If you have found yourself being left out of a Will, or the provision made for you fails to reflect the relationship you had with the deceased or your present circumstances (commonly referred to as an insufficient gift), Victorian law may let you to seek further provision from the Estate through what is known as a Part IV claim.
This guide is a practical overview of how Part IV claims work: the strict six-month time limit that applies, who is eligible to bring a claim, and some of the factors the Court takes into account.
what is a part IV claim?
When someone dies and the distribution under their Will or under the intestacy rules leaves an eligible person without adequate provision, Victorian law provides a mechanism to seek further provision from the Estate. This is known as a Part IV claim, a family provision claim, or historically a testator’s family maintenance claim.
A Part IV claim is an application to the County Court or Supreme Court of Victoria, made under Part IV of the Administration and Probate Act 1958 (Vic), by an eligible person who asserts that the deceased had a moral duty to provide for them and that the provision made (or not made) in the Will is inadequate for their proper maintenance and support. The Court has broad discretion to make an order varying the distribution of the estate if it is satisfied that the claim is established.
HOW LONG DO I HAVE TO MAKE A CLAIM?
Under section 99 of the Administration and Probate Act 1958 (Vic), a Part IV claim must be filed within six months of the date of the Grant of Probate (or Letters of Administration, in an intestacy). This is referred to as the “six-month rule”. The time limit runs from the date the Grant is made, not from the date of death.
The Court does retain a discretion to extend the six-month window in exceptional circumstances, particularly where assets remain in the Estate and no injustice would be caused to beneficiaries. However, applicants should not rely on this discretion as it is not easily obtained, and there is no guarantee it will be granted.
WHO IS ELIGIBLE?
To put it simply, not everyone can bring a Part IV claim. The legislation restricts eligibility to defined categories of “eligible persons” under section 90A of the Administration and Probate Act 1958 (Vic). To determine if you are an eligible person, you must classify as a member of one of these categories:
Since 1 January 2015, the legislation has expressly limited eligible persons to those within these categories.
SO What does the Court consider?
In determining whether to make an order and the extent of any provision, the Court must consider a range of factors under section 91A of the Act, including:
- The nature and extent of the claimant’s relationship with the deceased;
- The claimant’s current financial position, resources and needs;
- The claimant’s capacity for self-support;
- Any contributions the claimant made to the Estate or to the deceased’s wellbeing;
- Competing claims of other beneficiaries;
- The nature, value and extent of the Estate; and
- Whether the deceased had made provision for the claimant during their lifetime.
SOME IMPORTANT PRACTICAL CONSIDERATIONS
- A Part IV claim can only be made against Estate assets: assets that pass outside the Estate (such as jointly held property or superannuation paid directly to a nominated beneficiary) are generally not available to satisfy a claim;
- Filing a claim does not stop the Executor from administering the Estate: but the executor must not distribute the remaining assets until the claim is resolved;
- Even if a claim is filed, it will often resolve by mediation or negotiation rather than a full court hearing;
- Executors who distribute the Estate after a claim has been notified may be personally liable, and distributions to beneficiaries prior to the claim’s resolution carry risk for both the Executor and the recipients; and
- Legal advice should be sought promptly as the six-month window can pass quickly (particularly where the Estate is being administered efficiently).
why early advice helps
Early advice can make a significant difference in Part IV claims matters. The six-month window to make a claim moves quicker than you think, and once this time passes, the right to bring a claim altogether could be lost. In our experience, strong claims are built on the details, evidence and careful preparation.
At KPA Lawyers, we approach these matters with a focus on achieving practical outcomes. Get in touch with one of our team to discuss your situation and how one of our experienced lawyers can assist you.
