Wills and Estates: 18 March 2019
A family provision, or Part IV claim is an application made to a Court for an order that greater provision be made for the applicant out of the assets of a deceased's estate.Broadly, the applicant must show that:
The following eligibility requirements apply in Victoria:
If the deceased person died on or before 31 December 2014, any person to whom the deceased owed a moral obligation may make a family provision claim against the estate. There are no closed categories of claimants for deaths which occurred prior to this date. Eligible claimants may include any type of family relations, or even non-relatives, such as long term friends or carers.
If the deceased person died on or after 1 January 2015, then only the following people are eligible to make a claim:
Other eligible persons include the following, only if they were wholly or partly dependent on the deceased for their proper maintenance and support:
A family provision claim must be made within 6 months of the date of the Grant of Probate.
In some limited circumstances, an application may be made to extend the time, but only where the estate has not yet been fully distributed.
In deciding whether to make an order for further provision, the Court must balance the testator's freedom to leave property to whomever they please, with the moral duty owed by the testator to the claimant.
From 1 January 2015, the following considerations apply:
In making a family provision order, the Court must have regard to:
The Court may have regard to:
Aitken Partners will proceed to gather all necessary information, including a copy of the Will and a list of the deceased's assets and liabilities, and obtain detailed instructions on the factors listed above, before advising on the claim.
If the matter cannot be settled in early negotiations, the claim must be filed in Court within 6 months of the Grant of Probate. The parties will then prepare and exchange affidavits or position statements setting out the reasons the claim should or should not succeed, having regard to the relevant factors listed above. The matter will then be referred to a mediation, which is a meeting between the parties and their respective lawyers for the purpose of negotiating a settlement of the matter. Mediation is successful in resolving the majority of family provision claims.
An executor is usually entitled to have all of their legal costs in defending a family provision claim paid or reimbursed from the estate.
A successful claimant will usually be entitled to have most of their costs paid or reimbursed from the estate. An unsuccessful claimant whose claim is without merit will not usually have their costs paid from the estate, and may even have to pay the estate's costs of the litigation. It is essential to obtain proper specialist advice on the merits of your claim prior to commencing proceedings.
Aitken Partners will endeavour to resolve your dispute as efficiently and cost-effectively as possible.
In certain circumstances Aitken Partners may be able to act for a potential claimant on a No Success No Fee basis. Please enquire to see if you qualify for this arrangement.
Yes, it is also possible to contest the distribution of an estate under an intestacy, and the same considerations will apply as if the deceased had made a Will in the same terms as the intestacy provisions (ie. an assessment of moral duty and applicant's needs).
A family provision claim must be made in the State in which the deceased's assets are located, regardless of where the claimant resides. Aitken Partners is able to advise you on the correct jurisdiction, and commence claims in States other than Victoria if necessary.