If a person has made a will (Testator), then the Courts recognise the principle of ‘freedom of testation’, which means a Testator can leave their estate to whomever they want and in any way they see fit.

A Testator’s will can be challenged by bringing a claim pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (Family Provision Claim).

A Family Provision Claim is where a person claims that they have been left without adequate provision in a will, and that the Testator had a ‘moral obligation’ to provide for them in their will.

However, the Courts will only intervene with a Testator’s stated wishes in a Family Provision Claim if a very specific set of criteria is met by the person bringing the claim (Plaintiff).

In order to succeed with a Family Provision Claim, the Courts will consider the following:

1. ELIGIBILITY

A Family Provision Claim can only be commenced by an ‘eligible person’. If a Family Provision Claim is made by someone who is not an eligible person, then their claim will be dismissed.

Under the Administration and Probate Act 1958 (Vic) (Act), the following people are considered to be eligible persons:

1. 1. a spouse or domestic partner;
   2. a child or step-child;
   3. a person who was raised and treated by the Testator as a natural child for a substantial period during the Testator’s lifetime (Non-Biological Child);
   4. a former spouse or domestic partner (provided that a property settlement was not reached after separation and during the Testator’s lifetime);
   5. a grandchild*;
   6. a registered caring partner of the Testator*;
   7. a spouse or domestic partner of a child of the Testator, if the child died within one year of the Testator’s death (this category also includes the spouse or domestic partner of a Non-Biological Child)*;
   8. a member of the Testator’s household (or someone who had been a member in the past or would likely have been a member in the near future but for the death of the Testator)*.

*These categories of eligible persons must demonstrate additional factors before the Court will make an order for further provision, as explained below (Additional Proof).

Additional Proof

If a Family Provision Claim has been commenced by an eligible person in paragraphs 5 to 8 above, then they must also demonstrate to the Court that:

1. 1. they were wholly or partly dependent on the Testator as at the date of death; and

1. 2. they are unable to adequately provide for themselves.

2. HAS THE PLAINTIFF BEEN LEFT WITHOUT ADEQUATE PROVISION?

 After determining the issue of eligibility, the Court will then consider whether the Plaintiff has been left without adequate provision in the Testator’s will and whether the Testator had a moral obligation to provide for the Plaintiff in their will. The Court does this by considering the terms of the Testator’s will, and then assessing whether the Plaintiff has a ‘financial need’ for provision or further provision out of the Testator’s estate.

What is adequate provision?

If the Court is satisfied that the Plaintiff has been left without adequate provision, then the Court will consider what is adequate provision and whether it is appropriate for the Plaintiff to receive provision or further provision out of the estate. This is relevant to how much the Plaintiff should receive from the estate (if anything).

The relevant factors

 When considering a Family Provision Claim, the Court will consider the following matters under the Act:

1. 1. the nature, quality and length of the Testator’s relationship with the Plaintiff;

1. 2. the provisions of the Testator’s will and the degree to which the will fails to make adequate provision for the Plaintiff;

1. 3. the obligations and responsibilities of the Testator to the Plaintiff, and any other eligible person or beneficiaries of the estate;

1. 4. the size of the estate – ie, whether it is a small estate ($750,000 and under);

1. 5. the financial position of the Plaintiff and any other eligible person or beneficiary of the estate;

1. 6. the physical, medical or intellectual disabilities of the Plaintiff;

1. 7. the responsibility of any other person to provide for the Plaintiff;

1. 8. the character and conduct of the Plaintiff towards the Testator;

1. 9. the impact of a family provision order on the amounts to be received by the beneficiaries under the Testator’s will; and

1. 10. any other matter that the Court considers relevant.

 After considering the factors outlined above, the Court must weigh up the competing needs of the Plaintiff, the beneficiaries in the Testator’s will and any other eligible person, and make a decision as to what a ‘wise and just testator would have done in the circumstances, having regard to prevailing community standards’.

3. TIME LIMITS

 A strict time limitation applies to Family Provision Claims in Victoria.

Under the Act, a Plaintiff must file their Family Provision Claim in Court within six months of the date of a grant of probate of the Testator’s will.

Out of time Family Provision Claims

 If a Plaintiff brings a Family Provision Claim outside the six-month limitation date, then the claim can only proceed with the Court’s approval.

The Court will only grant an extension of time in very limited circumstances. Essentially, a Plaintiff must demonstrate that:

1. 1. The estate has not yet been distributed. The Court cannot make an order for provision to a Plaintiff if the estate has been completely distributed.

1. 2. The Plaintiff has a satisfactory explanation for failing to file their Family Provision Claim within the six-month limitation date.

1. 3. The Plaintiff has an arguable case with respect to their actual Family Provision Claim.

An application for an extension of time to file a Family Provision Claim can be a costly and complicated process, which means it is very important to file a Family Provision Claim within the limitation date.

Family Provision Claims and procedure

 In order to proceed with a Family Provision Claim in Victoria, the Plaintiff must file an originating motion and affidavit in support in Court.

The originating motion and affidavit in support outline the basis of the Family Provision Claim and must address the factors outlined above.

Once a Family Provision Claim has been filed in Court, the proceedings will be referred to a directions hearing before a judge or judicial registrar.

A directions hearing is a procedural hearing, where the judge or judicial registrar will consider the Family Provision Claim and then make orders that govern the progress of the claim. In particular, the orders will require:

1. 1. the filing of affidavit material on behalf of the estate;
   2. the executor of the estate to notify the beneficiaries under the Testator’s will and any other interested persons of the proceedings;
   3. the parties to participate in a judicial settlement conference or mediation.

All Family Provision Claims filed in Court in Victoria are referred to a judicial settlement conference or mediation. The purpose of the judicial settlement conference or mediation is to give the parties the opportunity to resolve the Family Provision Claim without the need to incur the significant costs of a trial.

If a Family Provision Claim cannot be resolved at mediation, then it will ultimately be referred to a hearing before a judge who will decide the outcome of the claim.

Who pays the costs of Family Provision Claims?

There is no automatic presumption that a Plaintiff’s costs of a Family Provision Claim will be paid by the estate.

Payment of legal costs upon the conclusion of a Family Provision Claim is the sole discretion of a judge at trial.

Generally speaking, legal costs are said to ‘follow the event’, which means that the successful party will have their costs paid from the estate. This means that if a Plaintiff is successful, then the Court is likely to order that their costs are to be paid from the estate.

However, if the Plaintiff has behaved unreasonably in the Family Provision Claim, then the Court has the power to order that they pay their own legal costs personally – even if they are successful.

Generally, a party to a Family Provision Claim will be deemed to have behaved unreasonably if they have rejected reasonable offers to settle, or if they have behaved in a manner that has unnecessarily increased the parties’ legal costs (eg by sending voluminous correspondence, by filing unnecessary or deficient affidavit material, or by not complying with orders of the Court).