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We assess your situation so you know the best approach to take.
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We assess your situation so you know the best approach to take.
A Family Provision Claim in VIC, NSW and QLD is an application to the Court to seek adequate provision from the Estate of a deceased person.
These types of claims are commonly referred to as Part IV claims, Testator Family Maintenance (TFM) claims or Contesting a Will.
So, if you think the deceased has not adequately provided for you, these are the proceedings you would launch.
Such an order may be made in either the Supreme or Country Courts, where the Court is satisfied that:[1]
In Pontifical Society for the Propagation of the Faith v Scales[5] Dixon CJ noted the relative nature of the words. Thus there is no set criteria for what is considered adequate and what is not.
‘Adequate’ and ‘proper ’in particular must be considered as words which must always be relative. The ‘proper’ maintenance and support of a [person] claiming a statutory provision must be relative to his age, sex, condition and mode of life and situation generally. What is ‘adequate’ must be relative not only to [their] needs but also [their] own capacity and resources for meeting them.
Up until the legislative reforms, which came into effect on the 1st of January 2015, Victoria was one of the most flexible States in Australia for people making a claim against a Will. The eligible people were not specified, so anyone who believed that the deceased person had an obligation to provide them with some maintenance could make a claim.
At current, the new legislation provides the application for a family provision order may only be made by, or on behalf of an eligible person as defined as:[6]
You have strictly 6 months from the date that a grant of Probate is made to contest a Will. The law can be harsh in the sense that often ‘out of time’ is synonymous with being ‘out of luck’ – although in some exceptional circumstances an extension of time will be granted.
In making a family provision order, the Court must have regard to:
In determining the amount of provision to be made by a family provision order, the Court must have regard to:[7]
Yes? Give the team at Hentys Lawyers a call and we will help you determine whether you are an eligible person. We will ensure that the application will be made within imposed time limits. An application has to be made six months from grant of probate or letters of administration, unless time is extended.[8] We will also help determine whether the basic conditions have been met. This being whether the deceased actually had a moral duty to make you provision at the time of death and whether the Will or intestacy provision failed to make adequate provision for proper maintenance and support. From here we can launch proceedings.
Never hesitate to make that initial inquiry, and with our free initial advice promise you have nothing to lose.
[1] Administration and Probate Act 1958 (Vic) s 91
[2] Ibid s 91 (2)(b)
[3] Ibid s 91 (2)(c)
[4] Ibid s 91 (2)(d)
[5] [1962] HCA 19
[6] Ibid s 90
[7] Administration and Probate Act 1958 (Vic) s 91(4)
[8] Ibid s 99
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