When a person makes a Will, they have the right to decide who will inherit from their estate after they die. However there are laws to protect people close to the deceased such as a spouse, child (including a step child), domestic partner or grandchild if they are left out of a Will or do not receive adequate provision in a Will or under the laws of intestacy (which apply if someone dies without a will). The law enables such people to make a claim against the estate.
Going to court in such cases is very expensive to both the person making a claim and the deceased estate. For this reason, and to preserve relationships, many claims settle at a mediation without the need to go to court.
Whether you can make a claim depends on whether you are eligible to make a claim. The following needs to be satisfied:
- That the deceased had a moral duty to provide for the eligible person’s proper maintenance and support at the date of death
- That there is a failure to make adequate provision for the proper maintenance and support of the eligible person
- For certain claimants such as a grandchild, they need to have been wholly or partly dependent on the deceased at the date of death
The factors the Court will consider when making an order are as follows;
- Any family or other relationship between the deceased and the applicant, including the nature of the relationship and, where relevant, its length
- Any obligations or responsibilities of the deceased to the applicant, any other applicant and the beneficiaries of the estate
- The size and nature of the estate and any charges and liabilities to which it is subject
- 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
- Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate
- The age of the applicant
- 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
- Any benefits previously given by the deceased to any applicant or to any beneficiary
- 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
- The liability of any other person to maintain the applicant
- The character and conduct of the applicant or any other person
- The effects an order would have on the amounts received from the deceased’s estate by other beneficiaries
- Any other matter the Court considers relevant
It is important to obtain legal advice in relation to making a claim as soon as possible for the following reasons:
- There is also a time limit of 6 months from the date probate is granted (although this can be extended in limited circumstances).
- A claim against an estate only affects the assets that are part of the estate. Certain assets such as superannuation, family trusts and life insurance do not form part of the estate when a person dies. There may therefore be alternatives options available to you.
Please note that this website only details the law of Victoria regarding the making of claims against deceased estates.