If you are in the process of preparing your Will, it is important to consider who is able to make a claim against your estate when you die.

What does the law say?

Under Part IV of the Administration and Probate Act 1958 (Vic), there are people who are legally entitled to apply for a family provision claim. A family provision claim is an application to the Supreme Court of Victoria made by a party for a portion of the proceeds of your estate. In some circumstances, a party can make a family provision claim for a larger portion of your estate. Family provision claims are also known as Part IV claims.

Who is entitled to make a Part IV claim?

The following category of people may be considered ‘eligible’ to make a Part IV claim against a deceased’s estate:

  1. A spouse or domestic partner of the deceased at the time of the deceased’s death;
  2. A former spouse or domestic partner of the deceased (depending on the circumstances);
  3. A child of the deceased (including adopted children and step children);
  4. A registered caring partner of the deceased;
  5. A grandchild of the deceased.

This list is not exhaustive. It is ultimately at the discretion of the Court to determine whether a person is eligible to make a family provision claim against a deceased’s estate.  

What must the party prove?  

In order to make a successful claim against a deceased’s estate, the Court must be satisfied of the following factors:

  1. The person was eligible to make a claim (pursuant to the above list);
  2. The person was wholly or partly dependent on the deceased for their ‘proper maintenance and support’;
  3. At the time of death, the deceased had a moral duty to provide for the eligible person’s proper maintenance and support;
  4. The distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support of the eligible person.

What will the Court consider?

When assessing a Part IV claim, the Court is required to have regard to:

  1. The deceased’s Will;
  2. Any evidence of the deceased’s reasons for how they have distributed their estate;
  3. Any evidence of the deceased’s reasons for excluding certain people from their Will;
  4. The nature of the relationship between the deceased and the eligible person;
  5. The deceased’s obligations to the eligible person;
  6. The size of the estate, including any liabilities;
  7. The financial resources and earning capacity of the eligible person;  
  8. Any physical or mental disabilities of the eligible person;
  9. The age of the eligible person;
  10. Any contributions made by the eligible person to the deceased’s estate;
  11. Any benefits previously given by the deceased to the eligible person;
  12. Any other matter that the Court considers relevant.

Are there any time limits on Part IV claims?

In Victoria, an eligible person has 6 months from the date that probate was granted to make an application for a family provision claim.

However, the Court is able to make exceptions to this limitation period depending on the circumstances.

How can you prevent a claim on your estate?

Sadly, disputes within families are common and family relationships can often breakdown. If there is a particular person who you don’t want to provide for under your Will, we are able to prepare a document for you known as your ‘Expression of Wishes’. This document outlines your reasons for excluding this person from any entitlement under your estate. Therefore, your Expression of Wishes is a crucial means of safeguarding your interests when you are no longer able to do so.

It is important to note that your Expression of Wishes document will not be seen by anyone, unless there is a Part IV claim against your estate. In the event of a Part IV claim, your Expression of Wishes will be used by your executor as evidence of your final wishes at the time of making your Will. Otherwise, this document will be kept separate to your Will, but will be stored alongside it in your Deeds packet.