What is a Family Provision Claim (challenging an estate)?

Yarra glen lawyers

What is a Family Provision Claim?

A Family Provision Claim is when a person makes an application to the Supreme Court for an order for provision to be made for them from a deceased estate.

This is sometimes also called a Testator’s Family Maintenance (TFM) claim or a Part IV claim (because it’s made under Part IV of the Administration and Probate Act 1958 (Vic) (‘the act))

Basically, this is when someone thinks that they should have gotten something (or more) from a deceased estate, so they apply to the court for an order for a portion (or a bigger portion) of the estate.

Who can make a claim?

A person needs to be an ‘eligible person’ as defined in the Act to be able to make a claim.

An eligible person includes the following:

  • a spouse or domestic partner (at the time of death);
  • a child, including an adopted child or stepchild;
  • a person who believed that the deceased was their parent and was treated by the deceased as a child;
  • a former spouse or domestic partner if at the time of death they would have been able to start proceedings for a family law settlement;
  • a registered caring partner;
  • a grandchild;
  • a spouse or domestic partner of a child, including an adopted child or stepchild or a person treated by the deceased as a child, if the child dies within one year of the deceased; and
  • a member of the household of the deceased.

What does the court have to consider?

Once the court is satisfied that the person making the application is an eligible person, they will then need to be satisfied of some additional criteria, including:

  • that the person was wholly or partly dependent of the deceased for their proper maintenance and support (this doesnt apply to all categories, such as spouse or child under 18)
  • that the deceased had a moral duty to provide for ther person’s proper maintenance and support;
  • that the will (or the distrivution under the act if there is no Will) does not make adequate provision for the eligible person’s proper maintenance and support.

Essentially, the court needs to know that the person was reliant on the deceased and that there is a need for provision (or more provision) from the estate so that they can support themselves.

How can I make a claim on an estate?

First, there are time limitations involved in making a family provision claim so you should seek legal advice as soon as possible to ensure that you don’t run out of time. Generally, an eligible person has six months after the date probate was granted to file their application to the court.

Then, if you are still within the limitation period, or ig there is an exception to the limitation period which applies, then you should speak to a lawyer about what steps to take next.

In most cases it is best to try to reach an agreement with the estate rather than going straight to court proceedings. If an agreement can’t be reached initially, and depending on how much time there is before the limitation period expires, you might consider mediation to try to resolve the dispute before going to court.

So what now?

Contact us today to book an appointment to discuss your family provision claim matter. Call us today or send us an email!