We are all free to make our Will as we wish and see fit – this is known as testamentary freedom, and is a longstanding legal principle that forms the basis of how Wills are prepared and interpreted.
However, Will Makers in Victoria have to make proper provision for persons they have an obligation to provide for. If a Will does not provide proper provision for that person, then they are entitled to request the Supreme Court of Victoria to make an order for greater provision.
These claims are often referred to as ‘Part IV Claims’, as the right to raise such a claim is contained in Part IV of the relevant legislation. They may also be referred to as ‘Testator Family Maintenance (or TFM) Claims’.
Who can make a claim for provision from an estate?
The category of people who can make a claim for provision from an estate are referred to as ‘eligible persons’. Part IV of the Administration and Probate Act 1958 (Vic) defines an eligible person. Examples of eligible persons include:
- The spouse or domestic partner of the deceased,
- A child of the deceased (including by adoption and step-children),
- A former spouse or domestic partner of the deceased (who has not finalised Family Law proceedings),
- A registered caring partner of the deceased,
- A grandchild of the deceased,
- A spouse or domestic partner of the deceased’s child, where that child passes away within a year of the deceased’s death, and
- A person who was a member of the deceased’s household.
Are there any other requirements?
As well as being an eligible person, there are additional criteria that must be met, including:
- The deceased must have had a moral duty to provide for you. This is determined in consideration of, for example:
- your relationship with the deceased,
- how you contributed to each other’s lives, and
- whether there was any dependency between yourself and the deceased.
- The distribution of the deceased’s estate (pursuant to the Will or the laws of intestacy) does not provide you with adequate maintenance and support. This is determined by consideration of:
- your personal and financial circumstances,
- your anticipated future needs,
- the status of your health,
- the size and assets of the estate, and
- whether you are able to provide for your own maintenance and support.
Generally, you have six months from the date of the Grant of Probate to commence your application with the Supreme Court. However, if you meet the criteria as set out above, but you have missed the time frame, you can ask the Court for permission to make your application.
How do I make a Part IV Claim?
If you think you meet the above criteria, the first step is usually to obtain information about the estate and place the executor on notice that you are considering commencing a Part IV Claim. Disputes are often able to be resolved without the involvement of the Supreme Court through early negotiations conducted by legal representatives, if all parties are agreeable.
If the issues are unable to be resolved, then the claim is then commenced with the Supreme Court. If the estate is valued under $750,000.00 then the matter is heard at Judicial Mediation. We recommend seeking legal advice and representation at all stages through this process to assist with your claim.
How can Sharrock Pitman Legal assist?
If you are considering contesting your provision from an estate through a Part IV Claim, or would like further information, please feel free to call our accredited specialist Wills and Estates team on 1300 205 506 and we would be happy to assist.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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