Claims can be made for further provision from estates if relatives or loved ones believe that insufficient provision has been made for them.

To make a successful family provision claim in Victoria under that state’s Administration and Probate Act, a person must have had either a blood or a close relationship with the deceased person and have received inadequate or no provision from the estate.

Time Limits and Courts

• Claims must be brought within 6 months of obtaining the grant of probate (where the deceased person left a will) or letters of administration (where no will had been left).
• The court may give an extension of time so long as the estate has not been completely administered.
• An application can be made in either the County Court or the Supreme Court of Victoria, but cannot be brought in the Magistrates Court or in VCAT.

Obligations of the Willmaker

The willmaker must make provision for any person for whom he or she had a responsibility to provide for. De facto spouses and same-sex partners (now collectively called “domestic partners”) may claim if insufficient provision has been made. “Domestic partnership” includes relationships such as siblings who live together for a long time in a mutually supportive relationship.

Will a Claim for Further Provision Succeed?

The court applies the test – did the deceased person have a moral responsibility, and fail to observe their legal obligation to make adequate provision for the claimant? The claimant must have an economic need for support. The court will likely view claims by close family members more favourably than claims by less close family members.

Principles Used by the Court When Considering Claims

Principles include:

• the net value of the estate, that is, its size after debts, funeral, testamentary, and other liabilities have been deducted. If the estate is not big enough to be capable of redistribution, the action cannot succeed
• the age, sex, and health of the applicant
• if the applicant received any gift, transfer, or other provision made by the deceased during their life
• how close the relationship was between the applicant and the deceased person
• the financial resources of the applicant. An applicant will be entitled to provision only if an economic need for provision can be shown.
• the character and conduct of the applicant

The court has power to refuse applications if applicants’ conduct towards the willmaker was unsatisfactory.

 

If you wish to discuss any of the above matters, contact:

Paul Gibney, solicitor, or his assistant, Christopher Chenoweth

• Email [email protected]
• Email [email protected]
• Phone (02) 6049 6666

John Gunson, solicitor, or his assistant, Sue Tanner

• Email [email protected]
• Email [email protected]
• Phone (02) 6049 6666

 

Quick Links:

Victorian Administration and Probate  Act 1958 [External Link]

Wills, Financial Powers of Attorney, and Medical Powers of Attorney
Deceased Estates Administration
Family Provision Claims – New South Wales