A new law has been passed by the Victorian Parliament. It applies only to challenges to wills of people dying after 31 December 2014.

If you have questions about where you will stand under the new laws, you should call one of our lawyers for a free telephone consultation immediately.

Current laws allow for claims against unfair wills by people in financial need who were owed a moral duty by the deceased. Such claims are not restricted to closed categories of claimants such as children, grand-children, spouses etc.

In August 2014, the Victorian Government introduced a Bill that would have basically limited such claims to partners and children under 18.

It was slammed by critics as “cruel” and “extreme” and would have resulted in one of the harshest unfair wills laws in the western world.

Amendments proposed by the Victorian opposition stripped away some of the worst aspects of the Bill, but the amended legislation is still designed to make it harder for those that have been unfairly excluded from a will, but whether the legislation has succeeded in doing so remains to be seen.

The Act introduces a two-tiered closed system of eligible persons that can make claims.

The top tier includes the deceased’s partner, children, step-children and those treated by the deceased as children. They will need to show that the deceased person had a moral duty to provide for their adequate maintenance and support and has failed to do so.

For claims by adult children, step-children and those treated as children, the court will also have to take into account the extent to which claimants are able to provide for themselves.

The second tier of claimants includes registered carers, grand-children and members of the deceased’s household.

As well as proving they fall into one of these categories, these second-tier claimants will need to show that they were wholly or partly dependent on the deceased for their proper maintenance and support at the time of the deceased’s death.

The requirement to prove financial dependence may prevent second-tier claimants making claims where they have been excluded from the will because of a breakdown in the relationship and a change to the deceased’s will.

Those that don’t fall into an eligible category are not necessarily out in the cold. This includes non-registered carers, parents, brothers and sisters, neighbours, business partners and others.

The arbitrary nature of limiting claims by categories may be intended to result in unexpected and unjust outcomes for those whose relationships are complicated and are not easily categorised. However, there are many other avenues to be explored. Talk to us.

I wrote the above in October 2014. The Courts are still just beginning to grind their way through individual cases to define and refine what this new legislation means.
Early attention has been given to step-children and the rubbery “member of the household” category.
– Peter Connor, 1 October 2019

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