When a loved one passes away, it’s a time of emotional turmoil. Discovering that you’ve been left out of a Will or inadequately provided for can add to the distress. At Hentys Lawyers, we specialise in helping clients make successful family provision claims, ensuring that they receive a fair share of the deceased’s estate. With our extensive experience and expertise, our legal team is here to guide you through the process 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 distribution of the estate to address this.

A Family Provision Claim in VIC is an application to the Court to seek adequate provision from the Estate of a deceased person.

These types of claims are commonly referred to as Part IV claims, Testator Family Maintenance (TFM) claims or ‘contesting a Will‘. These orders may be made in either the Supreme or Country Courts, where the Court is satisfied that:

  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?

Victorian legislation provides the application for a family provision order may only be made by or on behalf of an eligible person, which is defined as:

  • The spouse or domestic partner 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’s death would have been able to make proceedings under the Family Law Act 1975 of the Commonwealth and has either
    • 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.

It’s important to note that eligibility does not guarantee a successful claim. The court will consider various factors, 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] 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.

Is there a cut off?

You have strictly 6 months from the date that a grant of Probate is made to contest a Will. 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.

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 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

In determining the amount of provision to be made by a family provision order, the Court must have regard to:[7]

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

[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 has to be made six months from the grant of probate or letters of administration unless 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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