A family provision claim, also known as a Part IV claim, is an application by an eligible person for a share, or a larger share, of a deceased person’s estate. This type of claim is generally made by family members, a spouse or partner, or other wholly or partly dependent persons. A family provision claim seeks fair provision under a Will or, if no Will exists, under intestacy laws. This process is sometimes referred to as contesting a Will, as it is one of the main reasons that Wills are disputed.
In Victoria, claims are governed by the Administration and Probate Act 1958 (Vic). This legislation ensures that a person who had a moral duty to provide for another during their lifetime cannot exclude them without good reason.
Tip: If you believe you have been unfairly left out of a Will, you should seek advice promptly, as strict time limits apply.
Understanding Family Provision Claims In Victoria
Making a family provision claim is not simply about dissatisfaction with a Will. It is a structured legal process designed to ensure that dependents and close family members are not left without proper support after someone close to them passes away.
The Court looks beyond the wording of the Will to examine the claimant’s circumstances, the deceased’s obligations, and the fairness of the estate’s distribution. By doing so, Victorian law aims to balance the freedom of a person to distribute their estate as they wish with the need to provide for those who relied on them in life.
Family provision claims can arise in two situations:
- Where a valid Will exists but does not provide adequate support
- Where no Will exists, and the estate is distributed under intestacy laws.
In both cases, eligible persons may apply for a fair share of the estate.
Making A Claim When A Will Exists
If a valid Will exists, a family provision claim can be made when the Will does not provide adequate support for an eligible person. The Court considers the claimant’s financial needs, the relationship with the deceased, contributions made during their lifetime and the size of the estate. Even if the Will is legally valid, the Court can adjust the distribution to ensure fair provision.
Making a Claim Without A Will In Place
If the deceased did not leave a Will, the estate is distributed under Victoria’s intestacy laws. Eligible persons, such as spouses, domestic partners, children or dependants, can make a claim for provision. The Court still applies the same principles of fairness, looking at the claimant’s needs and the moral obligations of the deceased, but there is no existing Will to follow.
Who Can Make A Family Provision Claim?
Not everyone can make a family provision claim, and the courts carefully define who is eligible based on their relationship to the deceased.
In Victoria, the following people are deemed eligible to make a family provision claim:
- Spouses and de facto partners are always eligible
- Biological and adopted children are also eligible
- In some cases, stepchildren, former spouses, grandchildren or dependents in a close personal relationship with the deceased may qualify.
When considering eligibility, the Court considers the nature of the relationship, whether a dynamic of financial dependence was present, and, in some cases, the applicant’s age and circumstances.
Tip: If you were financially dependent on the deceased, even partly, you may still be eligible to bring a claim.
How Are Family Provision Claims Considered?
When someone makes a family provision claim in Victoria, the Supreme Court carefully considers whether the deceased made adequate provision for the claimant’s proper maintenance and support. To decide this, the Court looks at various factors, including:
The size of the estate
A larger estate may give the Court more flexibility to make a provision, while a smaller estate means the Court must balance the competing needs of all beneficiaries more carefully.
The claimant’s financial situation
The Court examines the claimant’s current and future financial needs, such as income, debts, health expenses and housing requirements. A claimant who is struggling financially may have a stronger case than one who is already well provided for.
The relationship with the deceased
The closeness and quality of the relationship often play a key role. For example, a spouse or dependent child is usually seen as having a stronger claim than a distant relative. Estrangement or conflict may also be taken into account, though it does not automatically rule out a claim.
Moral duty and obligation
The law considers whether the deceased had a moral obligation to provide for the claimant. This is not just about legal responsibility but about what a fair and reasonable person in the deceased’s position would have done.
Other beneficiaries
The interests and needs of other beneficiaries must also be weighed. The Court aims to balance fairness to the claimant with fairness to others who were provided for in the Will.
By considering all these factors, the Court decides whether further provision should be made, and if so, what form it should take. Each case is unique, and the outcome depends on the individual circumstances.
What Is Considered ‘Adequate Provision’ & Support
What counts as adequate provision depends on the claimant’s general and financial circumstances. For instance, a partner or child of the deceased who was financially dependent on the deceased would likely have a stronger case to make a claim than a relative or partner who is financially stable and was not financially dependent on the deceased person.
The Court may look at:
- Age, health, and earning capacity
- Future financial needs and lifestyle
- Contributions made to the deceased’s estate or welfare
The decision is not about equal distribution but about ensuring fairness and meeting real needs.
Tip: Adequate provision is assessed individually – what is fair for one claimant may not be fair for another.
The Family Provision Application Process
In Victoria, family provision applications are made in the Supreme Court.
Steps generally include:
- Executor applies for probate or administrator applies for letters of administration:
The executor or administrator applies to the Supreme Court to gain legal authority to manage the estate, pay debts, and distribute assets. - Probate or administration granted, which starts the six-month limitation period:
Once probate or letters of administration are granted, the six-month window to lodge a family provision claim in Victoria begins. Acting quickly is important to avoid missing this deadline. - Potential claimant gives notice of claim to executor (optional but wise)
Notifying the executor that a claim may be made is not required, but it helps prevent the estate from being distributed prematurely and protects the claimant’s interests. - Filing a summons and affidavit: The applicant must file a summons with the Supreme Court and a supporting affidavit that sets out their relationship with the deceased, their financial circumstances, and reasons for the claim. Evidence such as medical records or financial documents is usually included.
