2015 changes to Victoria legislation

On 17 September 2014 Parliament passed amendments (the Amendments) to the Administration and Probate Act 1958 (Vic) (the Act), effectively restricting the type of claims that can be brought by a prospective claimant against a deceased’s estate. The Amendments took effect on 1 January 2015; this means they apply to estates where the willmaker dies on or after that date.

Why were the changes made?

In 1997 the Act was amended to broaden the class of persons entitled to claim against an estate to persons for whom the deceased “would have a moral duty to make proper and adequate provision”.  As a result, the number of claims against deceased estates increased dramatically, including by persons such as carers and distant relatives. Such claims were assisted by the reluctance/inability of courts to award costs against parties bringing unsubstantiated claims.

The Amendments significantly prevent unmeritorious legal proceedings brought by a person claiming to provide some minor form of care or assistance to the Deceased prior to death (i.e – mowing the Deceased’s lawns or taking the Deceased grocery shopping once a fortnight). The Amendments also give the Court power to make orders as to costs it thinks necessary in cases where claims are frivolous, vexatious or issued with no reasonable prospect of success.

The new rules

The Amendments clearly state who is entitled to bring a claim against an estate under the heading “Eligible Person”.  An Eligible Person is defined as the following:

  • Spouse or Domestic Partner of the deceased as at the date of the deceased’s death;
  • A child, including adopted child, who at the date of the deceased’s death;
  • Was under 18 years of age; or
  • Is a full time student between 18 and 25 years of age; or
  • Has a disability.
  • A step child of a domestic partner as at the date of the Deceased’s death, subject to the criteria in points 2)(a) – 2)(c) above; or
  • A person treated as a natural child of the deceased for a substantial period subject to the criteria in points 2)(a) – 2)(c) above; or

A former spouse or domestic partner who would have been able to commence divorce and / or spousal maintenance proceedings at the time of the deceased’s death.
An “Eligible Person” is also defined as:

  1. A person treated as a natural child of the deceased for a substantial period; or
  2. A registered caring partner of the deceased; or
  3. Spouse or domestic partner of a child of the deceased only where that child dies within one year of the deceased’s death; or
  4. A member of the deceased’s household.

A child, or children born under a surrogacy arrangement will now be recognised as the child, or children of the commissioning parents under amendments to the Status of Children Act and therefore classified as an “Eligible Person” under the new legislation.

The new amendments also incorporate the present legislative provisions the court has long been required to take into account when considering the merits of a claim under section 91(4) of the Administration and Probate Act 1958.

Who will be affected?

Clients should note that adult children, not falling into the above categories, are still eligible to bring a claim.  However, where this is the case, the Court must have regard to the degree to which that child is not capable of providing adequately for their own maintenance and support.  This approach is consistent with the Court’s requirement for the claimant to demonstrate they have a true “financial need” for provision from the estate of the deceased and are not merely “prospecting”.

People falling outside of the definition of “Eligible Person” will find it difficult to make a successful claim.  Aside from affecting rights of independent adult children, the new provision will make it more difficult for relatives outside of the immediate family group (e.g. nieces, nephews) and ‘friendly neighbours’ or carers (other than registered caring partners) to bring a successful claim.

It will be interesting to see if there is a rise in the number of ‘registered carers’, and also how courts will interpret the meaning of the phrase ‘a member of the deceased’s household’ – case law from other States, such as New South Wales, where this phrase has been in play for some time, will be relevant. It may also see a greater reliance on other avenues for claims, such as constructive trust-type claims.

Generally it is expected that the number of estate disputes will decrease (at least compared to what would have been the case) and certainly we along with most in the legal profession will welcome the reduction in frivolous claims.

Our lawyers have significant experience dealing with estate disputes. If you are seeking advice or are contemplating bringing proceedings against a deceased’s estate please contact our offices.


Bernie O’Sullivan
Stephen Hardy

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