Posted on July 26, 2024
Family dynamics can be complicated and sometimes people can find themselves in a position where they have been excluded from a Will or have not been adequately provided for in a Will.
Alternatively, people can also find themselves in a position where the laws of intestacy exclude them from receiving an entitlement from a deceased’s estate.
The Administration and Probate Act 1958 (VIC) (‘the Act’) is the legislation that dictates family provision claims.
Who can apply?
You can only bring a family provision claim if you are an ‘eligible person’, being one of the following:
- Spouse or domestic partner at the date of death;
- Former spouse or former domestic partner;
- Child of the deceased;
- Stepchild;
- Grandchild;
- Sons and daughters-in-law or domestic partners of a child of the deceased; and
- Members of the deceased’s household.
In deciding whether a family provision claim will be successful, the Court will need to be satisfied of the following:
- The person making the claim was wholly or partly dependent on the deceased;
- The deceased had a moral duty to make provision for that person’s proper maintenance and support at the time of their death;
- The deceased’s estate does not make adequate provision for that person’s proper maintenance and support; and
- The amount of provision or further provision that should be made.
Veniou v Equity Trustees Limited [2018] VSC 832
The deceased passed away on 1 July 2017 leaving a Will. The value of the deceased’s estate was slightly over $2 million.
The deceased had three children and one of her daughters had predeceased the deceased. The daughter that predeceased the deceased had two daughters at the date of her death.
In her Will the deceased:
- Left $10,000 to her grandchildren of her surviving children only; and
- Distributed her estate between her two surviving children.
One of the deceased’s grandchildren (Ms V) who did not receive a benefit under the Will brought a claim seeking one third of the estate, representing her mother’s share.
Ms V resided in Greece and when their mother passed away the relationship between her and the deceased declined. By the time the deceased had passed away, it had been 22 years since Ms V had seen the deceased.
Under the Act, Ms V is an eligible person to bring a claim, however, she was unable to provide evidence that she was wholly or partly dependent on the deceased during her lifetime or at the time of the deceased’s death. Accordingly, her claim was dismissed.
If you are considering commencing a family provision claim or wish to have a preliminary discussion as to your rights and entitlements, please contact our team at Scanlan Carroll Lawyers on (03) 9853 0311.
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