Protecting your rights in Estate disputes: Understanding Family Provision Claims

Family Provision Claims (FPC), also known as contesting a Will or Estate litigation, are legal actions that arise when an individual believes they have been inadequately provided for in a deceased person's Will.  

In Victoria, FPCs are governed by the Administration and Probate Act 1958.

This article will delve into the key aspects of FPCs in Victoria, including who can make a claim, the grounds for a successful claim, and the process involved. 

Who can make a Family Provision Claim? 

In Victoria, the law recognises certain categories of individuals who are eligible to make a FPC: 

1. Spouse or domestic partner: A spouse (including de facto and same-sex partners) is entitled to make a claim. This extends to a former spouse or partner if financial obligations remained at the time of death. 

2. Children: Biological or adopted children, stepchildren, and grandchildren of the deceased person are eligible to make a claim. 

3. Dependents: Individuals who can demonstrate that they were wholly or partly dependent on the deceased at the time of death may also be eligible. 

4. Former spouses: In some cases, former spouses who have not remarried may have a valid claim. 

Grounds for a successful Family Provision Claim 

To successfully contest a Will in Victoria, a claimant must establish one or more of the following grounds: 

1. Inadequate provision: The claimant must demonstrate that they have not been adequately provided for in the deceased person's will. This involves proving that the provision made for them is insufficient for their proper maintenance, support, education, or advancement in life. 

2. Moral duty: The court considers the moral duty of the deceased to provide for their eligible dependents. This includes an assessment of the claimant's relationship with the deceased and any responsibilities the deceased had towards them. 

3. Time limit: Family Provision claims must be filed within six months from the date of the grant of probate or administration. In some cases, the court may grant extensions, but these are not guaranteed. 

The process of making a Family Provision Claim 

1. Seek legal advice: The first step for a potential claimant is to consult with a solicitor experienced in estate litigation. They can assess the strength of the case and guide the claimant through the process. 

2. Negotiation and mediation: Often, a resolution can be reached through negotiation or mediation between the parties involved. This can save time and costs compared to proceeding to court. 

3. Court action: If a resolution cannot be reached through negotiation, the claimant may initiate court proceedings. Mediation is still a mandatory step in the court process but if the matter remains unresolved, the court will assess the case's merits and consider the factors involved in the claim. 

4. Court decision: The court will make a determination based on the evidence presented, the claimant's eligibility, and the grounds for the claim. If the claim is successful, the court may order a provision from the deceased's estate. 

In conclusion 

FPCs in Victoria provide a legal avenue for eligible individuals to contest a Will when they believe they have not been adequately provided for. It is essential for potential claimants to seek legal advice early in the process and be aware of the time limits involved.  

While FPCs can be emotionally challenging and legally complex, they serve a crucial role in ensuring that fair and just provisions are made for dependents and loved ones following a person's passing. 

The Wills & Estate team at OFRM is here to help. You can call us on 03 5445 1000 or visit our website to book an appointment which can take place by video conference or at our offices, whichever suits you best!