If you think you have been unfairly left out of a Will, you can contest it by initiating a claim for further provision under a Will (also known as a ‘Part IV Claim’). In this case, you are asking the Court to make an order granting you further provision than that which the original Will writer left you under the Will. If you believe that the person who made the Will was not mentally fit to sign a Will at the time they did, or a third party pressured the Will writer into changing their Will contrary to their wishes, this is a separate matter to a Part IV Claim. To resolve this issue, you can make an application to the court seeking the Will claims be declared invalid.
Who is Eligible to Make a Part IV Claim?
There are only certain individuals who the court considers are ‘eligible’ under the Act to make a Part IV claim. These individuals include;
(a) A spouse or Domestic partner of the deceased at the time of the deceased’s death
(b) A child or step-child of the deceased
(c) A person who for a substantial period during the deceased’s life believed the deceased was his or her parent and was treated by the deceased as his or her natural child
(d) A former spouse or domestic partner of the deceased (if a property settlement was not reached with the deceased following their separation
(e) A registered caring partner of the deceased
(f) A grand-child of the deceased
(g) A member of the household of which the deceased was (or had been in the past and would have likely been in the near future) also a member
How do Part IV Claims Work?
Part IV of the Act places a legal and moral duty on the testator of the Will claims to support people who are dependent on the testator or may have a strong moral claim on the testator for financial support, such as those mentioned above. As such, this section restricts what a person can do with their Will.
In determining whether or not to make further provision for a person making a Part IV Claim, the court will consider various factors which include, but are not limited to;
– The nature and length of the relationship between the person and the deceased;
– The moral obligations of the deceased and the person;
– The size and nature of the estate relative to the provision made under the Will for the person;
– The financial resources of the person at the time of the claim, including earning capacity, and any future financial needs of the person;
– Any physical, mental, or intellectual disability of the person
Seek Professional Advice
It is important that you get legal advice within 6 months from the date that a grant of probate is issued by the court on behalf of the deceased estate. If you do not commence a Part IV Application within this timeframe or put the executor of the deceased estate on notice that you intend to commence a Part IV claim, the executor of the deceased estate is entitled to distribute the estate to all the beneficiaries under the Will, and not be held personally liable for any shortfall in funds available to satisfy your Part IV Claim. As such, although you may be eligible and have strong grounds for a Part IV Claim, there may be no funds left in the deceased estate to make further provision. If you believe you’ve been unfairly treated under a Will, and received an unexpectedly small inheritance, you should speak to a lawyer as soon as possible to assess the potential success of a Part IV Claim.
Prompt Legal Services is a team of experienced lawyers for will, servicing families across Victoria. We focus on negotiating a successful resolution for both parties, letting them move on with their lives with peace of mind. We pride ourselves on achieving a just and equitable result for our clients, whilst minimizing legal expenses to the greatest extent possible.
Very recently, Prompt Legal Services represented the executor in a high-Profile large estate where the deceased had five children. One of the children lived overseas where Prompt Legal Services was able to negotiate a cheap settlement to remove her Part IV claim, and reduce the executor’s legal expenses. Another child went on to full court hearing where we were able to successfully represent the executor to achieve a fair result, and limit the amount of further provision granted to the child.
If you would like to discuss the prospects of success of your Part IV Claim, you can give us a call on (03) 9379 0877 or email us at info@promptlegalservices.com.au for a free initial consultation.