Posted on June 11, 2026
Bianca Maazzarino
In Victoria, family provision claims are made under Part IV of the Administration and Probate Act 1958 where an application is made by a person seeking a greater share, or any share, of a deceased person’s estate where they believe the Will failed to make an adequate provision for them.
A person eligible to make such a claim might include a former or current spouse of the deceased, a former or current domestic partner, a child or stepchild, a person who resided in the deceased’s household, a person who cared for the deceased or a person financially dependant on the deceased.
However, eligibility alone is not enough. The claimant must establish that at the time of the deceased’s death, the deceased had a moral obligation to make an adequate provision in their will for the claimant’s proper maintenance and support.
In determining whether further provision ought to be made, the Court will consider a range of factors, including:
- the claimant’s financial circumstances;
- the nature of the relationship between the claimant and the deceased;
- any competing claims by other beneficiaries; and
- importantly, the reasons why the claimant was excluded from the will.
The last point was recently considered in the matter of D’Apice v Passas [2026]NSWSC 146, where the deceased deliberately excluded his daughter from his will on the basis that she had already received substantial financial benefits during his lifetime, including interests in businesses and real estate.
The deceased further reinforced his intentions by signing a separate declaration explaining his reasons for the exclusion of his daughter, and that he had obtained independent legal advice in relation to his estate planning.
The daughter of the deceased challenged the validity of the will and sought further provision from the estate under family provision legislation. However, the Court dismissed her claims, finding that the deceased’s intentions were clear, deliberate and properly documented with independent legal advice.
The Court’s decision highlights that receiving financial benefits or gifts from a deceased during their lifetime and carefully documented testamentary intentions can significantly impact the success of a family provision claim and ensure that a deceased’s intentions are rightfully upheld against subsequent claims.
If you seek advice regarding your estate planning and ensuring that your testamentary wishes are clearly documented and assets are protected, please reach out to the Wills and Estates team at Scanlan Carroll for tailored legal advice.
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