31 Mar Changes to laws when contesting wills

In 1998, Victoria introduced the Testator’s Family Maintenance claim through Part IV of the Administration & Probate Act 1958 (Vic) (“the Act”). This allowed a person to seek either provision from a deceased Estate or an increase in their provision. The definition of ‘eligible person’ was wide-ranging allowing a diverse group to apply therefore increasing the potential of frivolous claims.  This is something to think about if you are contesting a will.

However, amendments to the legislation ( Part Iv of the Administration and Probate Act 1958 Vic)which came into effect on 1 January 2015 have restricted the ‘eligible person’ criteria and has also introduced specific factors which the court may take into consideration. These changes only apply to deaths occurring on or after 1 January 2015.

Who is an ‘Eligible Person’ to contest a will?

Under the amendments to the Legislation, only the following claimants are eligible to bring a claim under Part IV of the Act or contest a will that has left them out:

1. a spouse or domestic partner of the deceased at the time of the deceased’s death;
2. a child or stepchild of the deceased;
3. a child of the deceased (including an adopted or stepchild) who, at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 and 25 years or under a disability;
4. a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child;
5. a former spouse or domestic partner of the deceased (if a property settlement was not reached with the deceased following their separation);
6. a registered caring partner of the deceased;
7. a grandchild of the deceased;
8. a spouse or domestic partner of a child of the deceased (if the child dies within one year of the deceased’s death); and
9. a member of the household of which the deceased was (or had been in the past and would have likely been in the near future) also a member.

Factors taken into consideration by the court

Under the Act, it is now a requirement for the Court to consider a number of factors in determining if the Testator had a ‘responsibility’ and/or a ‘moral obligation’ to provide for the claimant. Further, what effect a Court Order would have on the remaining beneficiaries and the amount they would receive. Therefore the claimant has to now to establish that the deceased had a ‘moral duty’ to make adequate provision for proper maintenance and support.

In determining this, the Court is to take into consideration the terms of the Will and give weight to reasons why the deceased had made certain dispositions together with the deceased’s intentions to not provide for the claimant or why the claimant was bequeathed a certain percentage.  It is not simply a matter of just contesting the will because on the face of it you would think it is morally unfair.

Eligible persons who do not ‘fit’ the factors to be considered

A claimant could be considered an ‘eligible person’, however may not be suitable to apply under the additional factors to be considered. In certain circumstances, the court is to take into account the following:

1. The degree in which the claimant is unable to provide for their own proper maintenance and support; and

2. At the time of the deceased’s death, the degree in which the claimant was wholly or partly dependent for maintenance and support.
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