If a child is left out of a Will, can they contest it?

Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’) empowers the Court to make provision for an eligible person from a deceased estate if satisfied that there has been inadequate provision for that person under the Will or the rules of intestacy. Claims of this nature are referred to in the Act as family provision claims. Importantly, the children of a deceased person are considered eligible persons for the purpose of these claims and can seek further provision from the estate of their deceased parent if they can demonstrate that their parent had a moral obligation to provide for them and that the provision they receive under the Will or the rules of intestacy, if any, is not adequate for their proper maintenance and support.

What does the process of a family provision claim involve?

Where a family provision claim is made, the Court will generally make an order that the parties participate in mediation in an attempt to resolve the dispute by agreement and avoid the need for costly and lengthy litigation. If the parties are unable to resolve the dispute during the mediation process, the matter will proceed to be dealt with before the Court.

The Court will typically order that notice of the application must be served on the beneficiaries named in the Will or entitled under the rules of intestacy. Further, the Court will often make an order that the beneficiaries have the right to file and serve a position statement outlining their position with respect to the claim and to participate in any mediation conducted in relation to the dispute.

How does the Court determine whether a family provision order should be made?

In assessing a family provision claim, the Court cannot simply disregard the Testator’s Will and provide for what is considered to be a fair outcome in the circumstances. Instead, the Act stipulates a range of factors that the Court must take into account when determining the amount of provision to be made by a family provision order. Firstly, the Court must consider the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person. Importantly, the ‘moral duty’ approach is not a static concept but instead involves consideration of contemporary community standards and expectations of what is appropriate.

Next, the Court will consider the degree to which the distribution of the estate fails to make adequate provision for the proper maintenance and support of the eligible person. To determine what constitutes ‘proper maintenance’ in any given case, the Court will place itself in the position of the Testator and consider what provision, if any, ought to have been made in the circumstances of the case, treating the Testator as wise and just.

Finally, where the child seeking further provision from their parent’s estate is over the age of eighteen years, the Court must consider the degree to which the eligible person is incapable, by reasonable means, of adequately providing for their own proper maintenance and support.

There are a range of other factors that the court may consider in determining whether the Testator had a moral duty to provide their child and that the provision they receive, if any, is inadequate for their proper maintenance and support. These factors include:

1. The nature of the relationship between the child and their deceased parent;
2. Any obligations or responsibilities for the deceased parent to provide for the child;
3. The size and nature of the estate including any liabilities the estate may be subject to;
4. The financial resources, including the earning capacity, and financial need of the child as well as the resources and needs of any other eligible person;
5. Any physical or intellectual disability of the child or any other beneficiary of the estate;
6. The age of the child;
7. Any contribution of the child to building up the value of the estate or to the welfare of the deceased;
8. Any benefit previously given by the deceased to the child or to any other eligible person to whom they owed a moral duty;
9. Whether the child was being maintained by their deceased parent before their death;
10. The liability of any other person to maintain the child;
11. The character and conduct of the child; and
12. The effect that a family provision order would have on the benefit received from the deceased’s estate by the other named beneficiaries or those entitled to benefit under the rules of intestacy.

Are the legal fees covered by the estate?

In most cases, the legal costs incurred in defending a family provision claim will be paid by the estate, provided the Executor has acted reasonably in the circumstances. Although the Executor must seek to uphold the terms of the Will, they must also demonstrate a willingness to negotiate a settlement to avoid costly and lengthy litigation and act in the best interests of the beneficiaries, noting that the costs involved in defending a family provision claim will diminish the value of the estate.

On the contrary, the claimant will be responsible for their own costs when making a claim for further provision from a deceased estate. It is often the case that where a family provision claim is settled at mediation, the parties agree for the claimant’s costs, whether partly or wholly, to be borne by the estate.

Where a family provision claim proceeds to Court and the claimant receives a successful outcome, the Court may order that part or all of the claimants costs should be paid by the estate. These costs are usually calculated by applying the relevant Court scale of costs applicable to the matter, and generally include those costs which are reasonably incurred and of a reasonable amount. Importantly, an award of costs is generally insufficient to cover the whole of the legal costs incurred, meaning the claimant will be personally liable to pay the balance.

In circumstances where the claimant is unsuccessful in their claim for further provision, the Court may order the claimant to pay their own costs as well as those incurred by the other parties to the proceedings. Importantly, the Court’s assessment of costs will depend largely on the conduct of the parties throughout the course of the proceedings, including the validity of the claim and the parties’ willingness to compromise.