The March 2015 edition of the Law Institute Journal includes a cover story on new changes to “family provision” under Part IV of the Administration and Probate Act 1958 (Vic), which took effect on 1 January 2015.

Part IV of the Administration and Probate Act provides enables a person who is “eligible person”, and who are not mentioned or reasonably provided for in the will of a deceased person, to make a claim for a share of the estate.

The effect of the recent amendments, is that Victoria has a narrower range of persons who are eligible persons to apply for family provision under Part IV.

Under the new provisions for Victoria,  particular eligible persons must have been “wholly or partly dependent on the deceased for the eligible person’s proper maintenance and support” and the court must consider the degree of dependency, and also the amount of provision ordered must be proportionate to the eligible person’s dependency on the deceased at the time of death.

In relation to applications by adult children, the court will be required to consider the degree to which the adult child is not capable, by reasonable means, of providing adequately for their own proper maintenance and support.

Proceedings can be commenced in either the Supreme Court or County Court, whereas previously only the County Court had jurisdiction.

The changes also now mean that the court “must” have regard to the deceased’s will, any evidence of the deceased’s reasons for making the dispositions in the will, as well as any other evidence of the deceased’s intentions in relation to providing for the eligible person.

The article, written by solicitor Nancy Collins, is available online here:

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