• Home
  • /
  • Estate Group update: Proposed Bill to limit the ability to challenge a Will

Estate Group update: Proposed Bill to limit the ability to challenge a Will

Aug 29, 2014

Current Law

In Victoria any person can challenge an Estate on the basis that the Estate does not adequately provide for them.

Typically, this includes children, spouses, domestic partners, step-children, grandchildren, carers and related family members.

Proposed changes

A Bill before parliament proposes to restrict who can bring a claim against an Estate to defined classes.

Those classes will include:

  • A spouse or domestic partner;
  • A former spouse or domestic partner (only if no property settlement reached);
  • A child or stepchild or an adopted child or a person who for a substantial period during the life of the deceased believed that the deceased was his/her parent and was treated as so, who at the date of death was under the age of 18 years, or was a full time student between 18 and 25 years;
  • A child or stepchild with a disability (any age);
  • A child or stepchild who is over 25, or over 18 and not studying full time, but who now must be wholly or partly dependent on the deceased for their maintenance and support; and
  • A person who, at the deceased’s death is a member of the household in which the deceased was also a member (or had been in the past and would have been likely again in near future have the deceased not died).

Under the Bill, certain tests must be satisfied before a court can make a family provision including that:

  • The person is an eligible person and has not entered into a release of rights of agreement (see below);
  • The person was wholly or partially dependent on the deceased;
  • The deceased had a moral duty to provide for the eligible person’s proper maintenance and support; and
  • The distributions of the deceased’s estate failed to make adequate provision for the proper maintenance and support (whether by Will or intestacy laws).

Summary

The changes in the proposed Bill are dramatic and are significant changes to current law in Victoria.

If the Bill is passed many people who can currently challenge a Will will be prevented from doing so.

If you would like further clarification on the proposals, please contact a member of our Estate Group on (03) 8600 8885.

Note: This update is a guide only and is not intended to constitute legal advice.