What is a Family Provision Claim?

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]

1. the claimant is an eligible person;[2] and
2. the deceased had a moral duty to provide from that person’s maintenance and support;[3] and
3. the distribution of the deceased’s estate as set out in the Will, or pursuant to the rules of intestacy, fails to make adequate provision for their proper maintenance and support.[4]

What is Considered Adequate Provision?

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.

Contesting a Will: Who Can Make Family Provision Claims?

Up until the legislative reforms, which came into effect on the 1^st 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]

• The spouse or domestic partner at the time of death;
• A child of the deceased (including an adopted or step-child or someone who believed the deceased to be their parent and was treated as such) who, at the time of death, was:
  • Under the age of 18;
  • A full-time student under the age of 25;
  • Suffering from a disability
• A former spouse or former domestic partner of the deceased, if the person at the time of the deceased’s death would have been able to make proceedings under the Family Law Act 1975 of the Commonwealth; and has either
  • Not taken those proceedings; or
  • Commenced but not finalised those proceedings because of the death of the deceased
• A child or stepchild of the deceased not referred to above (ie adult children)
• A registered caring partner;
• A grandchild;
• The spouse or domestic partner of a child (ie son or daughter in law) of the deceased where that child has died within one year of the deceased’s death;
• A person who was or had been (and was likely to be in the near future) a member of the deceased’s household.

Is there a cut off?

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.

What Does the Court take into Consideration in Contesting a Will on the Basis of a Family Provision Claim?

In making a family provision order, the Court must have regard to:

• The deceased’s Will;
• Evidence of the deceased’s reasons for making the Will in the terms he/she did;
• Any other evidence about the deceased’s intentions with respect to the claimant

In determining the amount of provision to be made by a family provision order, the Court must have regard to:[7]

• The degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and
• The degree to which the distribution of the deceased’s estate fails to make adequate provision for the proper maintenance and support;

Do You Think You Have A Claim?

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