Where inadequate provision has been made

It can happen that sometimes proper provision has not been made for a person.

This might arise because the Will of a deceased person fails to make that provision. Alternatively, where there was no Will, there is a statutory formula that sets out how a deceased person’s estate is to be distributed, and it can happen that that formula might fail to make proper provision for a person in all the circumstances.

In either situation, the Victorian Supreme Court can make orders altering a Will, or varying the statutory formula, so that that proper provision for a person is in fact made. These types of claims are known as “Part IV claims” and as “testator’s family maintenance claims”.

At McNab, McNab & Starke we handle many such cases every year, whether acting for the claimant or for the estate in defending such claims.

Claimants might be a spouse, domestic partner or child of the deceased. The list of eligible claimants is more extensive than that and we can discuss that with you if you have a query.

THE ISSUES AND FACTORS THE COURT WILL CONSIDER

The issues are:

• Whether the deceased had an obligation to make provision for the applicant;
• If there was such an obligation, then whether the Will (or if there is no Will whether the statutory scheme of distribution that would otherwise apply) made that provision; and
• If there is inadequate provision, the Court needs to consider what would be adequate and proper provision in all the circumstances.

The legislation requires that the Court to take into account a number of factors in assessing all three of these issues.

The factors the Court will consider are:

1. any family or other relationship between the deceased and the applicant, including the nature of the relationship and, where relevant, its length;
2. any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries of the estate;
3. the size and nature of the estate and any charges and liabilities to which it is subject;
4. the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiaries of the estate at the time of the hearing and for the foreseeable future;
5. any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
6. the age of the applicant;
7. any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
8. any benefits previously given by the deceased to any applicant or to any beneficiary;
9. whether the applicant was being maintained by the deceased before that person’s death either wholly or partly and, where the court considers it relevant, the extent to which and on the basis upon which the deceased had assumed that responsibility;
10. the liability of any other person to maintain the applicant;
11. the character and conduct of the applicant or any other person; and
12. any other matter the Court considers relevant.

No two estates will ever have the same factual mix.

A Part IV claim can only affect those assets that are part of the estate of the person who has died. There are some assets that do not form part of the estate, the entitlement to which is governed by matters outside of the Will or intestate scheme of distribution. Thus there may be alternatives open to seek provision from these assets independently from a Part IV claim.

At McNab, McNab & Starke we can help you with this important area of law.

It is important to remember that each State of Australia has its own laws and, whilst the laws of many States are similar, this website only details the law of Victoria regarding the making of testator’s family maintenance claims.

We can help

We will respond within the next business day. You can also call 03 9670 9691.