Eligibility in Victoria: ‘Responsibility to Provide’

Unlike other Australian states, Victoria does not have a predetermined list of eligible applicants for the purposes of family provision claims.

In Victoria, while a deceased person still has a moral duty to provide for a surviving spouse or child who can demonstrate a need for provision, that moral duty is not restricted to family members, but embraces claimants who, although not related to the deceased, can still demonstrate a moral claim to the estate. 

The Administration and Probate Act (Vic) 1958 outlines the following considerations to determine whether a deceased person had a responsibility to provide for an applicant:

1. Any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
2. Any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
3. The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
4. The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
5. Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
6. The age of the applicant;
7. 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;
8. Any benefits previously given by the deceased person to any applicant or to any beneficiary;
9. Whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
10. The liability of any other person to maintain the applicant;
11. The character and conduct of the applicant or any other person; and/or
12. Any other matter the Court considers relevant.

What does all this mean? It means there are no hard and fast rules and the court will take the nuances of every individual case into account. 

Now, you may say “doesn’t everyone need money?” Well, most of us do, yes. But not all. And it’s relative. For example, you may have a mortgage but a good job and you’re in good health. Your sister on the other hand may have a mortgage but she’s a single mother earning a low income and your deceased parent only left $75,000 behind. This is where a delicate balancing exercise arises.

In most cases if you have a mortgage or some other debt you can demonstrate that you have need, but you also have to consider the needs of your competitors. How do you do that? Well if you know roughly what their financial position is you can estimate the strength of a potential family provision claim by weighing up what the will says, what is in the estate, what your competitors need and what you need.

This is the part where an experienced lawyer is particularly important.  We suggest you book a free 15-minute phone consult if you have any questions about your need for provision.