Amendments to the law relating to Part IV or Testators Family Maintenance Applications

4 December 2014

A new law has been passed by the Victorian Parliament which will come into effect as and from 1 January 2015 and will apply to Wills of persons passing away after that date.

Prior to the changes anyone who was owed a “moral obligation” by the deceased to provide for them could seek provision or further provision out of their estate providing they could also demonstrate a financial need.

The new Act makes significant amendments in respect of persons eligible to make an application for provision or further provision as well as the matters which will be taken into consideration by a Court in dealing with such applications. 

The amendments to the Act restrict the possible claimants to the following classes:

• A spouse or domestic partner of the deceased at the time of the deceased’s death;
• A child, step child, or adopted child of the deceased who at the time of death was under the age of 18 years, or a fulltime student between the ages of 18 and 25 or who is under a disability;
• A person who believed the deceased was their parent for a substantial period of their life and was treated by the deceased as their natural child;
• A former spouse or domestic partner in a situation where a property settlement was not reached following their separation;
• A registered caring partner;
• A grandchild of the deceased;
• A spouse or domestic partner of a child of the deceased if the child dies within 1 year of the deceased’s death;
• A member of the household of which the deceased was also a member.

In respect of the persons listed in (e) - (h) above the Court must be satisfied that the person was wholly or partly dependant on the deceased for their support.

In dealing with an application for provision or further provision out of an estate the Court now has additional factors to consider including any evidence of the reason/s for a Testator making the dispositions in their Will and any other evidence of the Deceased’s intention in relation to providing for a claimant.  The Court must also take into account the extent to which the claimant is able to provide adequately for their own proper maintenance and support.

In view of the new requirements it is important that Testators carefully consider how these changes may impact on their estate planning and should contact Marvin Weinberg of this office should they have any concerns or require any further information.