Family Provision Claims in Victoria: Who Can Challenge a Will?

What Is a Family Provision Claim?

A family provision claim asks the Court to vary the distribution of a deceased estate so that proper provision is made for the applicant. The claim does not challenge the validity of the Will. It accepts that the Will is valid and properly executed, and asks the Court to alter its operation because the provision (if any) is inadequate.

The remedy is an order against the estate. Where a claim succeeds, the Court orders that a sum, a property or a life interest be paid or transferred to the applicant out of estate assets, with the balance of the estate distributed in accordance with the Will (as varied).

Challenging a Will vs Challenging Validity

It is important to keep these two ideas separate from the outset.

• A family provision claim assumes the Will is valid and asks for a different distribution. The question is one of need and provision.
• A challenge to the validity of the Will attacks the document itself — on grounds such as lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud or improper execution. If the challenge succeeds, the Court rejects the Will and the estate is administered under an earlier valid Will, or, if there is none, under the intestacy rules.

The right path depends on the evidence. Sometimes both issues are present and both are run; more often, only one is genuinely arguable. An early conversation with a lawyer experienced in estate disputes will narrow the options quickly.

Who May Be Eligible?

The categories of eligible person are set out in s 90 of the Administration and Probate Act 1958 (Vic). Falling within a category is the starting point only; the statutory threshold in s 91 and the matters in s 91A must then be considered.

• a spouse or domestic partner of the deceased at the date of death;
• a child of the deceased (including an adopted child) who at the date of death was under 18, a full-time student aged 18–25, or had a disability;
• a stepchild of the deceased in those same age, student or disability classes;
• a person who, for a substantial period, believed the deceased was a parent of the person and was treated by the deceased as a natural child, in those same classes;
• a former spouse or former domestic partner of the deceased, but only where all of the conditions in s 90(e)(i)–(iii) are met (concerning uncompleted proceedings under the Family Law Act 1975 (Cth) that could no longer be taken because of the death);
• a child or stepchild of the deceased not within the categories above;
• a person, other than a person listed above, who for a substantial period believed the deceased was a parent of the person and was treated by the deceased as a natural child;
• a registered caring partner of the deceased;
• a grandchild of the deceased;
• a spouse or domestic partner of a child of the deceased in the category specified in s 90(j), where that child dies within one year of the deceased;
• a person described in s 90(k) who was, or had been and would in the near future likely again have been, a member of the household of which the deceased was also a member.

For categories (h)–(k), s 91(2)(b) additionally requires the applicant to have been wholly or partly dependent on the deceased for the applicant's proper maintenance and support.

What Factors Does the Court Consider?

Eligibility is the starting point, not the finishing line. The Court must then consider whether adequate provision has been made and, if not, what order would be appropriate. The statute directs attention to a wide range of matters, including:

• the size and nature of the estate, and the existence of any non-estate assets the deceased could have controlled;
• the applicant's age, health, financial resources, earning capacity and financial needs;
• the nature and length of the relationship between the applicant and the deceased;
• the deceased's stated reasons (in the Will, in a letter of wishes, or otherwise) for the distribution they chose;
• any contribution the applicant made to the deceased's welfare or to the building up of the deceased's assets;
• the financial circumstances of other beneficiaries and competing claimants; and
• the character and conduct of the applicant — including periods of estrangement, support given or withheld, and the reasons for any breakdown in the relationship.

"Adequate Provision" — What Does It Mean?

Section 91 sets the threshold. The Court may order provision only if it is satisfied that:

• the applicant is an eligible person under s 90;
• for a person in categories (h)–(k), the applicant was wholly or partly dependent on the deceased for the applicant's proper maintenance and support (s 91(2)(b));
• at the time of death, the deceased had a moral duty to provide for the applicant's proper maintenance and support; and
• the distribution of the estate effected by the Will (or the intestacy rules, or both) fails to make adequate provision for the applicant's proper maintenance and support.

If the threshold is met, s 91A sets out the matters the Court may consider in determining what order (if any) to make and the amount of any provision. Outcome and amount are fact-specific.

Time Limits

Under s 99, an application must generally be made within 6 months after the grant of probate or letters of administration. The Court may extend time, but an extension application must be made before final distribution. A later extension application does not disturb a distribution made before that application. Section 99A provides specified protections for properly made distributions, including distributions after 6 months from the grant where its notice conditions are met.

Negotiations or mediation do not stop or extend the s 99 filing period. For executors, our companion article on the duties of an executor in Victoria explains how these timing rules interact with distribution.

Common Misconceptions

• "Eligibility means I will get an order." Eligibility under s 90 is the starting point. The Court must still be satisfied of the s 91 threshold and then weigh the s 91A matters.
• "Estrangement is a bar." Estrangement is one factor among the statutory matters the Court may consider under s 91A.
• "A gift in the Will settles the question." Any gift is assessed within the s 91 framework of proper maintenance and support; the size of a gift is not determinative on its own.
• "The estate will pay all my legal costs." Costs are discretionary. The Court's approach depends on the circumstances of the case.

Practical Considerations Before Commencing

Before any letter of demand or proceeding is filed, a potential applicant should think carefully about:

1. Eligibility. Do you actually fall within one of the statutory categories?
2. Estate size and structure. What is in the estate? Are key assets held in trusts, jointly with survivors, or in superannuation? Non-estate assets are not directly available to a family provision order.
3. Competing claimants. Who else has a claim, by Will or by Part IV, and how strong are those claims?
4. Your own financial position. Can you demonstrate genuine need? Will the Court regard your circumstances as warranting further provision?
5. Costs and risk. What are the likely legal costs, what is the realistic range of outcomes, and what is the worst-case costs exposure if the claim fails or recovers only a modest sum? For a detailed overview, see our guide to costs in contested will proceedings in Victoria.
6. Settlement before proceedings. Some family provision matters resolve through correspondence or mediation before a court date. Whether that occurs, and on what terms, is fact-specific.
7. Family considerations. Litigation between family members rarely heals relationships. Be clear-eyed about what you want, what you can live with, and what cost — financial and personal — you are willing to pay.

Negotiation, Mediation and Determination

Parties may exchange information, negotiate or attend mediation. If no agreement is reached, the Court determines the application. Settlement, costs and outcomes are case-specific. Negotiation and mediation do not stop or extend the s 99 filing period. A compromise affecting a minor, person under disability or protected interest may require Court approval, depending on the circumstances. Settled matters are typically documented in a deed of family arrangement or consent orders.

For executors faced with a claim, our companion guide on defending a family provision claim sets out what is required at each stage. For a practical guide to how estate mediation works in Victoria, see our article on mediation in estate litigation in Victoria.

Related Reading

• Defending a Family Provision Claim
• Probate in Victoria
• The Duties of an Executor in Victoria
• Testamentary Trusts Explained
• Why Every Victorian Adult Needs a Will

Frequently Asked Questions

Where This Sits in Our Estate Litigation Guide

A family provision claim is one of several proceedings that can be brought out of a Victorian estate. Our Estate Litigation Lawyers Melbourne pillar guide explains how Part IV claims sit alongside validity challenges, executor disputes and caveat proceedings. Closely related reading from the same cluster: time limits for TFM claims, challenging testamentary capacity, and executor disputes in Victoria. If you would prefer to speak with a lawyer, our Estate Litigation & TFM Claims service page is the fastest route in.