Early last year I write on disproportionality in family provision estate litigation.

In October this year the Victorian Law Reform Commission tabled its final report to parliament with recommendations on various succession law amendments. Two of these revolved around tightening up who can claim under family provision laws against estates and who has to pay for such claims.

Previously in Victoria anyone could basically make a claim against an estate. Most claims were mediated before getting to court and in some cases that meant benefits were bestowed upon people who may not have been successful at court. Part of the reasoning was that the costs of going to court had always been borne by the estate notwithstanding the success or otherwise of the claimant. This was an incentive to benefit them in mediation rather than go to court. One submission to the Commission “Plaintiffs can expect solicitor-client costs from the estate despite being unsuccessful at trial, which has a chilling effect on mediations and encourages executors to settle even unmeritorious claims.”

This is a part of the final recommendation to parliament:

That the Administration and Probate Act (amongst others) be amended to set out a non-exhaustive list of the types of costs orders that the court may make, including:

(i) an order that each party bear their own costs;

(ii) an order that the estate pay the costs of an applicant, whether successful or unsuccessful, on any basis and to any extent;

(iii) an order that an applicant pay the costs of a personal representative, on any basis and to any extent..

Part (iii) may have the most impact to de frivolous claimants!

Another part of this puzzle in Victoria is that, currently, it has a different approach to that of all other Australian jurisdictions as to who is eligible to make a claim. Other states and territories have a list based approach limiting those who may apply. Victoria is criteria-based: which essentially allows anyone who can prove a family like type of relationship exists without any official family link. This did not necessarily cause any problems when decided upon in a court, as the court properly considered the circumstances involved. However, as previously noted, the court seldom gets these claims brought before the court; rather they are settled at mediation and can encourage unworthy claimants.

The final recommendation of the commission (quoted below) was to adopt the sole list approach as NSW does, and also to include Step-Children:

Section 91(1) of the Administration and Probate Act 1958 (Vic) should be repealed and replaced with provisions in the following terms:

The following are eligible persons who may apply to the court for a family provision order in respect of the estate of a deceased person:

(a) a person who was the wife or husband of the deceased person at the time of the deceased person’s death

(b) a person with whom the deceased person was living in a registrable domestic relationship or registered domestic relationship at the time of the deceased person’s death

(c) a child of the deceased person

(d) a former wife or husband of the deceased person

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or any other particular time, a member of the household of which the deceased person was a member

(f) a person with whom the deceased person was living in a registrable caring relationship or registered caring relationship

(g) a stepchild of the deceased person

For more information and the full report please refer to:

All is nearly completed with SA Fraud attempt

Readers may recall the attempted fraud on the Australian estate of a deceased South African who had various Wills in South Africa and the United Kingdom and no living relatives.  The UK court has now issued a full Grant of Administration with Wills Annexed to a representative of one of the final charity beneficiaries. This is now being resealed in the Supreme Court in New South Wales at the same time as the revocation of the original Grant of Administration from the NSW Supreme Court occurs. Once the reseal is issued the distribution to the UK beneficiaries of almost AU$4m can proceed safely.

PUBLICATION: ENVOY – The newsletter of The New Zealand Institute of Legal Executives
DATE: December 2013
AUTHOR: Andrew Johnstone, APEARS, Sydney, Australia

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