Changes to Victorian laws covering Wills

Wills and Estates: 18 March 2019

The laws which enable people to challenge the wishes of a Willmaker have been tightened.  The purpose of the changes is to stop unmeritorious claims such as those by distant relatives; neighbours and friends.

Family provision legislation has been in place in developed countries for centuries. The Legislation recognises that not all Willmakers are wise and just and, in the case of intestate estates, that the intestacy provisions will not be applied fairly in all cases.

In Victoria, from 1904 until 1998, only spouses, former spouses in receipt of maintenance or children were eligible to apply for family provision orders.  Children included adult children.  Family provision legislation in other states and territories included protection for these classes.  Many other Commonwealth and European countries have legislation that protects the rights of immediate family to inherit.  Many European countries have 'forced heirship' rules which specifically quarantine part of a Willmaker's estate for their spouse and children.

In 1998, the government introduced legislation in Victoria that was wider than anywhere else in the world, extending the obligations of Willmakers beyond their immediate family and providing an opportunity for unmeritorious claims.  The Legislation removed the list based eligibility provisions and instead permitted anyone who could show a moral obligation, and a corresponding financial need, to make a claim against a Willmaker's estate.   The legislation imposed further restraints on a Willmaker's freedom of testation and led to claims by people who might be described as 'fringe-dwellers' (such as neighbours, friends, paid carers, nieces, nephews and grandchildren).  As the Legislation was framed very broadly, it was often difficult to determine whether or not a claim might succeed.

The Victorian Law Reform Commission has recently reviewed the law and recommended narrowing the class of applicants to a list based class, similar to the New South Wales provisions.  The government has adopted some of the recommendations of the Commission but has decided to narrow the list of classes eligible to make a claim.

Broadly, those eligible to make a claim are:

• Spouses, domestic partners and certain defined former spouses
• Children, step-children, others who believed they were children and were treated as children
• Certain registered caring partners
• Certain grandchildren
• Certain spouses or domestic partners of a child of the deceased
• Certain persons who were, or would likely have become members of the deceased's household.

There are other provisions in the legislation which affect how the Court will consider a family provision claim.   The legislation affects Wills of persons who die on ar after 1 January 2015.  For anyone considering making a claim, it is important have obtain advice about the effects of the new legislation.

At Aitken Partners we have two Accredited Specialists in Wills & Estates in our Wills & Estates team who have been working with the Law Institute of Victoria to ensure the changes to the legislation operate fairly and justly.  We are able to provide specialist advice in this area.