Left out of a Will? Claim what’s rightfully yours

Dealing with a death of a friend or family member is one of the most difficult challenges with which we are inevitably faced.

Dealing with a death of a friend or family member is one of the most difficult challenges with which we are inevitably faced. Often this difficult time can be compounded by disputes that arise about the management and distribution of the deceased person’s affairs, assets and liabilities. Whilst a person may have the foresight to delegate these matters to an executor to administer their estate in accordance with a Will, this is by no means a guarantee against any number of testamentary disputes that can, and do arise. One of the most common types of testamentary disputes we see at Dangerfield Exley Lawyers involves family provision claims.

Irrespective of what is prescribed in a Will, the Administration and Probate Act 1958 (Vic), specifically Part IV of the Act, enables persons not otherwise provided for, or adequately provided for, under the Will, to apply for (further) provision out of the estate. In effect, the Act enables the Court to make provision out of the deceased estate for the proper maintenance, financial support, education and advancement in life of a person for whom the deceased had responsibility to make provision.

Generally speaking, an applicant must be an ‘eligible person’ as defined in s90 of the Act, for bringing a Part IV application. Eligible persons for the purposes of the Act include:

  • Spouses or domestic partners of the deceased at the time of death;
  • Former spouses or former domestic partners;
  • Registered caring partners wherein one or both provided personal or financial commitment and support of a domestic nature not for fee or reward;
  • A child, stepchild, grandchild, or an ‘assumed child’ being a person who for some substantial period during the deceased’s life believed the deceased was a parent and was treated by the deceased as their natural child;
  • Spouses or domestic partners of a child, adopted child, stepchild or assumed child of the deceased if that child died within 1 year of the deceased’s death; and
  • A member of the household.

There are a number of factors that the Court may take into consideration in determining whether or not the deceased had responsibility to make provision for the applicant. These include:

  • Familial and/or other relationships between the deceased and applicant;
  • Obligations or responsibilities of the deceased to the applicant;
  • The size and nature of the estate having regard to the beneficiaries and any other applicants;
  • The applicant’s personal circumstances including their financial resources and needs, any physical, mental or intellectual disabilities, their age and any contribution they have made towards the estate or the welfare of the deceased;
  • The degree to which the deceased was already providing for the applicant;
  • Any moral claims by the applicant (often considered in the case of dependants); and
  • Any other matters considered relevant by the Court.

The above considerations are balanced against the deceased’s basic right to exercise freedom of testamentary disposition in respect of their estate, and the Court only has jurisdiction to order such provision as is “adequate” having regard to the above.

Importantly, s99 of the Act imposes a 6 month time restriction from the grant of probate for an applicant to file proceedings claiming relief pursuant to Part IV of the Act (although there is scope for the Court to extend this time if deemed appropriate).

Section 97 of the Act affords the Court wide discretion in respect of the costs of a Part IV application proceeding. A claim that is at least reasonably arguable is generally paid out of the deceased estate – even in circumstances where that Part IV application is not successful. This wide discretion on estate-paid costs has potential to deplete the estate and often serves as a powerful incentive for parties and beneficiaries to settle their disputes out of Court.

To find out more on your options with respect to Part IV family provision claims or testamentary disputes generally, please contact Angela Catanzariti, Senior Litigation Lawyer, for a full and frank discussion.

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