Will challenges – new laws now in place

Amendments to Victorian Laws dealing with challenges to Wills, or testator family maintenance claims, came into effect as from 1 January 2015. There are two significant changes under the legislation:

• first is that the amendments only apply to people who have died from 1 January 2015.  This means the previous laws continue to apply for people who died before this date.
• second is that unlike the previous laws, there are now eligibility restrictions on who can make a claim.

A critical question now in bringing or defending a claim is the eligibility of the person making the claim.

Who is in?

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 previous laws, there was no eligibility requirement and any person could potentially make a claim. Claims have successfully been made by people who would not fit within the new definition of an ‘eligible person’, including next door neighbours, and by extended members of the family, such as nieces, nephews and cousins.

The introduction of the narrower ‘eligible person’ requirement reduces the number of claims in this area, especially those marginal claims by extended family members or unrelated people.

Time limits to bring a claim

Any person proposing to make a claim must still do so within six months of a grant of probate or letters of administration being issued.

Advice and assistance regarding a claim

Getting advice as soon as possible is critical.  This can allow the strength of a claim to be assessed, and avoid missing the time limit to bring a claim.

Hall & Wilcox Lawyers have extensive experience in Will challenges and private disputes (including complex and high value estates). This experience includes acting for claimants seeking further provision from estates and 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.