Testator’s family maintenance claim
Despite any contrary intention of a will maker, under section 91(1) of the Administration and Probate Act 1958 (Vic), the Supreme Court has power to order that financial provision be made out of the estate of a deceased person for the ‘proper maintenance and support’ of a person ‘for whom he or she had responsibility to make provision’. The responsibility which is considered is a moral responsibility.
The freedom to make a will on whatever terms one wishes is limited by the overriding consideration that a person must discharge his or her moral responsibility to provide for one’s spouse, children or others [Grey v Harrison (1997) 2 VR 359]. This moral obligation may extend to stepchildren. The court may order that the estate be distributed as the court deems appropriate in the circumstances.
Pointon Partners have recently acted in the following case:
- Claim made by stepson of the deceased: a small gift was provided to the applicant under the deceased’s will and the balance of the estate bequeathed to the deceased’s maternal son. The applicant’s father left his entire estate to the deceased and the applicant had not challenged his father’s will. The matter was settled at mediation to the satisfaction of the applicant.
Other recent applications in respect of testator’s family maintenance claims have been made in:
- Amicucci & Ors v Di Tullio  – three daughters of the testator;
- Youn v Frank & Anor  – widow;
- Whitehead v State Trustees Limited (No2)  – intimate female companion of deceased and her (whose father was another man);
- Tavra v Petelin  – only adult son who was permanently and significantly injured;
- Bruce v Matthews  –disabled son;
- Allen v Huntley  – long-term domestic partner of the deceased;
- Estre v McDonald & Ors  VSC 62 – same sex lover; and
- McCann v Ward & Anor  VSC 63 – stepdaughter.
When determining whether the deceased had a responsibility to make provision for a person and whether the proposed distribution of the estate, as contemplated under the deceased’s will or rules of intestacy, makes adequate provision for the proper maintenance and support of that person the court must have regard to the following matters (section 91(4)):
- Any family or other relationship between the deceased and the applicant, including the nature of the relationship and where applicable the length of the relationship;
- Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
- The size and nature of the estate of the deceased person;
- The financial resources of the applicant and the financial needs of the applicant;
- Age, sex and health of the applicant;
- If the applicant received any gift, transfer or other provision made by the deceased during their life;
- Any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
- Whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the court considers relevant, the extent to which and the basis upon which the deceased has assumed that responsibility;
- The liability of any other person to maintain the applicant;
- The character and conduct of the applicant; and
- Any other matter the court considers relevant.
A testator’s family maintenance claim in Victoria must be made within six months of the grant of probate or letters of administration. In some circumstances, the court may give an extension of time so long as the estate has not been completely administered. Recent cases for an extension have included:
- Leggett v Jansen  – application allowed and discretion exercised in favour of granting the extension of time. The applicant demonstrated firstly there was an arguable case, and secondly the explanation for the delay did not markedly outweigh the grant of an extension of time; and
- Stanley v State Trustees Limited  – application refused as the applicant had made a conscious decision not to issue proceedings within the specified time. In addition, the applicant’s case was weak, but not hopeless, however the applicant could not demonstrate a reasonable explanation of the failure to issue within the relevant time.
Pointon Partners can assist in providing strategies to avoid family maintenance claims and also provide advice in respect of a claim that you may have.