The short answer is yes.
In order to contest a Will in Victoria, you have to be considered an eligible person under s 91 of the Administration and Probate Act 1958 (Vic). Anybody who falls outside of the scope of this section; notably siblings, cousins and general carers do not have a right to contest, unless they can prove that at the deceased’s date of death, they were a member of the household of which the deceased was also a member.
For your records, the list of eligible people are as follows:
- Spouse or domestic partner (registered or unregistered) at the time of death;
- Child of the deceased (including 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; or
- Suffering from a disability
- Adult children
- A registered caring partner
- A grandchild
- A person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.
Further, being eligible is just the first step. It then has to be proven that;
- the deceased had a moral duty to provide for the claimant’s proper maintenance and support since the claimant was or had been wholly or partially dependent on the deceased person at a particular time; and
- that the distribution of the deceased’s estate as set out in the Will, or pursuant to the rules of intestacy, has failed to make adequate provision for the claimant’s proper maintenance and support.
This blog will concentrate on the requirements to prove ‘member of the household’.
So what is a member of the household?
Being a member of the household is more than simply living in the same place as the deceased, as depicted in the case of Russel v NSW Trustee and Guardian. A household is a group of people who are living cohesively together as a unit or in other words a ‘faux family’ and are involved both in the running’s of the household and in each other’s lives.
In Russell, the claimant failed in his bid for further position as a ‘member of the household’ living independently in the back shed with no involvement in the day-to-day life of the house or its members, as held by the Court, did not satisfy the eligibility requirements.
How long do I need to be a member for?
Unlike proving a de-facto relationship which requires a specific amount of time living under the same roof, there is no minimum time period in which a person must live as a member of a household in order to be eligible. However naturally, the shorter the stay, the weaker the case. To convince the courts of this relationship, there needs to be a sufficient degree of continuity and permanency.
What is dependency?
There is no single test for dependency, as it is a question of fact as it relates to each individual circumstance. The Court’s task is to determine whether the claimant came to rely on the assistance of the deceased in a financial, physical or emotional way. This dependence however has to be direct. For example, a child cannot claim dependency by arguing that their mother or father were dependent on the deceased and by virtue of the child’s close relationship with their parent, they were also indirectly dependent on the deceased.
Additionally, the dependence does not have to have occurred whilst the claimant was a member of the household, it only just has to be proven that at some particular point in the claimant’s life, they were wholly or partly dependent of the deceased. However, the two often coincide. Prime examples are the claimant living in the household rent free, not paying any utilities or relying on the deceased for groceries and meals.
What else do the Courts consider?
Being a proven ‘member of the household’, and dependent is not enough to satisfy the Courts that the claimant deserves further provision so to provide for their proper maintenance and support. Disturbing a Will is not something the Courts take lightly, and so before they make an order the Court has a duty to make regard to a number of further factors including:
- family relationship between deceased and the claimant;
- obligations/responsibilities the deceased had to the claimant in the past;
- any physical, mental or intellectual disability of the claimant or other beneficiaries;
- the character/conduct of the claimant
- the financial resources of the claimant, which includes earning capacity and needs in the foreseeable future
- age of the claimant
- any contribution made to the estate or welfare of the deceased by the claimant
- whether any other person is liable to support the claimant
- the nature and value of the estate
If you are a member of the household of a deceased person and wish to contest the Will, or simply just want some further information, do not hesitate to contact the team at Hentys Lawyers today.