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A new era - changes to contesting Wills and Estates in Victoria

By Andrew O’Bryan

A new Act in Victoria makes significant changes to those people who are eligible to contest Wills and Estates as well as to the factors that will now be considered by the court in determining the outcome of claims.

The Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (“the new Act”) became law in Victoria on 1 January 2015. It makes key amendments and additions to Part IV of the Administration and Probate Act 1958 (Vic) (“the old Act”) which since July 1998 had governed the process for a person challenging a Will or Estate in seeking provision (or further provision).

1. Eligibility to contest Wills and Estates

The old law provided that any person may challenge a Will or estate for provision (or further provision) if he or she could show that the deceased person had a responsibility to provide for their proper maintenance and support.

The old law had been met with criticism since its inception in 1998. The concern was largely based on the fact there were no fixed categories of people eligible to contest Wills and Estates thereby increasing the potential for frivolous claims which do not accord with current community views.

The new Act addresses this concern by specifying the following claimants are eligible to bring a claim –

(a) A spouse or domestic partner of the deceased at the time of the deceased’s death

(b) A child or step-child of the deceased

(c) A child of the deceased (including an adopted or step-child) who at the time of the deceased’s death was under the age of 18 years, a full-time student aged between 18 and 25 years or under a disability

(d) A person who for a substantial period during the deceased’s life believed the deceased was his or her parent and was treated by the deceased as his or her natural child

(e) A former spouse or domestic partner of the deceased (if a property settlement was not reached with the deceased following their separation)

(f) A registered caring partner of the deceased

(g) A grand-child of the deceased

(h) A spouse or domestic partner of a child of the deceased (if the child dies within one year of the deceased’s death)

(i) A member of the household of which the deceased was (or had been in the past and would have likely been in the near future) also a member

2. Factors to be considered by the Court

The old law required the Court to consider a number of factors in order to determine whether or not the deceased had a “responsibility” to provide for a claimant. These factors are also contained in the new Act. However, the Court is no longer obliged to give consideration to these factors.

The new Act also specifies an additional factor which may be considered by the Court in assessing the merit of a Will contest claim. That is, the effect an order would have on the amounts which are to be received by other beneficiaries of the estate.

The new Act also differs from the old Act by requiring the claimant to prove that the deceased had a “moral duty” to make provision for their proper maintenance and support.

In determining whether or not such a “moral duty” exists, the new Act provides that the Court must have regard to the terms of the deceased’s Will, any evidence of the reasons for the Willmaker making the dispositions in their Will and any other evidence of the deceased’s intentions in relation to providing (or not providing) for the claimant.

Importantly, the new Act also seeks to limit the number of persons contesting Wills by including additional factors for the Court to consider.

In particular, in the case of a claimant who is treated as a natural child of the deceased or a child or step-child of the deceased (who is not a minor, full-time student under 25 or who has a disability), the Court must take into account the degree to which the claimant is unable to provide adequately for their own proper maintenance and support.

In addition, for a registered caring partner, grand-child, spouse or domestic partner of a child of the deceased (if the child dies within one year of the deceased’s death) and a member of the deceased’s household, the Court must consider the degree to which they were wholly or partly dependent on the deceased for their maintenance and support at the time of the deceased’s death.

3. Which claims are affected?

The new Act applies to claims where the deceased died on or after 1 January 2015.

Given the significant changes it is important for executors, administrators and potential claimants to be aware of the manner in which future claims will now be determined by the Court.

Galbally & O’Bryan have significant expertise and experience in acting on behalf of claimants and executors and administrators regarding claims made both in the Supreme and County Courts of Victoria. We will be pleased to provide specific advice on the application of the new Act and the claim process for making or defending a challenge to a Will or Estate.

Contact Andrew O’Bryan for more information.