If you’ve been left out of a Will or have been unfairly treated in terms of the amount of your inheritance you may be able to make a claim against the estate.
As noted in our prior post, a Part IV Application under the Administration and Probate Act 1958 ("the Act") is a claim for family provision made against a deceased estate. An Application under this Act is made in circumstances where the deceased’s Will does not make adequate provision for the proper maintenance and support of a person for whom the deceased had responsibility to provide. Note that this is not an application which challenges the validity of a will but rather an application which accepts the will as valid, however, makes claim that adequate provision has not been provided for proper maintenance of an eligible person.
Under the Act, a person eligible to make a claim is generally as follows:
a spouse or domestic partner of the deceased at the time of the deceased’s death;
a child or stepchild of the deceased;
a child of the deceased, including an adopted child or stepchild 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;
a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child;
a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child who, at the time of the deceased’s death, was under the age of 18 years, a fulltime student aged between 18 and 25 years or under a disability;
a former spouse or domestic partner of the deceased, if a property settlement was not reached with the deceased following their separation;
a registered caring partner of the deceased;
a grandchild of the deceased;
a 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 household of which the deceased was, or had been in the past and would have likely been in the near future, also a member
THE PROCESS:
To make a Part IV claim, an application to the Supreme Court of Victoria is required. The application is made against the executor of the Will.
The plaintiff has 6 months after the date of the Grant of Probate of the Will or Letters of Administration to make a claim. Essentially, time is of the essence, if you are considering a claim, you should contact us urgently to discuss the situation.
Once an application has been submitted the court will often order mediation as a first attempt to resolve the dispute without having to go to court. If the parties cannot resolve the dispute during this process, the matter will proceed to be heard and dealt with before the court.
The court will consider if the deceased had a moral duty to provide for the applicant considering the applicant’s character and conduct towards the deceased and the relationship that they held. The court will also consider the deceased’s Will and the size of the estate as well as any duty they held to other beneficiaries.
At every stage of contesting or challenging a Will it’s important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court, we also have the skills to fight on your behalf. ASAP Lawyers regularly accepts instructions to commence Part IV proceedings. To find out more or to arrange a consultation with an experienced estate lawyer in Heidelberg, give us a call on 9450 9400.