A Will doesn’t necessarily determine the final distribution of an estate. If someone feels they haven’t been adequately provided for, they may be eligible to make an application to the Court for a share or a larger share of a deceased person’s estate.
These claims are generally known as Part IV claims, Testators Family Maintenance (TFM) claims or family provision claims, and they are the most common type of Will disputes.
What laws govern Part IV claims?
In Victoria, the legislative framework for these claims is set out in Part IV of the Administration and Probate Act 1958 (Vic). The Act recognises that in some circumstances, the provisions of a will may not adequately reflect the needs or contributions of certain individuals and provides a mechanism to address such discrepancies.
The purpose of Part IV of the Act is to ensure that certain individuals – typically those who were dependent on the deceased or had a close relationship with them – are not left without enough support from the estate. The law aims to strike a balance between respecting the wishes of the deceased as expressed in their will and ensuring fair treatment of certain close relatives or dependents.
Who is eligible to make a Part IV claim?
Not everybody can make a claim against a deceased’s person’s estate; in fact, the law sets out strict categories of who is eligible.
To be eligible to make a Part IV claim, an individual must fall into one of the following categories:
- Spouse or domestic partner of the deceased at the time of death
- Child of the deceased (which can include adopted children, stepchildren, and those who were treated as a child)
- Spouse or domestic partner of a child of the deceased if the child dies within one year of the death of their parent
- Grandchild in certain circumstances
- Former spouse or domestic partner who would have been able to make a claim under the Family Law Act 1975 but for the death
- Registered caring partner; or
- Member of the deceased’s household
What factors does the Court consider?
When determining a Part IV claim, the court may consider a range of factors, including:
- Whether the deceased had a moral duty to provide for the claimant
- The contents of the will and the reasons for the deceased’s decisions (if known)
- The nature of the relationship between the claimant and the deceased
- The size and assets of the estate
- The character and conduct of the claimant
- The personal and financial circumstances of the claimant and other beneficiaries
- Whether the claimant was financially supported by the deceased
- Any contributions made by the claimant to the deceased’s estate
What is the process?
Part IV claims most often start with negotiations between the claimant’s lawyers and the executors’ lawyers. If these negotiations fail, the claimant will then file their claim with the court, which must usually occur within six months of the grant of probate or letters of administration.
Before the claim goes to a hearing, the court will require the parties to participate in mediation to try and resolve the dispute. Mediation offers a less adversarial and more cost-effective way to settle disputes. During mediation, the parties have the opportunity to negotiate and reach an agreement with the help of a neutral mediator. This process can lead to mutually acceptable outcomes without the need for prolonged litigation.
Most mediations result in a settlement, with both parties agreeing on the amount to be paid to the claimant. However, if mediation fails, the case will go to trial. During the trial, a judge will review all the evidence presented by both sides and make a decision on whether the claimant deserves a larger portion of the estate. The costs of going to trial are considerable, and there can be a significant delay while waiting for a hearing date, so where the parties can reach a compromise through negotiation this is preferable.
Conclusion
Given the complexity of Part IV claims, it is highly recommended to seek legal advice if you’re considering making a claim or if you’re an executor or administrator defending a claim. A lawyer with experience in estate disputes can provide crucial guidance on the strength of the claim, the documentation required, and the procedural steps involved.
If you would like more information or require advice on Part IV claims, our Wills & Estates Team would be glad to assist you. We have experience both in making and defending Part IV claims, and are focused on helping you understand your position so that you can make informed decisions about how to proceed. would be glad to assist you. Please call us on 9063 0300 or send us an email to discuss with one of our lawyers, or click here to make an appointment.
Author
Sheredyn Legg
The information provided in this article is for general informational purposes only and is not intended to serve as legal advice. For specific legal concerns, please speak directly with one of our qualified lawyers.
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