Paper outlines ‘responsibility’ to provide for family members after death

Published 20 Nov 2013

Family provision claims have been around in Australia for decades, and although the legislation has certainly opened up new doors for inheritance disputes and contesting wills cases, it’s also helped many family members get the share of an estate they deserve.

Over time, there have been few changes to the actual legislation, but the attitudes toward the language of the law have seen a major shift.

To outline these changes, Samantha Renwick of Monash University’s Faculty of Law recently released a paper that discusses whether or not a deceased family member has any actual responsibility to provide for his or her family after death.

Ms Renwick looked specifically at the term “proper maintenance and support of a person for whom the deceased had a moral responsibility to provide”, with a focus on the words “proper” and “responsibility”.

“What is considered to be ‘proper’ is relative to all the circumstances of the case. The practical effect of an order is to alter the provisions of a deceased person’s will or the distribution of an estate according to the intestacy provisions of the (Victorian) Administration and Probate Act 1958,” she wrote.

Reforms to family provision claims over time

Ms Renwick discussed how the law has always been slightly controversial, but ever since 1997, when the Act saw major reforms, family provision claims have become even more complicated. Under these reforms, only widows, widowers, ex-widowers in receipt of alimony or maintenance and children of the deceased could apply for family provision.

Now, the Victorian government is looking at changing the laws once again. The Victorian Law Reform Commission is currently addressing whether the state should restrict eligibility for applying for family provision claims, and whether the cost of the proceeding should be taken care of by the state.

In New South Wales, the last change to family provision claim law occurred in 2006, when the state government passed the Succession Act. These changes included imposing a time limit on making a claim, an alteration on who is considered eligible to make a claim and changes in the way the court determines applications.

Adding to the complexity, the wording of written wills is often extremely vague. When this is coupled with the changing laws surrounding family provision claims, it may make the process seem like a daunting task.

However, getting in touch with experienced contesting wills lawyers is one way to successfully navigate the murky waters surrounding contesting wills cases.

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