Your last Will and Testament is arguably the most important document you can leave behind. Unfortunately, many Willmakers fear that the only legacy they will leave behind is a legal battle over their Estate. To prevent this, they felt they had to leave assets to people they didn’t trust, or people they believe were underserving of receiving a portion of their Estate, such as children who have neglected them or who they have not seen for years.

On 21 October 2014, the Justice Legislation Amendment (Success and Surrogacy) Act 2014 (Vic) (“the new Act”) was enacted, which made significant changes to Part VI of the Administration and Probate Act 1958 (Vic) (“the A&P Act”). Prior to these amendments, the Courts had very wide powers to amend Wills, notwithstanding the express wishes of the deceased. This caused many to think, what’s the point in having a Will?

The amendments are designed to give people greater freedom when drafting their Wills, and limit the number of Testator’s Family Maintenance claims (“TFM claims”) that can be brought against someone’s Estate, by requiring the Courts to give greater consideration to the intentions of the Willmaker.

Prior to the new Act, people could bring TFM claims in the following circumstances:

  1. If they could show that the deceased had a “responsibility to provide” them with maintenance; and
  2. If the individual was left without “adequate” or “proper” maintenance. Determining the appropriate amount of provision depended on the factual circumstances of each case.

The new Act narrows the scope of prospective claimants. Pursuant to the new Act, only the following categories of people are eligible to bring a TFM claim:

  1. The spouse or domestic partner of the deceased at the time of the deceased’s death;
  2. A child of the deceased, including a stepchild or adopted child;
  3. A person who believed the deceased was his/her parent;
  4. A former spouse or former domestic partner of the deceased;
  5. A caring partner of the deceased whose relationship with the deceased was registered under the Relationships Act 2008;
  6. A grandchild;
  7. A spouse or domestic partner of a child of the deceased if the child of the deceased dies within one year of the deceased’s death; and
  8. 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.

A person must now fall within one of the above categories to bring a TFM claim. To determine whether a TFM claim has merit, the Court must give regard to the following factors:

  1. The Will (if any); and
  2. Any evidence of the deceased's reasons for making the dispositions in the Will (if any);
  3. Any other evidence of the deceased's intentions in relation to providing for the eligible person.

This means that the contents of a Will, and any other evidence such as a letter that accompanies the Will, will take precedence over and be given more weight than, for example, that of being a blood relation.

As a result of the changes made by the new Act, we expect to see significant changes in the way the Court decides TFM claims. It is, therefore, critical to have a Will that clearly expresses your intentions and the reasons for making or not making provisions. If you have concerns of a claim that may be brought against your Estate, bequests you have or have not made in your Will and/or dispositions you have made in your lifetime, we recommend that you contact our office to obtain legal advice for your personal situation.

Please note that this article provides information that is general in nature and not a substitute for legal advice. Please contact Rudstein Kron Lawyers for more information.