Thinking | 21 October 2014
Will challenges – are you in or are you out?
Amendments to the Victorian laws dealing with challenges to Wills, or testator family maintenance claims, have now been passed and will come into effect no later than 1 July 2015. The amendments that have been passed are a much watered down version of the original proposed amendments discussed in our earlier update.
The most significant change brought in by the Justice Legislation Amendment (Succession and Surrogacy) Bill 2014 is the introduction of a class of people who can make a claim.
Under the amendments, you can only make a claim if you are an ‘eligible person’. For any person wanting to bring a claim, or an executor defending a claim, the question will be – are they in or are they out?
Who is in?
Under the amendments, there are two tiers of ‘eligible persons’.
Tier One – Spouses and children
The following people can make a claim:
- the spouse or domestic partner;
- a child, stepchild, or person who believed they were a child; and
- a former spouse or domestic partner who would have been able to commence proceedings under the Family Law Act 1975.
Tier Two – Other eligible persons
The following people can also make a claim if they can show they were wholly or partly dependent on the deceased for their proper maintenance and support:
- a grandchild;
- a registered caring partner;
- a spouse or domestic partner of a child of the deceased; and
- a member of the deceased’s household.
Who is out?
Under the current legislation, any person can potentially make a claim. Claims have successfully been made by people who would not fit within the new definition of an ‘eligible person’, such as next door neighbours, and by extended members of the family.
While each case depends on its facts, the introduction of the narrower ‘eligible person’ requirement will likely reduce a number of claims in this area of the law.
When do the changes take effect?
The amendments are likely to come into effect on 1 July 2015, but this may be brought forward to an earlier date. The new laws will apply to any claims made in relation to a person who dies after the law takes effect.
Any claims that relate to a person who dies before the laws take effect will be governed by the existing laws.
Any person considering making a claim should seek advice as soon as possible to evaluate the merits of a claim and the timing of any application.
Hall & Wilcox Lawyers have extensive experience in Will challenges and private disputes (including complex and high value estates). We have acted for claimants seeking further provision from an estate and successfully acted for executors in defending claims.
We can assist in providing advice on making or defending claims, and discuss any concerns or questions regarding a claim.
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