Acting as an Executor for a will can be a daunting task at the best of times, but in certain situations you may find yourself in the unfortunate position of having to defend the estate against a claim. Perhaps the most common claim that executors will have to defend is a claim for Family Provision. Family Provision claims exist across all of the jurisdictions in Australia, and allow the Courts to vary a will or the distribution of an estate in favour of certain eligible individuals.
Family Provision claims can arise in a number of situations, for example, they can arise both where the estate is ‘intestate’ (where no valid will exists) or ‘testate’ (where there is a valid will). Generally, a Family Provision claim will arise where an eligible person feels that he or she has not been given adequate provision under the distribution of the estate and that they ought to have been provided for by virtue of their relationship with the deceased.
Knowing the ins and outs of Family Provision claims grants you the ability to determine (ideally with the assistance of an Estate Professional) the likelihood of a claim succeeding, and by extension, whether the claim is worth defending against.
Who Can Make a Family Provision Claim (outside of Victoria)?
In all jurisdictions other than Victoria, eligibility is helpfully limited to only certain types of people. These include:
- former spouses;
- de-facto spouses;
- children, step-children and grandchildren;
- dependants; and
While not being on this list does not automatically disentitle a person from bringing a Family Provision claim, it does make it significantly harder for the applicant to satisfy a Court that a valid claim exists.
Similarly, if an applicant is eligible to bring a Family Provision claim under this list, this also does not automatically mean that they will be successful in their claim. There are a number of other considerations which must also be satisfied before a Court will vary a will or the distribution of an estate in their favour.
How is Eligibility Determined in Victoria?
Victoria’s approach to eligibility is far more comprehensive that other Australian jurisdictions. While in other Australian jurisdictions the Courts will approach a Family Provision claim on a step-by-step basis (i.e., eligibility must first be satisfied, then Courts will move on to determining other considerations), Victoria requires that all of the considerations be satisfied before a claim can proceed.
While technically the Victorian legislation governing these considerations allows Courts the ability to examine any consideration that they might think relevant, the most common considerations are as follows:
- whether the deceased had a responsibility to make provision for the applicant;
- whether the relationship between the applicant and the deceased was close enough to warrant provision for them out of the estate;
- whether the applicant has a real and demonstrable financial need for provision;
- the nature and length of the relationship between the applicant and the deceased; and
- the character and conduct of the applicant.
Based on these considerations, you can begin to get an idea for the potential success or failure of a Family Provision claim. For example, an estranged child who has had no real relationship with the deceased for quite some time, and who is financially stable and healthy may not have a particularly strong claim for Family Provision.
It is important to bear in mind that these considerations are by no means exhaustive, and that Family Provision claims can often be significantly more complex both in scope and in the Courts’ examinations of them.
As an Executor, your primary duty is to ensure that as much of the estate goes to its intended beneficiaries as possible – getting involved in protracted legal disputes with individuals who may have valid Family Provision claims runs against this duty as it will slowly but surely deplete the value of the Estate.
As always, if you are unsure about a Family Provision claim and the effect that it may have on the estate or your duties as an Executor, be sure to contact an Estate Lawyer. Your Estate Professional will be able to provide you with cost-effective advice that cools tensions amongst beneficiaries, assisting in resolving the Estate Dispute as to maintain as much of the estate’s value as possible.
Alternatively, if you have any queries, our Defending a Will FAQs are a great place to start.