If you feel like you have been left out of a Will, or haven’t been left a fair share, you may be eligible to make a claim for an additional share out of the estate. This is generally referred to as a “Part IV” or “Family Provision Claim” given the Part of the Administration and Probate Act 1958 Victoria under which such claims are brought.
Contesting the distribution of assets in a Will
A claim for a share, or a larger share, from an estate is made on the basis that the deceased had a moral duty to provide for a claimant and they can show that the Will did not adequately provide for their proper maintenance and support. A claimant must be closely related to the deceased. Those generally eligible to make a claim include:
- A partner or former partner;
- A child or stepchild;
- A parent or a grandchild who was dependent on the deceased; or
- A person who lived with and was dependent the deceased when they passed away.
If there is no Will
If the deceased did not have a valid Will then Letters of Administration can be applied for by any person/s entitled to inherit the deceased’s assets. Once Letters of Administration have been granted and an administrator appointed, eligible persons may make a claim.
Any claim for further provision out of a deceased estate must be made to the Court within 6 months of the Grant of Probate or Letters of Administration.
(Claims can be brought later, but leave of a Court is required and may not always be granted. In some cases it is granted where a claimant was unaware of a claim, but seeks to bring one after legal advice is obtained, as long as leave is sought promptly).
What are the relevant considerations?
In considering a claim, the Court looks at a range of factors. Generally, these include:
- the terms of the Will itself;
- the length and nature of your relationship with the deceased;
- the size of the estate;
- your financial and/or health needs;
- the financial and/or health needs of any other beneficiaries and how these may be affected by your claim;
- any obligations the deceased has to other beneficiaries;
- whether you contributed (financially or otherwise) to the deceased during their lifetime; and
- any provisions already made by the deceased during their lifetime.
Before making a claim, you should have the advice of an experienced estate lawyer as to the strength of a potential claim and your prospects of success.
We gather all the information for you relevant to the factors a Court has to consider and if the prospects are good, we also advise whether either the claim should be brought in either the County Court or the Supreme Court. That choice depends on the size and complexity of the estate, amongst other things.
Once a claim, is commenced, position statements or affidavits are exchanged between your lawyers and those acting for the estate. The parties then usually attend a mediation with the purpose of negotiating a possible settlement of the claim. Most claims resolve at this stage of the proceedings.
If not, the matter is then prepared for trial.
Usually, the legal costs of both the estate and a successful claimant are paid or reimbursed from the estate. Unsuccessful claimants are unlikely to have their costs paid from the estate and may even have to pay the estate’s costs in defending their claim, so it is important that you seek legal advice on the strength and prospects of your claim and whether to settle it at mediation or run it to trial.
We can help you
If you believe that you have been wrongly left out of a Will or that you have an entitlement to a greater share of a deceased estate than you have been provided for, please contact Kayla Kristensen on (03) 5434 6666 today.