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Our Expertise

Wills and Estate Challenges

If a deceased person’s Will or estate has not made adequate provision for your maintenance and support, you are entitled to seek further provision.

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.

2. Children

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:

  1. the deceased had a responsibility to provide for a person’s proper maintenance and support; and
  2. that there is inadequate provision made for the person under the estate.

In deciding if the deceased had a responsibility to provide for a person the Court considers many factors including: 

  • the nature of the relationship between the deceased and the person;
  • the obligations of the deceased to the person;
  • any contribution made by the person to the deceased;
  • the age, health, sex and financial resources of the person;
  • the size and nature of the estate; and
  • the other beneficiaries of the estate.

In deciding if an estate has made adequate provision for the proper maintenance and support of a person the Court considers: 

  • the needs of the person;
  • the capacity and financial resources of the person to meet their needs;
  • the provision made under the estate for the person; and
  • the needs and situation of the other beneficiaries of the estate.

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.

Our experience

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.

As experts in this area Russell Kennedy regularly distributes information and hosts seminars on this topic. To subscribe to our mailing list please click on 'Join our industry mailing lists' at the bottom of this page.