If you’re a grandchild of the deceased and have been left out of the deceased’s Will or believe you have been unfairly treated in terms of the amount of your inheritance, you may be in a position to make a claim against the estate.
As highlighted in our previous post, Part IV of the Administration and Probate Act 1958 (“the Act”) entitles an ‘eligible person’ to make an application to the Court for a family provision order.
Critically, it is important to note that a Part IV claim must be made within 6 months after the date of the grant of probate of the will or of letters of administration, whichever the case may be. However, in some circumstances, the Court may extend this 6-month period if they deem it appropriate although this is never guaranteed and, as such, it is always our advice to lodge a claim within the 6-month period.
First, it is necessary for an applicant to determine whether they fit into a category of person deemed ‘eligible’. Section 90(i) of the Act notes that an ‘eligible person’ includes ‘a grandchild of the deceased'.
Nonetheless, even if you are an eligible person according to Section 90(i), the Court will consider a range of criteria when ascertaining whether your claim as a grandchild should ultimately be successful.
These considerations include:
1. Section 91(2)(b) – The Court must be satisfied that ‘the person was wholly or partly dependent on the deceased for the eligible person’s proper maintenance and support’. This can either be before or at the at time of the deceased’s death.
2. Section 91(2)(c) – The Court must be satisfied that ‘at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support’.
3. Section 91(2)(d) – The Court must be satisfied ‘that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person’
4. Section 91(5)(b) – The amount of provision made by a family provision order ‘must be proportionate to the eligible person's degree of dependency on the deceased for the person's proper maintenance and support at the time of the deceased's death’.
During this process, the Court will take into account a range of factors, including but not limited to:
The contents of the deceased’s will (if any);
Any evidence of the deceased’s reasons for making the dispositions in the deceased’s will (if any);
The relationship between the deceased and the eligible person;
Any physical, mental or intellectual disability of the eligible person; and
The age of the eligible person.
What does case law tell us?
Under our Common Law system of law, the legislation (as already dicussed) will, over time, be interpreted by the Courts and the decisions of courts will, typically, be persuasive if not binding on future courts.
The recent case of Veniou v Equity Trustees Limited [2018] VSC 832 is one such example. In considering the meaning of the term ‘dependency’(as used in s91 (2) (b) above), the Court found that it did not extend to ‘a mere promise of some undefined financial aid in the future’. Rather, “dependence” requires ‘the actual receipt by the eligible person of material aid prior to the death of the deceased’. This effectively means that a grandchild must establish that they had some form of financial dependency on the deceased during the deceased’s lifetime or at the time of the deceased’s death. Emotional support received from the deceased is not enough to constitute ‘dependency’ for the purposes of a Part IV claim.
Over the years, “the general rule” has been established that the bare fact of the relationship between a grandparent and her grandchildren does not, of itself, create an obligation to make provision for that grandchild, as that responsibility rests on the child’s parents. More recently, the Court in Veniou also held that the general rule in relation to grandchildren and wills is still good law.
In summary
At every stage of contesting or challenging a Will, it is 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. Andrews Crosthwaite Lawyers regularly accepts instructions to commence (or defend) Part IV proceedings. To find out more or to arrange a consultation with an experienced estate lawyer, give us a call on 9450 9400 or email us at info@andcro.com.au.
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