Challenging a Deceased Estate: Seeking Fair Provision

Losing a family member is a difficult and emotional experience. However, the situation can become even more distressing if you discover that you have been excluded from or inadequately provided for in their Will. 

Whether the deceased’s Will has not been updated for a long time and no longer reflects their wishes, or you have been intentionally left out, you may have the right to seek provision or further provision from the estate’s assets under the Administration and Probate Act 1958 (Vic) (“the Act“). 

Let’s explore the process of contesting a Will and who can make a claim in Victoria, Australia.

Eligible Persons: Who Can Make a Claim?

To make a claim for provision, you must be considered an “eligible person” as defined under section 90A of the Act. Eligible persons include:

  1. Spouse
  2. Child
  3. Stepchild
  4. Member of the deceased’s household
  5. Former spouse
  6. Other child (adult)
  7. Carer
  8. Grandchild
  9. Other (domestic partner of the deceased)
  10. Person who believed the deceased was their parent

Let’s explore some of these categories in more detail.

Spouse or Domestic Partner

If you were the spouse or domestic partner of the deceased at the time of their death, you are entitled to bring a claim. To determine if someone is a domestic partner, the Court will consider various factors, such as:

  • Degree of mutual commitment to a shared life
  • Duration of the relationship
  • Nature and extent of common residence
  • Existence of a sexual relationship
  • Degree of financial dependence or interdependence
  • Ownership, use, and acquisition of property
  • Care and support of children
  • Reputation and public aspects of the relationship

It’s important to note that none of these factors alone are determinative, and the Court will consider the overall circumstances. The burden of proof lies with the claimant to demonstrate the existence of a domestic relationship.

Child, Stepchild, and Person Believing the Deceased Was a Parent

If you are a child of the deceased, including an adopted child, you may be eligible to make a claim. This category covers children under 18 years of age, full-time students between 18 and 25 years old, or children with disabilities.

Stepchildren who were under 18 years old, full-time students between 18 and 25 years old, or stepchildren with disabilities at the time of the deceased’s death can also make a claim.

Additionally, a person who believed the deceased was their parent for a substantial period during the deceased’s life, was treated as their natural child, and was under 18 years old, a full-time student between 18 and 25 years old, or had a disability at the time of the deceased’s death can make a claim.

Former Spouse

If you are a former spouse or former domestic partner of the deceased and you would have been able to commence proceedings under the Family Law Act 1975 (Cth) but haven’t done so or the proceedings have not been finalised due to the deceased’s death, you may be eligible to make a claim.

Member of the Deceased’s Household and Others

Other eligible persons include members of the deceased’s household, which refers to someone who was, at the time of the deceased’s death or would have been likely in the near future, a member of the household of which the deceased was also a member.

Making an Order: Factors Considered by the Court

The Court will only make an order in favour of the plaintiff if it is satisfied that, at the time of death, the deceased had a moral duty to provide for the plaintiff’s proper maintenance and support, and the Will fails to make adequate provision.

In making its decision, the Court will consider various factors, including:

  1. The deceased’s Will and any evidence of their reasons for the dispositions in the Will.
  2. Any other evidence of the deceased’s intentions regarding provision for eligible persons.

Furthermore, the Court may consider:

  1. The family or other relationship between the deceased and the eligible person, including the nature and length of the relationship. 
  2. The obligations or responsibilities of the deceased to the eligible person and other eligible persons. 
  3. The size, nature, charges, and liabilities of the deceased’s estate. 
  4. The financial resources and needs of the eligible person, other eligible persons, and beneficiaries of the estate. 
  5. Any physical, mental, or intellectual disabilities of the eligible person or beneficiaries. 
  6. The age of the eligible person. 
  7. Any contribution (not for adequate consideration) made by the eligible person to the deceased’s estate or the welfare of the deceased’s family.
  8. Any benefits previously given by the deceased to the eligible person or beneficiaries. 
  9. Whether the eligible person was being maintained by the deceased before their death. 
  10. The liability of any other person to maintain the eligible person. 
  11. The character and conduct of the eligible person or any other person. 
  12. The effects of a family provision order on the amounts received by other beneficiaries. 
  13. Any other relevant matters as determined by the Court.

Determining Your Claim: Factors Influencing the Outcome

Several factors will influence the outcome of your claim, including the value and nature of the estate’s assets together with your financial need based on your current position. 

The Court will also consider the nature and extent of your relationship with the deceased. And any competing claims of other individuals who may have a legitimate claim on the estate.

Seek Professional Guidance

If you believe you may be eligible to make a family provision claim, it is crucial to seek professional advice from our experienced estate lawyers. They can assess your case, determine your entitlements, and guide you through the legal process.

Contact our firm to discuss your eligibility for a claim and to gain an understanding of your likely entitlements to the deceased’s estate. We are here to provide personalised assistance and help you navigate this complex area of law.