What is a Part IV Claim?

Introduction

A Will is not always set in stone. If a person believes they have not received adequate provision, they may claim a greater share of the estate. This is known as a ‘Part IV’ claim. The relevant law is Part IV of the Administration and Probate Act (Vic)1958.

Part IV claims are the most common type of Will disputes. They are also known as ‘family provision’ claims or ‘testator family maintenance’ (TFM) claims.

Who can make a Part IV Claim?

Contrary to popular belief, not everyone can make a Part IV claim.

 The law sets out strict categories of ‘eligible persons’. They include:

• The spouse or de facto partner of the deceased; or
• A child or step-child of the deceased;

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The following persons are also eligible:

• A grandchild of the deceased;
• A registered caring partner of the deceased; or
• A member of the deceased’s household.

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Claims by these persons are less common, as the person must demonstrate that they were financially dependent on the deceased. A former spouse or de facto partner is also eligible, if they had not yet reached a family law settlement with the deceased.  

What does the Court consider?

A Part IV claim will not always be successful. The law sets out certain factors for the Court to consider when deciding whether a claimant should receive further provision. These include:

• Whether the deceased had a moral duty to provide for the claimant;
• The deceased’s reasons for providing less to the claimant;
• The relationship between the deceased and the claimant;
• The character and conduct of the claimant;
• The claimant’s personal and financial circumstances;  
• Whether the claimant was financially supported by the deceased;
• Whether the claimant had contributed to the deceased’s estate;
• The size and assets of the estate; and
• The personal and financial circumstances of the other beneficiaries.

What is the process?

A Part IV claim can be resolved through negotiation, without going to Court.

If negotiations are unsuccessful, then a Part IV claim is commenced in either the County Court or the Supreme Court.

The law states that a claim must be commenced within six (6) months from the date of the Grant of Probate. However, the Court can grant an extension of time to the claimant, in certain circumstances.

The Court requires the parties to participate in mediation. The majority of mediations are successful, where the parties will agree on the amount for the claimant.

If mediation is unsuccessful, then a trial will proceed before a Judge. After hearing the evidence of all parties, the Judge will decide whether the claimant is entitled to a greater share of the estate.

How can Sharrock Pitman Legal assist?

When an individual’s expectations in a Will are not met, this can lead to conflict with the Executors and other family members.

If you would like further information on Part IV claims, please contact our specialist Wills and Estates team on 1300 205 506.

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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