Making a Will does not guarantee that it will be followed exactly. In Victoria, certain people who were not adequately provided for can ask the Supreme Court to change how the estate is divided. These are known as family provision claims, made under Part IV of the Administration and Probate Act 1958 (Vic).
Who can make a claim?
Only “eligible persons” can apply. They include:
- a spouse or domestic partner at the time of death;
- a child or stepchild who was under 18, a full-time student aged 18 to 25, or had a disability;
- other adult children and stepchildren, who must show the deceased had a moral duty to provide for them and that they have a need;
- a former spouse or domestic partner, in limited circumstances;
- a registered caring partner;
- a grandchild or a member of the deceased’s household who was wholly or partly dependent on the deceased.
Each state has its own rules. New South Wales, for example, allows the court to treat some assets outside the estate as part of it. If the deceased lived in another state, or the family is spread across Australia, it is important to know which state’s law applies.
What does the court consider?
The court looks at whether the Will made adequate provision for the applicant’s proper maintenance and support. Relevant matters include the relationship with the deceased, any responsibility the deceased had towards the applicant, the applicant’s financial position and needs, the size of the estate, the needs of other beneficiaries, and any reasons the deceased gave.
How long is there to make a claim?
A claim must generally be filed within six months of the grant of probate or letters of administration. The court can extend this in some cases, but only if the estate has not been fully distributed. For this reason, executors who know a claim may be made usually hold off distributing the estate until the time limit has passed.
Cultural expectations and the law
For many Chinese families, this is where tradition and Australian law meet. Common examples include:
- leaving more to sons than daughters;
- leaving the family business or home to the child who stayed to help;
- leaving less to a child who married against the family’s wishes or moved away;
- supporting relatives overseas at the expense of children in Australia.
These choices are not automatically wrong, but they can attract a claim. A Will is more likely to stand when the reasons are thought through and properly recorded, and when other assets, such as superannuation and jointly held property, are taken into account.
Reducing the risk of a dispute
- Make sure the Will is up to date and reflects your current family situation.
- Record your reasons for unequal gifts in a separate statement prepared with your lawyer.
- Consider how assets passing outside the Will affect fairness between children.
- Talk to your family. Many disputes start because people were surprised.
- If a dispute does arise, consider early mediation before positions harden.
How Chua Tan Associates can help
We advise will-makers on reducing the risk of claims, and we act for executors and family members when disputes arise. Our principal is an accredited mediator who regularly helps Chinese families resolve estate disputes. We advise in English, Mandarin and Cantonese. Time limits apply to claims, so obtain advice promptly.
Related reading
Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice. Victorian law unless stated otherwise.
简体中文 
English (Australia) 
繁體中文