Changes to Victorian laws covering Wills now in operation

Wills and Estates: 18 March 2019

Late last year, Kathy Wilson, an Accredited Specialist in Wills and Estates with our firm outlined the changes to Victorian laws covering Wills in her article Changes Victorian laws covering Wills. 

These changes are now in force in Victoria from 1 January 2015 and apply to estates where the deceased has died on or after 1 January 2015. The previous regime continues to apply to estates where the deceased died prior to 1 January 2015.

The Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) amended Part IV of the Administration and Probate Act 1958 (Vic) dealing with family provision claims against deceased estates.

What is a family provision claim?

A family provision claim is essentially an application made to a Court for an order that provision or further provision be made out of the assets of a deceased's estate.

These types of claim are commonly referred to as Part IV claims, TFM claims or contesting a Will (although this description may not be quite accurate).

Criteria

Either of the Supreme or County Courts may make an order that provision be made out of a deceased person's estate, notwithstanding the contents of their Will, where the Court is satisfied that:

• the claimant is an eligible person; and
• the deceased had a moral duty to provide for that person's maintenance and support; and
• the distribution of the deceased's estate as set out in the Will, or pursuant to the rules of intestacy, fails to make adequate provision for their proper maintenance and support.

Eligibility

One of the most significant changes brought about by these legislative reforms concerns eligibility to make a claim. The new legislation provides that an application for a family provision order may only be made by, or on behalf of, an eligible person.

An eligible person is defined as:

• the spouse or domestic partner at the time of death;
• a child of the deceased (including an adopted or step-child or someone who believed the deceased to be their parent and was treated as such) who, at the time of death, was:

o   under the age of 18;

o   a full-time student under the age of 25;

o   suffering from a disability.

• other children of the deceased not referred to above (i.e. adult children). However for these claimants there is an additional consideration for the Court being the degree to which these children are not capable of providing adequately for their own maintenance and support;
• a former spouse or domestic partner who was eligible to make a claim under the Family Law Act 1975 but either had not yet done so or such proceedings were not finalised and the claim cannot proceed after death.

Further eligible persons include the following, only if they were dependent on the deceased for their proper maintenance and support:

• a registered caring partner;
• a grandchildren;
• the spouse or domestic partner of a child (i.e. son or daughter-in-law) of the deceased where that child has died within one year of the deceased's death;
• a person who was or had been (and was likely to be in the near future) a member of the deceased's household.

Considerations

In making a family provision order, the Court must have regard to:

• the deceased's Will;
• evidence of the deceased's reasons for making the Will in the terms he/she did;
• any other evidence about the deceased's intentions with respect to the claimant.

The Court may have regard to:

• the relationship between the deceased and the claimant;
• any obligations or responsibilities of the deceased to the claimant, other eligible claimants and the beneficiaries of the estate;
• the size and nature of the estate;
• the financial resources of the claimant, other eligible claimants and the beneficiaries of the estate;
• any disability suffered by the claimant or a beneficiary of the estate;
• the age of the claimant;
• any contribution made by the claimant to the deceased's estate;
• any benefits already given to the claimant by the deceased;
• level of dependency or maintenance;
• liability of any other person to provide for or maintain the claimant;
• the character and conduct of the claimant;
• the effect any family provision order would have on the amounts other beneficiaries would receive;
• any other matter the Court considers relevant. 

Time for making a claim

An application for a family provision order must be made within 6 months after the date of the grant or probate or letters of administration, except with leave of the Court where appropriate outside of that timeframe.

If you or someone you know is considering making an application for a family provision order, it is important to properly understand your position to do so by seeking specialist advice.