Will disputes: it’s not fair and I want my share

By William Moore and Olivia Hunt

Estate disputes

Throw in the recent death of a family member, some animosity, and expectations that have not been met and what do you get? Will disputes can be an emotional rollercoaster, and have the potential to break family connections.

We often hear the words ‘it’s not fair and I want my share’. Challenging a Will and claiming further provision is not quite as simple as everyone getting an equal part. Over the coming weeks, we will discuss who can make a claim, timeframes, and some practical considerations that all impact on the success or failure of a claim.

Victorian position

In this article, we will be focusing on further provision claims in Victoria (we will discuss NSW in a separate article), including who can bring a claim, and the obligations and duties of the legal personal representative if a claim is made. Getting advice early is important to determine if a claim is valid, and avoid missing critical timeframes.

Transcript

Olivia Hunt

[Transcript]

In Victoria, estate litigation is becoming extremely more common and complex. It’s important for advisors and clients then to know what their position is in the event a claim is made against an estate or they wish to make a claim against a deceased person’s estate. I’ll be touching on the position in Victoria and the considerations they would make for either of these two applications.

In Victoria, when someone makes a claim there’s a four-part test that the courts will undertake. The first part of the test is to determine if they’re an eligible person. If that’s satisfied the court goes on to the next limb to decide if the eligible person, the testator, had a moral obligation to provide for them in their Will. The third test that the court will apply is to determine if the Will failed to make adequate and proper provision for the maintenance of the eligible person. Lastly, if they’ve satisfied these three tests, the court will then decide what amount ought to have been awarded to that person.

It’s extremely important to note, that if that person is going to make a claim, they have six months to do so from the date the grant of probate or grant of  letters of administration is issued by the court.

In the event you’re acting on the other side of these disputes where it’s for the legal personal representative, so that’s either the executor or the administrator, it’s important that they obtain advice if they become aware there may be a claim against the estate.

When acting as the legal personal representative there’s certain obligations they have and duties to the court, if a claim is made. And they also should be aware of any risks and personal liability which they could have if they were obviously to take steps with the estate prior to the six months expiring as to when someone could make a claim against the estate.

So it’s the perfect time for advisors to touch base with us, so we can work out what steps the executor can take and what they shouldn’t take until the expiration of that time.

In the next part of this series, William Moore will be touching on ways and steps that you can take as a testator to minimise the risk during your lifetime of someone then later challenging your estate.

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Who can make a claim?

To make a successful claim in Victoria there are four key components.

1. the applicant must be an eligible person, which includes a:
   1. spouse, domestic partner, minor child or stepchild, dependant children from 18-25 and a former spouse who has not taken or completed family law proceedings;
   2. independent children or stepchildren, person who believed they were a child (these people must show they cannot provide for their own proper maintenance and support); and
   3. a registered caring partner, grandchild and a member of the household (these people must show some dependency on the deceased at the time of death).
2. Did the deceased have a moral duty to provide for the eligible persons proper maintenance and support (this refers to community standards and expectations)?
3. Does the distribution of the estate fail to make adequate provision for the proper maintenance and support of the eligible person (this considers factors such as the station in life, age, health, financial resources, and relationship with the deceased)?
4. If the Court finds the deceased failed to make adequate provision, the Court can award further provision (on the basis it is not more than needed for proper maintenance and support).

Time limits to bring a claim

A claim for further provision must be made within six months from the date a grant of probate or letters of administration has been made. The Court may allow an extension to this timeframe in exceptional circumstances if there are still assets in the estate.

Duty of legal personal representative

The legal personal representative (LPR) (the executor or administrator) has duties when a claim is made against the Estate, including:

1. to protect the interests of the beneficiaries and uphold the Will;
2. to assess evidence impartially and objectively and compromise a claim where appropriate (especially small estates); and
3. to put evidence provided by the beneficiaries of the Will before the Court.

Risks for the legal personal representative

The LPR needs to understand their personal risks when there is an estate dispute.

There are some instances where interim distributions can be made (such as the maintenance, support or education of the partner and/or child of the deceased), despite a claim being made.

Given the LPR may be personally liable if they distribute an estate before the six-month period expires, before any distributions are made, they should get advice on the risks, and also ensure they retain enough funds to meet a successful claim if interim distributions are being considered.

In our next article, we will be talking through some practical considerations and planning opportunities if there are concerns about a claim being brought.