Making a Family Provision Claim

Date: October 27, 2016
Author: Harriet Warlow-Shill
Posted in: Insights


In Victoria, claims on a will or redistribution of a deceased person’s estate is administered by Part IV of the Administration and Probate Act 1958(Vic). Any person can apply to the courts to redistribute a deceased person’s estate if they believe that the deceased person had a responsibility to provide for them and did not adequately do so upon their passion. Every State and Territory in Australia has similar laws in some form regarding this provision. While people are free to make their wills any way they see fit, the Courts recognise that people also have a specific responsibility to provide for certain people, most often, family. Under this principle, any person can make a claim to the court that they deserve a share or an increased share of a deceased person’s estate.

In determining whether a person applying for family provision is eligible, the court will examine the relationship between the deceased and the person applying and the length of time they have known each other. The court will examine the assets of the person who is deceased and whether the estate is large enough to provide for the person applying. The finances of the person applying will also be examined to ensure that a person who has adequate funds and assets in their own right is not making an unfair claim for a part of a deceased’s estate. The court will also examine whether the claimant contributed in some form to the deceased’s estate and whether the amount contributed warrant a return of estate funds.

If a court is satisfied that the deceased person had an obligation to provide to the applicant, orders may be made to provide for them from the estate. In general, the court has taken a cautious approach to this area of the law to ensure that parties who receive a payout from a deceased’s estate are indeed deserving. There is no hard and fast rule as to how the court decides whether a person is entitled, with a large variety of relationships being recognised as deserving of payment from the deceased’s estate.

There has been criticism of this particular provision of family law on the basis that this particular part of the law encourages disingenuous and opportunistic claims against a deceased’s estate. In addition, there are often costly legal fees even if a claim is unsuccessful which usually paid out by the estate to defend the claim, once again disadvantaging genuine beneficiaries as they may receive less funds due to the litigation proceedings. Further, the fact that estates will often prefer to settle to avoid these costs means that there is a distinct lack of certainty as to the legitimacy of these claims but applicants are nonetheless encouraged to apply despite it being a weak claim.

While this provision ensures that those who need to be adequately provided for are given the opportunity to apply when necessary, there is also a fair amount of abuse of process, especially with claimants who are not genuine. It is always better to have a clearly set out will that details each beneficiary in detail. If your will is not current, you may not be adequately protected.

Feel free to call one of our expert lawyers to seek advice.

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