Inheritance disputes are on the rise across Australia, and Victoria is no exception. With over 10% of wills facing legal challenges and 74% of disputes resulting in modified distributions, it’s essential for Victorian families to plan carefully to protect both their assets and family relationships.
The Victorian Legal Landscape
Victoria’s succession law is governed primarily by the Wills Act 1997 (Vic) and the Administration and Probate Act 1958 (Vic). The latter includes the state’s family provision laws, which empower the court to override a will if it finds the deceased failed to make adequate provision for eligible persons. These laws aim to balance testamentary freedom with obligations to provide for close family.
Unlike many other jurisdictions, Victoria does not impose inheritance tax, but family provision claims and probate disputes can significantly erode estate value and create long-lasting family rifts.
Common Causes of Disputes
- Perceived unfairness in the distribution of assets
- Exclusion of close family members from the will
- Ambiguous or outdated wills
- Allegations of undue influence or diminished capacity
- Blended families where stepchildren or second spouses feel disadvantaged
Ten Legal Strategies to Prevent Disputes
1. Draft a Clear, Valid Will
The cornerstone of dispute prevention is a valid and clearly written will. In Victoria, for a will to be valid under the Wills Act 1997 (Vic), it must:
- Be in writing
- Be signed by the will-maker
- Be witnessed by two people present at the same time
Avoid ambiguous language and regularly review your will to reflect changes in family or financial circumstances.
2. Appoint a Capable Executor
Choose an executor who is organised, impartial, and capable of handling legal and financial responsibilities. A trusted family member may suffice, but in complex or high-value estates, consider appointing a professional such as a solicitor or trustee company.
The executor must apply for probate and administer the estate in accordance with the will and Victorian law.
3. Communicate Your Intentions
Lack of communication often leads to misunderstandings and challenges. While it may be uncomfortable, explaining your intentions to beneficiaries can prevent future conflict. Consider writing a non-binding letter of wishes to accompany your will.
This is especially important if you plan to treat beneficiaries unequally or exclude someone entirely.
4. Address Potential Family Provision Claims
Under Part IV of the Administration and Probate Act 1958 (Vic), certain people can apply to the Supreme Court of Victoria for a greater share of the estate if they believe they haven’t received adequate provision. Eligible claimants include:
- Spouses and domestic partners
- Children and stepchildren
- Dependent grandchildren
- Individuals who were financially dependent on the deceased
Legal advice should be sought when drafting the will to minimise the risk of such claims, particularly in blended family situations.
5. Use Testamentary Trusts
Incorporating a testamentary discretionary trust in your will can provide flexibility, asset protection, and tax benefits for beneficiaries. It also allows income to be distributed according to individual circumstances over time, helping to meet varying needs and reducing disputes.
This is particularly beneficial when:
- Beneficiaries are minors or have disabilities
- Protecting assets from divorce or bankruptcy is important
- There are concerns about a beneficiary’s ability to manage funds
6. Secure Superannuation Death Benefits
Superannuation is not automatically covered by a will unless it is paid into the estate. Ensure you complete a Binding Death Benefit Nomination (BDBN) to direct super benefits to your intended beneficiaries. In Victoria, this must be properly executed and updated regularly.
Consider the tax implications of super distributions and the eligibility of your nominated dependants.
7. Clarify Ownership of Non-Estate Assets
Not all assets fall under the estate. Jointly owned assets, family trusts, and company structures are typically non-estate assets. Clearly document:
- Joint tenancy arrangements
- Trust deeds and appointor roles
- Shareholder agreements
These documents should align with your estate plan to avoid unintended outcomes.
8. Plan for Incapacity with Powers of Attorney
Ensure you have an Enduring Power of Attorney (for financial and personal matters) and an Appointment of Medical Treatment Decision Maker under the Medical Treatment Planning and Decisions Act 2016 (Vic).
These documents protect your interests if you lose capacity and reduce the likelihood of guardianship disputes.
9. Consider the Needs of Blended Families
In Victoria, stepchildren and domestic partners may have standing to challenge a will. Address their needs either through provisions in the will or by setting up separate trusts or life interests.
If you wish to exclude someone who might have a valid claim, obtain legal advice and document your reasoning. Although not binding, this may assist the court in understanding your intentions.
10. Seek Tailored Legal Advice
No estate is too simple for a tailored legal review. Victorian succession law is complex and evolving. A solicitor can help:
- Ensure compliance with relevant laws
- Draft enforceable and equitable provisions
- Plan for tax efficiency
- Mitigate risks of litigation
Final Thoughts
Effective estate planning is not just about who gets what—it’s about preserving family harmony, minimising legal battles, and ensuring your wishes are honoured. By proactively addressing legal risks and family dynamics, you can prevent costly and emotionally draining disputes.
Call to Action
At Hayton Kosky, we guide Victorian families through all aspects of estate planning and dispute prevention. Whether your affairs are simple or complex, our experienced legal team can help you protect your legacy with clarity and confidence.
👉 Book your estate planning consultation today and give your family the peace of mind they deserve.