, a larger entitlement.
Even though you can usually leave your estate to whoever you choose, Victorian law expects you to make proper provision for certain people, especially those who relied on you financially or were closely connected to you.
If an eligible person feels they were overlooked or treated unfairly, they can ask the court to review the will and, if appropriate, adjust how the estate is distributed.
Family provision claims are assessed case by case. There is no automatic entitlement, but the court has wide discretion to decide what is fair in the circumstances.
Who can challenge a will in Victoria?
Not everyone can challenge a will. Only eligible persons can bring a family provision claim in Victoria. This usually includes:
- A spouse or domestic partner (including ex-partners in some cases)
- A child of the deceased
- A stepchild
- A grandchild
- A person who was financially dependant on the deceased
Contesting a will: what does the court consider?
When deciding a claim, the court looks at factors such as:
- The size and value of the estate
- The financial needs and resources of the claimant
- The nature and length of the relationship with the deceased
- Any contributions the claimant made to the estate or family
- The reasons the deceased may have had for excluding or limiting provision
Are there any time limits?
Family provision claims must usually be made within six months of the grant of probate or letters of administration. Missing this deadline can make a claim much harder to pursue.
Family obligations in wills: can I leave someone out of my will?
Yes you can, but you need to understand the risks.
Leaving out a spouse, child or dependant increases the likelihood of a challenge, particularly if they are in financial need or were dependent on you.
If you intend to exclude someone, careful planning matters. This may include:
- Getting legal advice before finalising your will
- Clearly documenting your reasons for exclusion
- Preparing a letter of wishes to explain your decisions
- Structuring your family estate to reduce uncertainty
Blended families are one of the most common sources of disputes. Read more about considerations for blended families here.
What happens if a family provision claim is made?
If a family provision claim is lodged, the estate distribution is usually paused.
Many matters are resolved through mediation, which can reduce costs and avoid lengthy court proceedings. If no agreement is reached, the court will decide whether further provision should be made and how the estate should be divided.
Claims can be costly, time-consuming and emotionally draining for families, which is why planning ahead is so important.
What your executor needs to know
Executors play a central role when a will is challenged. If a family provision claim is made, the executor is responsible for:
- Defending the will
- Providing information to the court
- Managing delays to estate administration
- Acting in the best interest of the estate as a whole
Claims can significantly extend the administration process, sometimes by many months.
Choosing the right executor and ensuring they have access to legal support can make a substantial difference. Find out more about choosing the right executor.
Can executors be paid?
Yes, but not automatically. In Victoria, executors are not entitled to payment simply because they are named in a will. Payment usually occurs in one of three ways:
- The will expressly authorises executor commission
- All beneficiaries agree to payment
- The Supreme Court of Victoria approves commission
Executor commission is typically awarded as a percentage of the estate and reflects the time, effort and responsibility involved. Importantly, executors must act carefully and transparently, particularly where disputes or claims are involved.
Planning ahead: how to avoid will disputes
While family provision claims are common, many are avoidable with good advice and clear planning.
Practical steps include:
- Having your will prepared or reviewed by a solicitor
- Being open about complex family arrangements
- Updating your will as circumstances change
- Advising beneficiaries in advance if your decisions may come as a surprise
- Thinking beyond finances, including personal and practical wishes
Many people also include guidance on non-financial matters, including funeral arrangements.
Putting certainty around your final wishes
You can choose who inherits from your estate, but it’s worth understanding the legal duties that come with that choice.
Family provision claims are a reality of modern estate planning in Victoria. With the right advice, they can often be anticipated, managed or avoided altogether.
If you are making or updating your will, or acting as an executor and facing a potential claim, our team can help you navigate the process with clarity and care. Get in touch with our experienced team to find out more.
Disclaimer:
This article provides general information only and does not constitute legal advice. Estate planning and family provision claims depend on individual circumstances and the application of Victorian law. You should seek tailored legal advice before making decisions about your will, estate or executor responsibilities.
