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Contesting a Will (Family Provision Claim) in Victoria

Family Provision Claims, also known as “Testator’s Family Maintenance Claims” or “Part IV Claims” in Victoria, are legal avenues for eligible persons to contest a Will when they believe that the estate does not adequately provide for their ongoing financial needs or care. These claims have been historically available to anyone in certain jurisdictions, but in more recent times, the eligibility criteria have become more stringent. Understanding who can make a Family Provision Claim, what forms the estate, and the time limits for filing such a claim is essential to navigate this area of law successfully. In this article, Seitz & Pepper Wills, Trusts and Estates Lawyers will delve deeper into the concept of Family Provision Claims, including who is eligible to make a claim. Our Wills, Trusts and Estates Lawyers will also examine what assets form the estate, and the various considerations that Courts make when determining the outcome of these claims.

A Family Provision Claim is a legal process through which an eligible person may contest the Will of a loved one and seek a greater provision from the deceased loved one’s estate. It is a claim for provision out of the estate of a deceased person under the provision of the relevant legislation, usually by a person who was left out of a Will, or who has not been left what they consider to be an adequate provision.

Family Provision Claims originated in the early 20th century, with the introduction of the first family provision legislation in Victoria, Australia, in 1900. Over time, the law has evolved to reflect the changing needs and circumstances of society. Today, most Australian states and territories have their own legislation that governs Family Provision Claims.

In Victoria, the Family Provision Claim is commonly referred to as a “Part IV claim”, which is a reference to the part of the Administration and Probate Act 1958 (Vic) that deals with these types of claims. Historically, a Family Provision Claim was known as a “Testator’s Family Maintenance Claim”.

Who is an Eligible Person?

An eligible person is a person who has standing to bring a Family Provision Claim. In Victoria, eligibility is determined by the Administration and Probate Act 1958 (Vic). If the deceased passed before 2015, then it is possible that any person may bring a Family Provision Claim to the relevant Court. However, if the deceased passed after 1 January 2015, then only certain people are eligible to contest the Will.

The Act provides that eligible persons are:

What forms the Estate?

It is important to note that the estate is usually only made up of assets held by the deceased solely. For example, if the deceased owned a home as a joint tenant with another person, then the right of survivorship will generally apply, meaning that the surviving party will own the asset outright. This rule similarly applies to jointly held bank accounts.

However, in some cases, jointly held assets may be considered part of the estate, particularly where there is evidence to suggest that the deceased had a greater interest in the asset than the surviving joint owner. This is known as the presumption of advancement and can apply where the surviving joint owner is a spouse or child of the deceased.

In circumstances where the deceased has a binding death nomination linked to their superannuation account, the monies held in superannuation will not form part of the estate and will be paid directly to the nominee. However, where there is no binding death nomination, the trustee of the superannuation fund may have discretion to pay the superannuation benefit to a person who is not a beneficiary under the Will or who is not an eligible person under the family provision legislation.

Time Limits for Making a Family Provision Claim

The time limit to file a Family Provision Claim is six months from the date of the Grant of Probate (in circumstances where there is a Will) or the date of Grant of Letters of Administration (in circumstances where the deceased dies intestate or without a valid Will).

However, in certain circumstances, a Family Provision Claim may be filed beyond the six-month time limit. Examples of such circumstances include where the estate has not been distributed, or when the Court determines that it is in the interests of justice to allow the claim to proceed.

Considerations of the Court

When a Court is deciding on a Family Provision Claim, it considers various factors to determine whether or not a provision should be made from the deceased’s estate. One of the most significant factors is the size and nature of the estate. The larger the estate, the more likely it is that the Court Will consider making a provision. However, the Court also considers the nature of the assets held in the estate, such as whether they are liquid or illiquid.

The testamentary wishes of the deceased are also an essential consideration. The Court Will review the Will to ascertain whether the deceased has made any specific bequests or left any particular instructions regarding the distribution of their estate. If the Court finds that the Will reflects the deceased’s wishes, it may be less likely to make a provision.

The claimant’s financial situation and their relationship with the deceased are also crucial factors. If the claimant is financially independent and has had a strained or non-existent relationship with the deceased, the Court may be less likely to make a provision. However, if the claimant has had a close relationship with the deceased and has a genuine need for financial assistance, the Court may be more inclined to make a provision.

The Court also considers the age, health, and any disability of the claimant or any beneficiary. If the claimant or another beneficiary has a particular need for financial assistance, such as a disability or medical condition, the Court may consider making a provision.

Another factor that Courts take into account is the competing needs of the named beneficiaries. If there are other beneficiaries named in the Will, the Court will consider their financial needs and the provision that they have already received from the estate. The Court will attempt to balance the competing needs of the claimant and other beneficiaries to achieve a fair outcome.

Ultimately, for a Family Provision Claim to be successful, the claimant must show that they have a clear financial need and that the deceased had a moral obligation to provide financial assistance. This means that the Court will need to be convinced that the deceased had a duty to provide for the claimant, given the claimant’s circumstances and the nature of the relationship with the deceased. It is essential to note that the Court will not automatically make a provision based on these factors alone. The Court will consider all of the evidence presented by both parties and make a decision that is fair and just in the circumstances.

Procedure for making a Family Provision Claim

The procedure for making a Family Provision Claim Will depend on the jurisdiction in which the deceased lived, and the Court in which the claim is to be filed.

In most cases, the first step in making a Family Provision Claim is to seek legal advice from a lawyer with expertise in estate litigation. The lawyer Will help the claimant determine whether they are eligible to make a claim, the strength of their case, and the potential outcomes of the claim.

Once the claimant has decided to proceed with a claim, the next step is to file a claim form with the relevant Court. The claim form must be accompanied by an affidavit that sets out the claimant’s financial situation, their relationship with the deceased, and the reasons why they believe they should receive further provision from the estate.

The executor of the estate and any other interested parties will be served with a copy of the claim form and affidavit and will have the opportunity to respond. The matter will then proceed to a Court hearing, at which the judge will hear evidence from both sides and make a determination as to whether the claim should be allowed, and if so, the amount of further provision to be made from the estate.

It is important to note that Family Provision Claims can be complex and emotionally charged, and it is essential to seek the advice of an experienced lawyer before proceeding with a claim.

Alternatives to making a Family Provision Claim

In some cases, it may be possible to resolve a potential dispute over a deceased estate without the need for a Family Provision Claim. Some alternative dispute resolution methods include:

While these methods can be effective in resolving disputes over a deceased estate, it is important to seek the legal advice of Seitz & Pepper Wills, Trusts and Estates Lawyers, before agreeing to any settlement, as it may not be in the claimant’s best interests.


In conclusion, Family Provision Claims can be complex and emotionally charged legal proceedings that require careful consideration and expert legal guidance. Eligible persons who feel that a deceased loved one’s estate has not adequately provided for their ongoing financial needs or care can pursue a Family Provision Claim, subject to certain eligibility criteria and time limits. The outcome of such claims depends on a variety of factors, including the size and nature of the estate, the testamentary wishes of the deceased, the financial situation and relationship of the claimant with the deceased, and the needs of named beneficiaries. While Courts take a holistic view of each case to ensure that a just outcome is reached, the success of a Family Provision Claim ultimately rests on the claimant’s ability to demonstrate a clear financial need and a moral obligation on the part of the deceased to provide financial assistance. As such, anyone contemplating a Family Provision Claim should seek the expert legal advice of Seitz & Pepper Wills, Trusts and Estates Lawyers, to guide them through the process and maximize their chances of success.