The changes to Part IV of the Administration and Probate Act (1958) (Vic) (the Act) which came into effect from 1 March 2015 will affect those family members who are not mentioned in a will and seek to `challenge’ the will for provision or further provision from a deceased Estate in Victoria.  Only those eligible family members listed under the Act will be able to apply to the court for provision. This represents a significant change to the rules which had been in place under the Act since 1998. The Act now specifies categories for eligibility based on dependency.

Previously under the Act broadly provided that any person may apply to the court for provision out of the contested Estate if he or she could show that the deceased had responsibility to provide for their proper maintenance and support.  Thus there were no specific categories of persons eligible to apply for family provision as had been the case in other jurisdictions (other states).  This aspect of the Victorian Act had been subject to criticism some arguing that it led to frivolous and opportunistic claims being made resulting in estates being unfairly reduced in defending such claims.  The changes are in response to these criticisms and an attempt to ensure claims made are fair. The Act now lists categories of claimants able to lodge a family provision claim. Under the Act an eligible person means:

a)      a spouse or domestic partner of the deceased’s death;

b)      a child or stepchild of the deceased;

c)      a child of the deceased (including an adopted or stepchild)who at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 and 25 years or under a disability;

d)     a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child;

e)      a former spouse or domestic partner of the deceased (if a property settlement was not reached with the deceased following their separation);

f)       a child or stepchild of the deceased not referred to in c) or d)

g)      a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child

h)      a registered caring partner of the deceased;

i)        a grandchild of the deceased;

j)        a spouse or domestic partner of a child of the deceased (if the child dies within one year of the deceased’s death); and

k)       a member of the household of which the deceased was (or had been in the past and would have likely been in the near future) also a member.

Under the new provisions the particular eligible persons listed above must have been dependent on the deceased for the eligible person’s proper maintenance and support and the court must consider the degree of dependency and the amount of provision ordered by the court must be proportionate to the eligible person’s dependency on the deceased at the time of death.

James McConvill & Associates are experienced practitioners in the area of Wills and Estates if you require any legal advice or assistance or would like more information on the changes to family provision please contact James McConvill & Associates.