How to Make a Family Provision Claim: The Basics

If you have been left out of a will, or feel that you have not been properly provided for, you may have the ability to bring a family provision claim in Victoria. These claims allow the court to adjust the distribution of an estate in limited circumstances, but there are important rules and steps to be aware of.

What is a Family Provision Claim?
A family provision claim is an application to the court seeking a greater share (or any share) of a deceased person’s estate. The law recognises that, in some situations, a will may not make appropriate provision for certain people connected to the deceased. However, only specific categories of people are entitled to make a claim.

Confirm You Are Eligible
The first step is to determine whether you are legally eligible to bring a claim. Typically, this includes spouses, domestic partners, children, stepchildren, and in some cases, individuals who were financially dependent on the deceased or part of their household. If you do not fall within one of these categories, you are unlikely to be able to proceed.

Assess the Strength of Your Claim
Eligibility alone is not enough. You must also demonstrate that the will (or the way the estate is being distributed) does not make adequate provision for your proper maintenance and support. The court considers a range of factors, including your financial circumstances, your relationship with the deceased, the size of the estate, and the competing needs of other beneficiaries. Each case is assessed on its own facts.

Be Mindful of Time Limits

Timing is critical. In Victoria, a claim must generally be commenced within six months from the date probate (or letters of administration) is granted. Missing this deadline can significantly affect your ability to proceed, so it is important to act promptly.

Try to Resolve the Matter Early
Before starting formal court proceedings, it is common to attempt to resolve the matter through negotiation. This usually involves contacting the executor of the estate and outlining your position. Many claims are resolved at this stage without the need for litigation.

File a Claim with the Court
If an agreement cannot be reached, the next step is to commence proceedings in the Supreme Court of Victoria. This involves preparing detailed documents, including an affidavit that sets out your financial position, your relationship with the deceased, and the reasons you are seeking further provision.

Mediation
Once proceedings are underway, the court will usually require the parties to participate in mediation. This is a structured process where the parties attempt to resolve the dispute with the assistance of an independent mediator. A large proportion of claims are finalised at this stage.

Court Decision (If Necessary)
If the matter does not settle, it may proceed to a final hearing where a judge will determine whether additional provision should be made. This outcome is less common, as most matters are resolved before reaching this point.

Final Thoughts
Family provision claims can be complex and often involve sensitive family dynamics. Understanding your position early and obtaining appropriate advice can help you navigate the process and achieve a practical outcome. If you believe you may have a claim, it is important to seek guidance as soon as possible to protect your rights.

Please note, this article is general in nature and does not take into account your personal situation or circumstances. For further information please contact Kenney Legal at info@kenneylegal.com.au or contact us via our social media networks.