Challenging a Deceased Estate: Seeking Fair Provision in Victoria
Seeking a Fair Provision
Being left out of a Will, or receiving less than you expected, can be upsetting. In Victoria, certain people may apply to the court for provision from a deceased estate if the Will, or the rules that apply when there is no Will, do not make adequate provision for their proper maintenance and support.
This is called a family provision claim. It does not mean that everyone who feels a Will is unfair can challenge it. The court considers the applicant's relationship with the deceased, their circumstances and the competing needs of others with an interest in the estate.
Who can make a family provision claim?
The Administration and Probate Act 1958 (Vic) defines the people eligible to apply. They include:
a spouse or domestic partner of the deceased at the time of death;
a child or stepchild of the deceased, including an adult child or stepchild;
a person who, for a substantial period, believed the deceased was their parent and was treated as their child;
a former spouse or domestic partner who meets the Act's requirements relating to proceedings under the Family Law Act 1975 (Cth) that could not be commenced or finalised because of the death;
a grandchild or registered caring partner of the deceased;
the spouse or domestic partner of a child of the deceased, where that child died within one year of the deceased; and
a person who was a member of the deceased's household at the time of death, or who had previously been a member and was likely to rejoin the household in the near future.
The legal requirements differ between these categories. The Act also distinguishes children and stepchildren who were under 18, full-time students aged between 18 and 25, or people with a disability at the date of death from other adult children and stepchildren. In particular, a grandchild, registered caring partner, qualifying spouse or domestic partner of a deceased child, or household member must show that they were wholly or partly dependent on the deceased for their proper maintenance and support. Being named in an eligible category is only the first step; it does not guarantee an order.
Can an adult child or stepchild claim?
Yes. Children and stepchildren can be eligible even if they were over 18, financially independent or estranged from the deceased. Whether a claim succeeds depends on the evidence. For an adult child or stepchild who was not a qualifying young person or a person with a disability at the date of death, the court considers, among other matters, how far they can reasonably provide for their own proper maintenance and support.
The court may also consider the history of the relationship, the applicant's needs, the deceased's responsibilities to others and the size of the estate. No particular family relationship guarantees a share of the estate.
When will the court make an order?
The Supreme Court or County Court may make a family provision order only if satisfied that the applicant is eligible, that the deceased had a moral duty at the time of death to provide for their proper maintenance and support, and that the distribution of the estate fails to make adequate provision for that purpose. Applicants in the dependency categories must also prove the required dependency.
The court can consider the Will and evidence of the deceased's reasons and intentions. Other relevant matters may include:
the nature and length of the relationship;
the deceased's responsibilities to the applicant, other eligible people and beneficiaries;
the size of the estate and its debts;
the applicant's financial resources, earning capacity, health and future needs;
contributions the applicant made to the deceased or the estate;
benefits the deceased gave to the applicant or others during their lifetime; and
the effect an order would have on other beneficiaries.
The court assesses each case on its facts. A successful claim does not necessarily result in an equal share or a particular percentage of the estate: any order is directed to the applicant's proper maintenance and support.
Is there a time limit?
Generally, an application must be made within six months after the grant of probate or letters of administration. The six months runs from the grant, not from the date of death. The court can extend time in appropriate circumstances, but an application for an extension must be made before the estate has been finally distributed. Earlier distributions can also affect what is available for a claim.
If you think you may have a claim, seek advice promptly. It can take time to confirm whether a grant has been made, gather financial information and assess the estate.
How can Baird & McGregor help?
Our estate litigation team can advise you on eligibility, the strength of a potential claim, the filing deadline and options for resolving the dispute. We can also advise executors and beneficiaries who receive notice of a claim.
Contact Baird & McGregor to discuss your circumstances.