Have you been left out of a Will? Curious where you stand?
When it comes to death and Wills, we’ve all heard the ‘horror’ stories of claims made against the deceased’s estate by prodigal children and opportunistic ‘friends’, but what does it all mean, where do you stand and do you think you might have a claim?
The Administration and Probate Act 1958 (the Act) in simple terms places an obligation on the willmaker to make provision for their spouse (if any) and their children (if more than one in equal shares). Claims arise where the willmaker deviates from these guidelines. These ‘claims’ are commonly referred to as Testators Family Maintenance claims, TFM claims, Part IV claims or claims for “family provision”. Family provisions claims generally need to be made within six (6) months of the Grant of Probate or Letters of Administration being made and ideally before the estate has been distributed.
In an attempt to reduce the instance of frivolous claims, changes were made to the Act to now provide a specific list of persons eligible to make an application for family provision.
Eligible persons are defined in the Act as follows:
- The deceased’s spouse at time of death;
- The deceased’s domestic partner at time of death:
- registered pursuant to the Relationships Act 2008 (Vic); or
- Living with the deceased as a couple on a genuine domestic basis; or
- The parent of a minor child of the deceased.
- Child (including adopted child) of the deceased;
- Stepchild of the deceased;
- A person who believed they were a child of the deceased and treated by the deceased as such;
- A former spouse or former domestic partner (eligible to issue proceedings under the Family Law Act at time of death);
- A registered caring partner of the deceased (pursuant to the Relationships Act 2008 (Vic));
- A grandchild of the deceased;
- A spouse or domestic partner of a child of the deceased (ie son-in-law or daughter-in-law) if the child dies within 12 months of the deceased;
- A member of the household of the deceased.
For an Application to be successful, the Court must be satisfied that:
- the Applicant is an eligible person;
- the deceased had a moral duty to provide for the applicant’s proper maintenance and support; and
- the distribution of the deceased’s estate fails to make adequate provision for the maintenance and support of the applicant.
The Court will also consider the degree to which the applicant was wholly or partly dependent on the deceased for the applicant’s proper maintenance and support at the time of the deceased’s death. In addition, the amount of the order must be proportionate to the applicant’s degree of dependency at the time of the deceased’s death.
If you or someone you know needs assistance with administering a deceased estate, making a claim against an estate or would like to review their estate plan to reduce or avoid a potential family provision claim, speak to Kirsty Brealey from our Wills, Estates & Probate team.
