Challenging a Will - Part IV Claims
An application under Part IV of the Administration and Probate Act 1958 Victoria is a claim made against a deceased’s estate. Such an application is made in circumstances where the deceased’s Will does not make adequate provision for the proper maintenance and support of a person for whom the deceased had responsibility to provide. Note that this is not an application that challenges the validity of a will but, rather, is an application that accepts the will as valid but claims that adequate provision has not been made in the will of the deceased for the proper maintenance of an eligible person.
Under the Act, a person eligible to make a claim is generally one of the following:
a spouse or domestic partner of the deceased at the time of the deceased’s death;
a child or stepchild of the deceased;
a child of the deceased, including an adopted child or stepchild who, at the time of the deceased’s death, was under the age of 18 years, a full-time student aged between 18 and 25 years or under a disability;
a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child;
a person who, for a substantial period during the deceased’s life, believed that the deceased was his or her parent and was treated by the deceased as his or her natural child who, at the time of the deceased’s death, was under the age of 18 years, a fulltime student aged between 18 and 25 years or under a disability;
a former spouse or domestic partner of the deceased, if a property settlement was not reached with the deceased following their separation;
a registered caring partner of the deceased;
a grandchild of the deceased;
a spouse or domestic partner of a child of the deceased, if the child dies within one year of the deceased’s death; and
a member of the household of which the deceased was, or had been in the past and would have likely been in the near future, also a member.
In order to make a Part IV claim, an application to the Supreme Court of Victoria is required. The application is made against the executor of the Will. The Court will consider if the deceased had a moral duty to provide for the applicant considering the applicant’s character and conduct towards the deceased and the relationship that they held. The Court will also consider the deceased’s Will and the size of the estate as well as any duty they held to other beneficiaries together with the relative financial circumstances of the various claimants.
A claimant has only 6 months after the date of the grant of probate of the will or of letters of administration to make a claim. In certain circumstances, an extension of the time limit is possible but time is of the essence. If you are considering a claim, you should make contact urgently to discuss your situation.
The matter will often proceed to mediation in an attempt to resolve the dispute without going to Court. If all parties’ claims cannot be resolved during this process, the matter will proceed to be heard and dealt with before the Court.
ASAP Lawyers has extensive experience in assisting clients with making and defending Part IV applications. Contact us on 03 9450 9400 for a confidential consultation on your matter.