Part IV Claims: If It Goes Well, What Happens?
Written by: Gemma Cerasi | Legal Team
When a loved one passes away, the distribution of their estate is typically governed by the instructions contained within their Will.
However, not all circumstances are straightforward, and there may be times when a family member feels they have not been adequately provided for in the Will of a loved one. It is important to know that Part IV of the Administration and Probate Act 1958 offers a legal avenue for family members to seek further provision of the estate, regardless of the instructions contained in the Will of their loved one.
Why Would Someone Make A Part IV Claim?
A Part IV Claim, also known as a family provision claim, is designed to ensure that eligible family members who were financially dependent on the deceased, or believe the deceased had a strong moral obligation to provide for them, particularly when they may have cared for the deceased, are not left without adequate support.
If you find yourself in this situation, it’s best to contact your lawyer to discuss your next steps.
The Process Of A Part IV Claim
There are many steps involved in initiating a Part IV Claim, but your estate lawyers can navigate you through the entire process from start to finish!
Step One: Seek Legal Advice
Many clients feel a sense of guilt about seeking legal advice shortly after a loved one has passed.
However, the Administration and Probate Act imposes strict time limits on which a person may initiate a claim against an estate. A person has six months from the date of the Grant of Probate to commence proceedings in the County or Supreme Court of Victoria. Seeking advice from a lawyer early in this process ensures that you do not run the risk of being unable to seek further provision because you have initiated a claim outside the stipulated time limit.
Not too sure what a Grant of Probate is? Check out this previous blog we put together: What Is Probate?
Step Two: Determine Your Eligibility
At your initial appointment, we will assess whether you are considered an eligible person to initiate a Part IV Claim against the estate. The Administration and Probate Act deems the following persons as eligible to commence a Part IV Claim:
- Spouses or domestic partners: This includes legally married spouses, de facto partners, and former spouses who were financially dependent on the deceased at the time of their death.
- Children: This includes biological, adopted, stepchildren and children born out of wedlock.
- Dependents: This concerns any persons who are living in a dependent relationship with the deceased and rely on them for financial support, for instance, elderly parents or other family members.
Step Three: Determine Whether You Have Grounds For Making A Claim
In order to initiate a claim against the estate, you also need sufficient grounds to do so.
This essentially means that you have a proper basis to make a claim against the estate seeking further provision. A person has grounds to go to court for the following:
- Financial Dependence: A person might initiate a Part IV Claim if they were financially dependent on the deceased, either wholly or partly before their death. This dependence might involve a financial relationship to provide support for things such as healthcare costs or educational expenses;
- Moral Duty and Responsibility: A person might initiate a claim when they feel the deceased had a moral or legal obligation to provide for them, this is particularly relevant to children and spouses;
- Relationship To The Deceased: A person might seek further provision based on the nature of their close relationship with the deceased. This is particularly relevant where they may have provided extensive care throughout the deceased’s lifetime; and
- Financial Need For Further Provision: Financial needs is quite often the most common reason for initiating a Part IV Claim. Where a person is in financial need and the provision made for them under the Will does not adequately meet their current needs to support themselves, a Part IV Claim is often the most feasible option.
Are you part of a blended family that includes step-children and you’re thinking about making a Part IV Claim? Check out his previous blog we put together: Does My Stepchild Have A Right To Claim My Estate?
Step Four: Issuing Proceedings + Mediation
Once we have established that you are an eligible person who has grounds for a claim, we will prepare the necessary court documentation to officially make a claim against the estate on your behalf.
We will then send this documentation to the lawyer acting on behalf of the executor to officially notify them of your intention to commence court proceedings. Shortly after this, the court will issue orders requiring everyone privy to proceedings to engage in mediation.
Mediation allows the parties to attempt to resolve the dispute through an independent third party, known as a mediator, who will liaise with both parties in an attempt to find a resolution beneficial to everyone involved to keep legal and court costs to a minimum. However, if a resolution cannot be reached, the matter will be listed for a final trial at either the Country or Supreme Court, where a judge will hear evidence from all parties involved and make a change to the share that each beneficiary gets under the Will, taking into account the needs of all beneficiaries and whether they have been sufficiently provided for.
Part IV Claims Can Be The ‘Right’ Thing To Do
While it may feel disrespectful or awkward to initiate a Part IV Claim, it is important to seek legal advice about your eligibility to commence a Part IV Claim as it could be the difference between receiving a larger share of the estate that you are rightfully entitled to.
It is always important to understand your rights and to recognise when your needs might be greater than what was apportioned to you under the Will.
If on the other hand, you’re concerned about what might happen with your own Will when you pass, and you want to make sure you’re protected, check out this blog we put together: Keeping Assets Protected In Your Will
Canny Legal + Your Part IV Claim
If you are questioning whether a Part IV Claim is an appropriate avenue to go down, the first place to start would be to have a chat with our Part IV Claims lawyer.
Get in touch with one of our estate lawyers today and we can discuss your options to determine the best course of action for you.