- Paying the filing fee: A court filing fee is required, although fee reductions or exemptions may be available in cases of financial hardship.
- Mediation: The Court almost always orders mediation before a matter proceeds further. Mediation allows parties to negotiate an outcome confidentially, with the assistance of a mediator. Most cases settle at this stage.
- Court hearing: If mediation does not resolve the matter, the case proceeds to a trial before a judge. The Court then decides whether further provision should be made and, if so, how much.
Most cases settle at mediation, which can save time, money and stress for everyone involved.
Making A Family Provision Order
If a family provision claim proceeds to Court, the judge examines whether the claimant has been left without adequate provision for their proper maintenance and support. The Court considers all relevant factors, including the claimant’s financial needs, their relationship with the deceased, contributions made during the deceased’s lifetime, the size of the estate and the interests of other beneficiaries.
If the judge finds the claimant should receive further provision, the Court can vary the distribution of the estate. This may involve adjusting the amounts provided under the Will or, if there is no Will, reallocating the estate under intestacy rules.
The Court’s decision is legally binding unless successfully appealed. It aims to balance fairness to the claimant with the rights of other beneficiaries, ensuring the estate is distributed in a way that reflects both legal and moral obligations.
Appealing A Family Provision Order
If a party is unhappy with a family provision order in Victoria, they may appeal to a higher court. Appeals must generally be lodged within strict time limits and are usually based on an error of law, misapplication of evidence, or the Court exercising its discretion incorrectly. Legal advice is essential to assess the prospects and prepare the appeal effectively.
How Long Does It Take To Finalise A Family Provision Claim?
The timeframe for resolving a family provision claim in Victoria can vary widely depending on the complexity of the case, the number of parties involved, and whether the matter is settled at mediation or proceeds to a full court hearing.
- Mediation stage: Many claims are resolved through mediation, which can take several weeks to a few months. Settling at this stage usually reduces costs and stress.
- Court hearing: If mediation is unsuccessful, a trial may be required. Preparing for a hearing, including filing documents, gathering evidence and listing the matter, can take six months to a year or more.
- Complex cases: Claims involving large estates, multiple beneficiaries or disputed evidence may take longer to finalise, sometimes 18 months or more.
Tip: A claim must be filed within six months of the grant of probate or letters of administration. Acting promptly is essential, as late claims are more difficult and may require court permission.
What Happens If Time Limits Are Missed?
In Victoria, a family provision claim must be filed within six months of the grant of probate or letters of administration. Missing this deadline can have serious consequences, and a claim may be dismissed. The Court can refuse to hear a claim lodged after the time limit unless there is a compelling reason for the delay.
Court discretion for late claims
In exceptional circumstances, the Supreme Court may allow a late claim. Valid reasons could include:
- The claimant was unaware of the deceased’s death
- Probate was granted without the claimant’s knowledge
- Other extraordinary circumstances prevented the claim from being made on time
Increased difficulty and costs
Even if the Court allows a late claim, it is often more difficult to gather evidence, negotiate with beneficiaries and persuade the Court to grant a provision. Delays can also result in higher legal costs, as extended proceedings or additional applications may be required, which is why acting promptly is essential. Seeking legal advice early can help ensure your claim is lodged on time and can reduce the likelihood of complications and additional costs.
What Happens If Estate Distribution Is Underway When A Family Provision Claim Is Made?
Once an executor receives notice (or becomes aware) that a potential claimant may make a family provision claim, they must be careful about distributing assets. If they distribute the estate as if no claim exists, they could become personally liable if the Court later orders provision for the claimant.
Executors often take practical steps to delay or “hold back” distributions until the claim is resolved. This can include keeping funds in the estate bank account or postponing transfers to beneficiaries. If assets have already been distributed, the Court has the authority to make orders to recover or adjust distributions so the claimant receives fair provision. This can include ordering beneficiaries to repay amounts or reallocating estate assets.
If you believe you have a claim and the estate is being distributed, it is crucial to notify the executor immediately. Acting quickly can protect your claim and prevent assets from being permanently distributed before the Court has a chance to consider your case.
Next Steps If You Think You Have A Claim
Family provision claims can be complex and often arise at a difficult time. If you believe you may be entitled to make a claim, taking the right steps early is crucial:
- Seek legal advice promptly: A Law Firm experienced in family provision claims can explain your eligibility, the time limits and the best approach for your situation.
- Gather relevant evidence: Collect documents that show your financial needs, your relationship with the deceased and any contributions you made during their lifetime.
- Prepare for mediation: Mediation is a practical and often less stressful way to resolve disputes before a court hearing.
Acting quickly and with expert guidance helps protect your rights and increases the likelihood of a fair outcome.
Take Action To Protect Your Family Provision Rights
Family provision claims often arise in difficult and emotional circumstances, particularly when family relationships are strained, but acting promptly is essential to protect your rights and secure fair provision under Victorian law.
Our experienced and compassionate Probate & Estate Lawyers can explain your eligibility, guide you through the process, and help you gather the evidence needed to support your claim. Early advice also ensures you meet strict time limits and avoid complications.
Don’t wait until it’s too late – speak to Pearsons Lawyers today on 1300 699 688 or via our contact form. Our Victorian estate law specialists offer a free chat to discuss family provision claims, so you can understand your options and know where you stand.
