Who may make a claim?
Any person can apply to the County or Supreme Court of Victoria, if the deceased had a responsibility to provide for his or her maintenance and support.
Successful applications have been made under Part IV of the Administration and Probate Act 1958 (Vic), by spouses, defacto spouses, domestic partners, children and other dependants of a deceased person.
1. Spouses and defacto spouses
Victorian courts recognise that spouses have a responsibility to provide maintenance and support to one another. Therefore, widows/widowers and de facto spouses (including same sex partners), are eligible to make a claim.
A de facto relationship exists where two persons, irrespective of gender, have been living together as a couple on a genuine domestic basis.
Separated spouses and divorced spouses may also be entitled to make a claim after careful consideration of the circumstances of the relationship.
This includes minors, adult children, natural children, step children or adopted children of the deceased.
3. Other persons
Other persons who had a close relationship of dependency or interdependency with the deceased including, but not limited to - siblings, grandchildren and nieces and nephews.
How does the court assess a family maintenance claim?
The Court may make an order for family maintenance if it is established on the balance of probabilities that:
In deciding if the deceased had a responsibility to provide for a person the Court considers many factors including:
In deciding if an estate has made adequate provision for the proper maintenance and support of a person the Court considers:
Timing of claims
First, the executors of the estate must obtain a Grant of Probate of the Will, or a grant of letters of administration of the deceased’s estate if the deceased left no Will.
An application for family maintenance may then be lodged with the Court within 6 months from the date of the Grant. The Court may grant an extension of time for making an application in some cases.
We are expert advisers in relation to Estate disputes, especially in the area of inadequate provision for particular family members or dependants. We have substantial experience in acting in such matters for all of the surviving spouse, the executors, children or others.
We are also constantly involved in other disputes involving Wills and Trusts.
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