Understanding family provision in Victoria
When someone passes away, their Will is meant to represent their final wishes and guide how their estate should be distributed. But what happens when the Will doesn’t provide fairly for a dependent or someone with a genuine expectation of support? In Victoria, the law allows such people to challenge an estate’s distribution through a Part IV claim.
So, what is a Part IV claim? It’s a legal application to the Supreme Court of Victoria, also known as a family provision claim or a Testator’s Family Maintenance (TFM) claim, where an eligible person claims they were not adequately provided for in the Will.
This blog explores the purpose of Part IV claims, who can make them, what the Court considers, and how such claims can be defended.
What are family provision claims?
Family provision claims in Victoria are designed to balance the contents of the Will, demonstrating the wishes of the deceased and the deceased’s responsibilities to dependents. While people have the freedom to distribute their estate as they wish in their Will, the law recognises that there are circumstances where fairness and responsibility require intervention.
In simple terms, what is a family provision claim? It is a legal challenge brought by someone who feels they have been unfairly left out of a Will or given less than they should have been. Part IV of the Administration and Probate Act 1958 outlines the rules governing these claims.
This process is sometimes referred to as a testator’s family maintenance claim, reflecting its purpose: to ensure the deceased’s dependents and loved ones receive adequate and proper provision from the estate.
Who can make a Part IV Claim in Victoria?
Not everyone can bring a claim. Eligibility is tightly defined to prevent frivolous challenges. Under Victorian law, those who can make a claim include:
- A spouse or domestic partner of the deceased (including de facto or same-sex partners)
- A child, stepchild, or adopted child
- A person who believed the deceased was their parent and was treated as such
- A former spouse or partner with ongoing property proceedings at the time of death
- A grandchild
- Someone who was wholly or partly financially dependent on the deceased
This legislation ensures that only those who had a genuine relationship with the deceased are eligible persons who can make a claim on the deceased’s estate.
What does the Court consider in a family provision claim?
If you’re considering a family provision claim in Victoria, it’s important to know that the Court will not simply rewrite the Will because someone is unhappy. Instead, it carefully considers:
- The terms of the Will - Was the claimant provided for in any way in the Will?
- The size of the estate – A small estate may not be able to meet every claim.
- The claimant’s financial circumstances – Are they in genuine need of provision?
- The relationship with the deceased – Was there closeness, estrangement, or dependency?
- Obligations of the deceased – Did the deceased owe a duty to support the claimant?
- Competing claims – How would provision for one claimant affect other beneficiaries?
The Court aims to ensure that 'adequate and proper provision' is made where it is justified, while still respecting the testator’s wishes as much as possible.
How to defend a family provision claim
Defending a claim requires showing that the deceased’s Will already made adequate provision, or that the claimant does not meet the eligibility requirements. Key strategies may include:
- Demonstrating that the claimant is financially independent and not in need
- Highlighting estrangement or a weak relationship with the deceased
- Arguing that the Will already made fair provision considering all circumstances
- Raising evidence of the deceased’s clear intentions in drafting the Will
Defending a claim can be complex and emotionally taxing, particularly as it usually involves family members. Skilled legal representation ensures the estate is protected and the deceased’s wishes are properly honoured.
[tip_box]Keep thorough records of your relationship with the deceased. Letters, financial contributions, or evidence of care can make a big difference in supporting or defending a claim.[/tip_box]
The Process of a Part IV Claim
Understanding what a Part IV claim is also means understanding the process. Here’s how it generally unfolds in Victoria:
- Initial advice – A claimant seeks legal advice to assess eligibility and grounds.
- Filing the claim – The claim is lodged in the Supreme Court of Victoria.
- Notification – Executors and beneficiaries are notified.
- Mediation – Most claims proceed to mediation, where parties attempt settlement.
- Hearing – If unresolved, the case proceeds to a court hearing where a judge makes the final decision.
Because claims must be lodged within six months of probate being granted, timing is critical. Late applications require special permission from the Court, which is not always granted.
Why Part IV Claims exist
At its heart, a Part IV claim demonstrates the law’s recognition that fairness sometimes requires intervention. Responsibilities to dependents cannot always be ignored.
Not every family member is automatically entitled to a share, but the law ensures vulnerable dependents are not left without proper support.
Why choose Carew Counsel for family provision claims?
Having the right legal guidance is essential if you’re considering bringing or defending a Part IV claim. At Carew Counsel, we provide:
- Clear advice on whether you are eligible to bring a claim
- Skilled representation for executors and beneficiaries defending claims
- Compassionate support during what is often an emotionally charged process
- Transparent fee structures to reduce stress and uncertainty
Our team has the expertise to advise on family provision matters, whether you are considering bringing a claim or defending one, and can confidently guide you at every stage.
We're here to guide you through the process
While the process can be complex, you can understand your rights and take the appropriate steps with the right legal advice from a trusted lawyer.
If you are considering a claim or defending one as an executor or beneficiary, contact Carew Counsel for trusted, experienced advice tailored to wills and estates.
Carew Counsel is recognised as one of Melbourne’s leading family law firms, ranked in Doyle’s Guide and trusted for over 40 years. Our accredited specialists provide legal expertise and compassionate support, helping you confidently navigate family provision claims.