Claims By Non Relatives

For well over a decade prior to 1 January 2015, Victoria had the most liberal will claims regime in Australia.

In the past, Victorian claims were restricted to widows, children and (later) defactos.  Legislation effective 1 January 2015 has tried to restrict claims by non-relatives, but it still remains to be seen how effective that legislation has been. The Courts are defining and refining the meaning of the legislation as individual cases grind their way through the system.

Nowadays, anyone can claim. The major tests in Victoria have always been moral duty and financial need.

Did the deceased have a moral duty to include you in the will? This is a very subjective question and allows the Court a wide discretion.

Are you in financial need? Once again, a very elastic concept, which again allows the Court a wide discretion.

In terms of moral duty, non-relatives have not historically fared all that well.

In 2002, even prior to the new legislation effective 1 January 2015, the Victorian Supreme Court ruled out claims by non-relatives, saying that acts of selfless generosity by neighbours and friends could not mean that they could claim the deceased had a moral duty to include them in the will.

But 2009 saw the Victorian Supreme Court decision in Unger v Sanchez.

Mrs Unger was a neighbour of the deceased, who took over her care after her husband’s death in circumstances where the deceased’s closest relatives lived in Spain and were unable to help. Mrs Unger’s selfless devotion to the deceased’s care in her final years was so great that the Court viewed her as a defacto daughter and awarded her substantial provision from the deceased’s estate. Some experts say that Mrs Unger’s claim would have no chance post 1 January 2015, but that remains to be seen.

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