Contesting A Will
Family Provision Claims: The Starting Point
When an individual makes their Will, they have liberty to gift their assets to the beneficiaries of their choice at the time they pass away. Despite this, the Will can be contested by way of a Family Provision Claim.
Under section 90A of the Administration and Probate Act 1958 (Vic), an “eligible person” in Victoria can file a Family Provision application with the Supreme Court of Victoria.
Who is an eligible person?
You are eligible to file a Family Provision application if you are related to the deceased in one of the following ways:
- Spouse or domestic partner;
- Child, including an adopted child or step child;
- A person who, for a substantial period during the deceased’s life, believed that the deceased was their parent and was treated as a natural child of the deceased;
- A former spouse or domestic partner at the time of the deceased’s death provided that family law proceedings had not commenced, or such proceedings cannot be finalised because of the deceased’s death;
- A registered caring partner;
- A grandchild;
- a spouse or domestic partner of a child (including step child) of the deceased if the child of the deceased passes away within one year of the deceased’s death; and
- a person who, at the time of the deceased’s death, is or had been in the past and would have been likely in the near future to again become a member of the deceased’s household.
Considerations for a Family Provision Claim
In order for the Court to grant a family provision order, the Court must be satisfied by all of the following factors:
- That the person making the application is an eligible person;
- That the deceased had a moral duty to support the person; and
- That the distribution of the estate as outlined in the deceased’s Will does not sufficiently provide for the proper maintenance and support of the person.
When making a family provision claim, the Court must consider the following:
- The deceased’s Will;
- The deceased’s reasons for making the gifts in their Will; and
- The deceased’s intentions in relation to providing for the eligible person.
Other factors that the Court may consider, include but are not limited to, the following:
- The relationship between the deceased and eligible person, including the nature and length of relationship;
- Any obligations on the deceased to provide for the eligible person, any other eligible person and the beneficiaries of the estate;
- The value of the estate, including the estate’s liabilities;
- Any physical, mental or intellectual disability of any eligible person or beneficiary of the estate;
- The eligible person’s age, financial circumstances and needs;
- Any contribution that the eligible person has made to the building up of the estate, or the welfare of the deceased or the deceased’s family;
- Any benefits previously provided by the deceased to any eligible person or beneficiary;
- Whether the eligible person was maintained by the decreased prior to the deceased’s death;
- Whether any other person is required to maintain the eligible person;
- The character and conduct of the eligible person; and
- The impact of a family provision order on the amounts received by other beneficiaries of the estate.
Time Limitation
There are time limitations involved. An eligible person has six months from the date of the grant of probate of the Will or the grant of letters of administration to file a Family Provision application.
It is possible for the Court to extend the period that an eligible person has to make a Family Provision claim, however the Court will only do so if appropriate in the circumstances.
Contact us
If you are considering filing a Family Provision application, you are a beneficiary of the estate and an eligible person has filed a Family Provision application, or you are an executor who has been served with a Family Provision application, contact Pearsons Lawyers on 1300 699 688 to speak to one of our solicitors who can assist you with understanding your prospects of success and entitlements, as well as the pathway forward. At Pearsons we will let you “know where you stand.”
