Contesting the Will of a deceased estate
It can be a highly stressful and emotional time when a family member passes away however, it can be even more so if you discover that you were left out of or not adequately provided for under their Will.
It may be that the deceased had not updated their Will for quite some time and at the date of their death, their wishes have substantially changed. Whether that be the case, or you have been specifically excluded in the Will, you may have the right to seek provision, or further provision, to the distribution of the estate assets pursuant to the Administration and Probate Act 1958 (Vic) (‘the Act’).
Who can make a claim?
To make a claim, you must be considered an ‘eligible person’, as defined under s 90A of the Act which includes:
Spouse
Child
Stepchild
Member of the deceased’s household
Former spouse
Other child (adult)
Carer
Grandchild
Other (domestic partner of the deceased)
Person who believed that the deceased was their parent
The spouse
The spouse or domestic partner of the deceased at the time of death is entitled to bring a claim. In determining whether or not someone is a domestic partner, the Court will look at all the circumstances of their lives, including the matters listed in s 35(2) of the Relationships Act 2008 (Vic):
the degree of mutual commitment to a shared life;
the duration of the relationship;
the nature and extent of common residence;
whether or not a sexual relationship exists;
the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
the ownership, use and acquisition of property;
the care and support of children; and
the reputation and public aspects of the relationship.
In the case Re Ho; Liang v Broadfoot the Court confirmed that none of the s 35(2) factors were determinative and that a domestic relationship may exist where couples have separate residences and are not financially dependent on each other.
The plaintiff bears the onus of proof that a domestic relationship existed. Where a separation is asserted, the plaintiff bears the onus in proving that the relationship was ongoing, rather than the defendant in proving the separation.
A child (including adopted child):
This category includes:
child of the deceased under the age of 18 years;
a child of the deceased aged between 18 years and 25 years who is a full-time student; or
a child of the deceased with a disability.
A stepchild
This category includes 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.
A person who believed the deceased was a parent
This category includes a person who, for a substantial period during the life of the deceased:
held the belief that the deceased was their parent;
was treated by the deceased as their natural child; and
at the time of the deceased's death, was:
o under the age of 18 years; or
o a full-time student aged between 18 years and 25 years; or
o a child with a disability.
A former spouse
This category includes 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 commence proceedings under the Family Law Act 1975 (Cth) and has either:
not taken those proceedings; or
commenced but not finalised those proceedings; and
is now prevented from taking or finalising those proceedings because of the death of the deceased.
‘Other’ child
This category includes an adult child or a person who, for a substantial period during the life of the deceased, believed that the deceased was their parent and was treated as a natural child of the deceased.
Other
This category includes a spouse or domestic partner of a child of the deceased (including a stepchild) if the child of the deceased dies within one year of the deceased's death.
Member of the deceased’s household
This category includes a person who, at the time of the deceased's death, was – 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.
What does the Court consider when making an order?
The Court will only make an order in favour of the plaintiff if it is satisfied that, at the time of death, the deceased had a moral duty to provide for the plaintiff’s proper maintenance and support and that Will indeed fails to make adequate provision for the plaintiff’s proper maintenance and support.
The following are matters which the Court must have regard to in making its decision:
1. the deceased's will (if any);
2. any evidence of the deceased's reasons for making the dispositions in the deceased's will (if any); and
3. any other evidence of the deceased's intentions in relation to providing for the eligible person.
After consideration of the above matters, the Court may have regard to the following:
A. any family or other relationship between the deceased and the eligible person, including the nature of the relationship and, if relevant, the length of the relationship.
B. any obligations or responsibilities of the deceased to the eligible person, any other eligible person and the beneficiaries of the estate.
C. the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject.
D. the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of the eligible person, any other eligible person and any beneficiary of the estate.
E. any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate.
F. the age of the eligible person.
G. any contribution (not for adequate consideration) of the eligible person to building up the estate or the welfare of the deceased or the deceased's family.
H. any benefits previously given by the deceased to any eligible person or to any beneficiary.
I. whether the eligible person was being maintained by the deceased before that deceased's death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so.
J. the liability of any other person to maintain the eligible person.
K. the character and conduct of the eligible person or any other person.
L. the effects a family provision order would have on the amounts received from the deceased's estate by other beneficiaries.
M. any other matter the Court considers relevant.
There are many factors that will influence the outcome of your claim. The amount, if any, which you are entitled, will depend upon:
i. the value and nature of the assets in the estate;
ii. your need for provision, based upon your financial position;
iii. the nature and extent of your relationship with the deceased; and
iv. the competing claims of other persons with a legitimate claim on the estate.
Contact us to discuss your eligibility to make a claim and your likely entitlement to the deceased’s estate.