Family Provision Claims

Unfortunately, the answer is yes — the distribution of an estate under a will can be challenged. They are known as a family provision claim, a testator's family maintenance claim, or informally, a “Part IV” claim, as they relate to Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”). 

These types of claims are becoming increasingly common, particularly as the value of inheritances continues to grow. 

It is important to understand however that not all challenges are successful. Each case is assessed on its own merits, and the Court carefully considers a range of factors before making any orders to alter the distribution of an estate.

The legal process allows certain eligible individuals to contest the distribution of an estate if they believe they have not been adequately provided for. Frequently, these claims are made even when a will is clear and includes the specific reasons of the will maker for how and why the distributions have been made. 

No, in order to make a claim, a claimant must firstly qualify as an “eligible person”. The Act sets out who may be considered an eligible person, and includes, among others: 

a) a person who was the spouse or domestic partner of the deceased at the time of the deceased's death; 

b) a child or stepchild of the deceased; 

c) a registered caring partner of the deceased; and

d) a grandchild of the deceased.

Before deciding to make an order for provision from an estate, the Court must be satisfied the deceased had a moral duty to provide for the eligible person's proper maintenance and support, and the distribution of the deceased's estate fails to do this. 

In some circumstances, the Court must also be satisfied that the eligible person was wholly or partly dependent on the deceased for their maintenance and support. 

In determining the amount of any order to be made, the Court must have regard to the deceased’s will, evidence of the deceased’s reasons for making the dispositions in the will, and any evidence of the deceased’s intentions in relation to providing for the claimant.  

Additionally, the Court may consider any matter it considers relevant, including but not limited to: 

a) the nature and length of the relationship between the deceased and the claimant;

b) any obligations the deceased had to the claimant, other eligible persons, or beneficiaries; 

c) the size and value of the estate; 

d) the financial needs and earning capacity of the claimant, other eligible persons, and beneficiaries; and

e) the age of the claimant.

The court however must not order more provision than is necessary for the claimant’s proper maintenance and support.