“I have a Will in place already, how could someone make a claim on my estate?”

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In Victoria, there are multiple avenues for making a claim on a deceased estate, even when the deceased died with a Will setting out where they wish for their assets to pass onto upon their death.

The types of claims someone may make against a deceased estate include family provision claims, challenging the validity of a Will, creditors claim, promises made by a testator and disputes against an executor of the estate.

Family Provision Claims

A family provision claim is made under Part IV of the Administration and Probate Act (Vic) and is the most common claim that allows eligible people to challenge a Will on the basis that they were unfairly left out or inadequately provided for.

Family provision claims can only be made if you fall under one of the categories for an ‘eligible person’ to make a claim. An eligible person includes a spouse or domestic partner (that includes former partners), a child of the deceased and other dependants. Other dependants of the deceased have extended in previous cases to include stepchildren, grandchildren and other members of the deceased household who relied financially on the deceased or were in a close personal relationship with the deceased.

In family provision claims, the Court is particularly concerned with whether the deceased had a ‘moral duty’ to provide for the person making the claim by way of financial support and maintenance. These claims are time sensitive and must usually be made within six months of the Grant of Probate.

In family provision claims, the Court considers the nature of the relationship the person making the claim had with the deceased, the current financial circumstances of the person making the claim, the conduct of the claim maker to the deceased and the total value of the estate.

Challenging the Validity of a Will

The validity of a Will may be challenged if the testator lacked testamentary capacity at the time of making the Will, there was undue influence against the deceased when making the Will or that the Will was improperly executed. 

If the claim maker is successful in proving that the Will is invalid, the estate defaults to the rules of intestacy or an earlier valid Will if the Deceased had one.

Creditor’s Claims

If the deceased owed money to third party creditors, a creditor can make a claim against the estate to recover the unpaid debt prior to the remainder of the estate being distributed to the beneficiaries.

Promises made by a Testator

Someone who made significant sacrifices based on a clear promise from the deceased may make a claim on the estate based on estoppel or constructive trust principals.

Promises made by a testator (the will maker/the deceased) can be used to make an equitable estoppel (either promissory or proprietary estoppel) claim against an estate that the deceased failed to keep their promise and that the deceased Will was contradictory to their previous actions. This protects those who have suffered a loss from the broken promise due to relying on the testators promise, for example, someone who spent their life working for the deceased on the basis that the deceased promised their estate to them. Proprietary estoppel concerns promise that relate to proprietary interests, such as a promise by the testator that the claim maker will be gifted the deceased property.

Executor Disputes

Another claim that differs to the others discussed above is applying to the Court to have an executor removed or ordered to perform certain duties. This claim is not particularly against the estate, but more the executor that administers the estate, impacting the estate as a whole. This claim would be an option if a beneficiary had concerns about an executor named in the Will acting improperly, mismanaging the estate or delaying the finalisation of the estate and distribution of the assets to the beneficiaries.

If you are concerned about a potential claim being made on your estate or alternatively, wish to discuss your options in relation to making a claim on an estate, please liaise with our team at Scanlan Carroll and we can thoroughly discuss your options.