Contesting a Will (Family Provision Claims)

Wills and Estates: 18 March 2019

Wills & Estates FAQ: What is a family provision, or Part IV, claim?

A family provision, or Part IV claim is an application made to a Court for an order that greater provision be made for the applicant out of the assets of a deceased's estate.Broadly, the applicant must show that:

• The deceased had a moral obligation to make adequate provision for the applicant in the Will; and
• The provision made for the applicant in the Will was inadequate, having regard to the applicant's financial needs and resources.

Who is eligible to make a family provision claim?

The following eligibility requirements apply in Victoria:

Deaths on or before 31 December 2014

If the deceased person died on or before 31 December 2014, any person to whom the deceased owed a moral obligation may make a family provision claim against the estate. There are no closed categories of claimants for deaths which occurred prior to this date. Eligible claimants may include any type of family relations, or even non-relatives, such as long term friends or carers.

Deaths on or after 1 January 2015

If the deceased person died on or after 1 January 2015, then only the following people are eligible to make a claim:

• a spouse or domestic partner of the deceased 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:
  • under the age of 18;
  • a full-time student under the age of 25; or
  • suffering from a disability.
• 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; and
• 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.

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

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

What are the time limits in which a family provision claim must be made?

A family provision claim must be made within 6 months of the date of the Grant of Probate.

In some limited circumstances, an application may be made to extend the time, but only where the estate has not yet been fully distributed.

What will the Court consider?

In deciding whether to make an order for further provision, the Court must balance the testator's freedom to leave property to whomever they please, with the moral duty owed by the testator to the claimant.  

From 1 January 2015, the following considerations apply:

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.

What is the procedure for contesting a Will?

If you are considering contesting a Will, you should firstly consult specialist Wills & Estates lawyers, such as Aitken Partners, to advise you on your prospects of success.

Aitken Partners will proceed to gather all necessary information, including a copy of the Will and a list of the deceased's assets and liabilities, and obtain detailed instructions on the factors listed above, before advising on the claim.

If the matter cannot be settled in early negotiations, the claim must be filed in Court within 6 months of the Grant of Probate. The parties will then prepare and exchange affidavits or position statements setting out the reasons the claim should or should not succeed, having regard to the relevant factors listed above. The matter will then be referred to a mediation, which is a meeting between the parties and their respective lawyers for the purpose of negotiating a settlement of the matter. Mediation is successful in resolving the majority of family provision claims.

What about the legal costs?

An executor is usually entitled to have all of their legal costs in defending a family provision claim paid or reimbursed from the estate.

A successful claimant will usually be entitled to have most of their costs paid or reimbursed from the estate. An unsuccessful claimant whose claim is without merit will not usually have their costs paid from the estate, and may even have to pay the estate's costs of the litigation. It is essential to obtain proper specialist advice on the merits of your claim prior to commencing proceedings.

Aitken Partners will endeavour to resolve your dispute as efficiently and cost-effectively as possible.

In certain circumstances Aitken Partners may be able to act for a potential claimant on a No Success No Fee basis. Please enquire to see if you qualify for this arrangement.

Can a claim be made even if there is no Will?

Yes, it is also possible to contest the distribution of an estate under an intestacy, and the same considerations will apply as if the deceased had made a Will in the same terms as the intestacy provisions (ie. an assessment of moral duty and applicant's needs).         

In which State must the claim be made?

A family provision claim must be made in the State in which the deceased's assets are located, regardless of where the claimant resides. Aitken Partners is able to advise you on the correct jurisdiction, and commence claims in States other than Victoria if necessary.