09 May New laws on deceased estates since 2015

The following is an extract from a Law Institute of Victoria article about the changes as they were coming into effect:

28 Jan 2015

New laws limiting the ability to make a claim on a will came into effect this month, prompting a call from the Law Institute of Victoria for people to ensure their wills are up to date and valid.

LIV President Katie Miller said the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 applies to the estate of any person who dies on or after January 1 2015.

“The Act limits the categories of people who are eligible to challenge a will.

“The LIV worked closely with the then Government and Opposition to improve succession laws to give more certainty to grieving families, while ensuring that adult children will always be eligible to challenge a will,” Ms Miller said.

Eligible claimants under the new Act include:
A spouse or domestic partner of the deceased at the time of the deceased’s death
A child or step child of the deceased
Others can only make a claim in certain circumstances. They include registered caring partners, grandchildren and members of the deceased’s household.

For most claims, a court will be required to specifically consider the degree to which the person is not capable of providing for themselves, as well as the effect of a court order on the amounts received by other beneficiaries.

“The new Act was designed to limit who can make a claim on an estate and ensure families are not caught up in unnecessary disputes,” Ms Miller said.

The LIV and the Victorian Law Reform Commission had supported reform of the previous legislation that had been criticized since its inception in 1998 on the fact that there was no fixed category of people eligible to make a claim, increasing the potential for frivolous claims to be brought to court. While the latest amendments are a vast improvement, the legislation is a compromise from the recommendations of both the VLRC and the LIV that Victorian succession laws move towards national uniformity by adopting the NSW model.

Ms Miller said people often had complex family relationships, and their intentions with their wills could change over time.

She recommended people seek legal advice before making their wills.
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