If you have been left out of a will, or left less than you expected, you may be able to ask the Supreme Court of Victoria for further provision from the estate. This is called a family provision claim. Whether you can bring one depends first on whether you are an eligible person.
Who can seek family provision in Victoria?
Eligibility is set by sections 90 and 91 of the Administration and Probate Act 1958 (Vic). The eligible categories include:
- a spouse or domestic partner of the deceased at the time of death
- a child or stepchild of the deceased, and some people who believed the deceased was their parent and were treated as a natural child
- certain former spouses or domestic partners, in specified circumstances
- a registered caring partner
- a grandchild
- a spouse or domestic partner of a child of the deceased, in some circumstances where the child died within a year of the deceased
- a member of the deceased’s household, in specified circumstances
This is a summary rather than the full statutory list. Some categories also need to show they were wholly or partly dependent on the deceased for their proper maintenance and support, but that requirement does not apply to every applicant. Being a parent of the deceased is not a separate category on its own, although a parent may qualify in other ways, such as being a member of the household.
Being eligible is only the first step
Eligibility does not guarantee an order. The Court considers whether the deceased had a responsibility to provide for you and whether adequate provision was made, looking at matters such as the size of the estate, your financial position and needs, and your relationship with the deceased.
Act promptly
Family provision applications generally must be made within six months of the grant of probate or letters of administration. The Court may allow a late application before the estate is fully distributed, but an extension is not guaranteed. Other estate disputes have different procedural requirements, so please get advice early.
Talk to us about your situation
Every family is different, so have your relationship, your financial circumstances and the estate documents assessed before deciding whether you can or can’t bring a claim. Call our wills and estate disputes lawyers on (03) 9629 2211 or send us an enquiry to discuss your next step.
This article provides general information about the law as described above. It is not advice on your circumstances. Laws, procedures and deadlines can change, so please get advice about your matter, particularly before signing documents or where a deadline may apply.
