Give us a call:

(02) 6021 5064

NEW FAMILY PROVISION LAWS IN VICTORIA

Recent and significant changes to family provision laws in Victoria have been made and apply to the estates of persons deceased on or after 1 January 2015.

A family provision claim is essentially a challenge to a deceased person’s will. The basis for the claim is that, having regard to the relationship between the deceased person and the claimant (and other factors not discussed in this memorandum), the deceased person should have made provision or further provision for the claimant’s proper maintenance and support.

The new law acts to reduce the categories of those eligible to make a family provision claim.

The Administration and Probate Act 1958 (Vic) now restricts eligibility to:

  1. a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death;
  2. a child of the deceased, including a child adopted by the deceased who, at the time of the deceased’s death, was:
    • under the age of 18 years; or
    • a full-time student aged between 18 years and 25 years; or
    • a child with a disability;
  3. a stepchild of the deceased who, at the time of the deceased’s death, was:
    • under the age of 18 years; or
    • a full-time student aged between 18 years and 25 years; or
    • a stepchild with a disability;
  4. a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased’s death, was—
    • under the age of 18 years; or
    • a full-time student aged between 18 years and 25 years; or
    •  a child with a disability;
  5. a former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death:
    • would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and
    • has either:
      1. not taken those proceedings; or
      2. commenced but not finalised those proceedings; and
      3. is now prevented from taking or finalising those proceedings because of the death of the deceased;
  6. a child or stepchild of the deceased not referred to in paragraph (b) or (c);
  7. a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d);
  8. a registered caring partner of the deceased;
  9. a grandchild of the deceased;
  10. a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (d) or (g)) if the child of the deceased dies within one year of the deceased’s death;
  11. a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.

It is important to note that eligibility to make a family provision claim does not, of itself, entitle a claimant to a family provision order. The Court must consider a range of other factors (not discussed herein) before making the Order.

Finally, there is a time restriction on making a family provision claim of 6 months from the grant of probate of the will or letters of administration, as the case may be, unless the Court considers it appropriate to extend time.

For further advice regarding family provision claims in Victoria (and New South Wales), do not hesitate to contact the experienced solicitors at Burt & Hanke Legal in Albury.