When a loved one passes away, it is already a time of emotional turmoil. Discovering that you have been left out of a Will or inadequately provided for can add to that distress. A family provision claim is a legal process in Victoria that allows an eligible family member or dependant to ask the court to change the distribution of a deceased person’s estate so proper maintenance and support can be provided.

At Hentys Lawyers, we help people in Victoria who have been excluded from a Will or believe they have not received adequate provision understand whether they can bring a claim and what to do next. This guide explains who can make a family provision claim, what adequate provision means, the time limits that apply, the factors the court considers, and how our team can assist you in seeking a fair share of the estate with confidence and compassion.

What is a Family Provision Claim?

A family provision claim is a legal avenue available to certain family members and dependents who believe they have not been adequately provided for in a deceased person’s Will. The law recognises that some individuals may have a reasonable expectation of receiving financial support or assets from the estate, and a family provision claim allows the court to adjust the estate’s distribution to address this.

A Family Provision Claim in VIC is an application to the Court seeking further provision from the deceased person’s estate, and the court can alter the distribution even where there is a valid Will.

These types of claims are commonly referred to as Part IV claims, Testator Family Maintenance (TFM) claims or ‘contesting a Will‘. Under Victorian law and the relevant legislation, these orders may be made in the Supreme Court or County Court, where the court considers whether:

  1. The claimant is an eligible person, and
  2. The deceased had a moral duty to provide from that person’s maintenance and support; and
  3. 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.

Who Can Make a Family Provision Claim?

A family provision application in Victoria may only be made by or on behalf of an eligible person, and eligibility criteria vary by state and territory in Australia, so this article addresses Victorian law. Under Victorian legislation, an eligible person is defined as:

  • The deceased person’s spouse at the time of death;
  • A de facto partner in a de facto relationship or other recognised domestic relationship at the time of death;
  • A child of the deceased (including an adopted or stepchild 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;
  • Suffering from a disability
  • A former spouse or former domestic partner of the deceased, if the person at the time of the deceased person’s death would have been able to make proceedings under the Family Law Act 1975 of the Commonwealth and has either, while in New South Wales a former wife may be listed expressly under the Succession Act as a brief point of comparison:
  • Not taken those proceedings; or
  • Commenced but not finalised those proceedings because of the death of the deceased
  • A child or stepchild of the deceased not referred to above (i.e. adult children)
  • A registered caring partner;
  • A grandchild;
  • 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.

Eligible persons usually include spouses, children, dependents, and in certain circumstances someone dependent on the deceased, partly dependent, or in a close personal relationship at the particular time of the deceased person’s death.

It’s important to note that eligibility does not guarantee a successful claim. The person making the claim must still show financial need or a genuine need for support, if any, and the court will consider key considerations and the following factors when assessing eligibility, including the nature of the relationship with the deceased, the size of the estate, and the claimant’s financial needs.

What is Considered Adequate Provision?

In Pontifical Society for the Propagation of the Faith v Scales[[5]](LINK 1) Dixon CJ noted the relative nature of the words. Thus, there is no set criteria for what is considered adequate and what is not.

‘Adequate’ and ‘proper ‘, in particular, must be considered words that must always be relative. The ‘proper’ maintenance and support of a [person] claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to [their] needs but also [their] own capacity and resources for meeting them.

Accordingly, an applicant must show they have not received adequate provision from the deceased person’s estate, and the claim must clearly demonstrate that adequate provision was not made for their proper maintenance and support.

Is there a cut off?

You have strictly 6 months from the date that a grant of Probate is made to contest a Will. Across Australia, claims must meet strict state and territory time limits, which generally range from 6 to 12 months after death or from a probate-related date, and in some jurisdictions a family provision claim must be filed within 12 months of death. The law can be harsh in the sense that often ‘out of time’ is synonymous with being ‘out of luck’ – although in rare and exceptional circumstances, an extension of time will be granted. It’s important to note that failing to make a claim within this period may result in losing the opportunity to contest the Will. You should seek legal advice promptly to confirm the deadline that applies to your circumstances.

What does the court consider in contesting a Will on the basis of a Family Provision Claim?

In making a family provision order, the Court considers key considerations under the relevant legislation when deciding whether to order further provision:

  • 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 claimant’s financial need;
  • The relationship with the deceased;
  • The size of the estate;
  • The position of other beneficiaries;
  • Any contributions made by the applicant to the estate.

In determining the amount of provision to be made by a family provision order, the court decides the amount after considering the following factors in the specific circumstances of the case:[[7]](LINK 2)

  • The degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person;
  • The degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support;
  • The deceased’s moral obligation to provide support remains a significant consideration.

Common Situations Where Family Provision Claims Arise

Family provision claims commonly arise where:

  • An adult child has been excluded from a Will
  • A spouse receives substantially less than expected
  • A de facto partner is not recognised
  • A stepchild has received little or nothing
  • A grandchild who relied upon the deceased has been left without support
  • Significant assets have been gifted to one child only
  • A Will has not been updated following separation or remarriage
  • Family businesses or farms have been left unequally between siblings
  • A carer has not been adequately provided for

No two estates are identical, making early legal advice particularly valuable.

[1] Administration and Probate Act 1958 (Vic) s 91

[2] Ibid s 91 (2)(b)

[3] Ibid s 91 (2)(c)

[4] Ibid s 91 (2)(d)

[5] [1962] HCA 19

[6] Ibid s 90

[7] Administration and Probate Act**1958 (Vic) s 91(4)

[8] Ibid s 99

Contact Hentys Lawyers Today

Yes? Give the team at Hentys Lawyers a call, and we will help you determine whether you are an eligible person. We will assist you with making an application within imposed time limits. An application must be made within 6 months of the grant of probate or letters of administration, unless the time is extended.[8] We will also help determine whether the basic conditions have been met. This is whether the deceased had a moral duty to make you provision at the time of death and whether the Will or intestacy provision failed to make adequate provision for proper maintenance and support. From here we can launch proceedings.

Never hesitate to make that initial inquiry…and with our free advice promise, you have nothing to lose. Contact Hentys today!

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