The importance of reviewing your Will to identify who may be eligible to make a claim against your estate

By Natalie Lewis, Solicitor, and Paul Watkins, Principal

In Victoria applications for further provision from a deceased estate are governed by the Administration and Probate Act 1958 (Vic) (‘the Act’). Persons eligible to make an application include:

• The deceased’s spouse or de facto partner;
• A child of the deceased including a step-child, adopted child and a person who believed they were the deceased’s natural child and were treated as such by the deceased; and
• The deceased’s former spouse or de facto partner in circumstances where family law proceedings had not been issued or finalised because of the deceased’s death.  

Grandchildren, registered caring partners, members of the deceased’s household and spouses or domestic partners of a child of the deceased who died within one year of the deceased’s death, are also eligible to make an application for further provision.  However, individuals falling within these classes must show that they were wholly or partly dependent on the deceased for their proper maintenance and support.  

The Act also sets out a number of factors the court may consider in reaching its decision, including, but not being limited to, the nature of the deceased’s relationship with the applicant, the financial and personal circumstances of the applicant, the degree to which the applicant was financially dependent on the deceased and the extent, if any, to which the applicant contributed towards the deceased’s estate and welfare. 

 

Application by a member of the deceased’s household

The eligibility criteria were introduced into the Act in 2014 following the enactment of the Justice Amendment (Succession and Surrogacy) Act 2014 (Vic).  Accordingly, they are being developed on a case by case basis when family provision applications proceed to court.

One such case is the recent Victorian Supreme Court case of Re Meuleman; Quminakelo v Amidzic [2020] VSC 376.  The Plaintiff in this case had become close friends with the deceased who was an elderly widow who lived on her own with no close family.  The Plaintiff and her son commenced living with the deceased in October 2007.  The Plaintiff kept her rental accommodation which she attended a couple of nights a week for essential tasks.

The Plaintiff provided personal care and support to the deceased, who in turn financially contributed towards the Plaintiff’s expenses including her rent, daily expenses, school and sports fees, overseas flight and her out of pocket medical expenses for cancer treatment.

These arrangements continued until the deceased was required to move into a residential aged care facility in June 2013 because she could no longer safely live at home due to her dementia.  The Plaintiff continued to visit the deceased and provided her with personal care and support.  Further, in July 2013 the Plaintiff became the deceased’s administrator under a VCAT order.

The deceased allegedly promised the Plaintiff that she would be well looked after when the deceased died.  The deceased died in April 2017.  Under her Will she left her estate to a number of charities and made no provision for the Plaintiff or the Plaintiff’s son.    

The Plaintiff sought an order for provision from the estate on the basis that she was a member of the deceased’s household. 

 

Eligibility criteria

In considering the matter as a summary dismissal application, Englefield JR held that membership of a household is a flexible concept.  Two or more people can be members of a household even if they share multiple households or one of them is divided between households, for example, as a result of parenting arrangements.

However, there must be some form of continuity or permanence of cohabitation even if there are periods of temporary separations.  Further, there must be a relationship underpinning the cohabitation.  The hallmarks of such a relationship include:

• A bond or unity – a concern with and interest in each other’s lives;
• An intimate connection with another member of the household;
• A willingness to permit return, or to return, when faced with vicissitudes, turbulence or failed attempts at living independently;
• Mutual support, community of resources, voluntary restraint on personal freedom for the sake of the other; and
• A bond that must be quasi-familial or that of a friendship rather than that of landlord and boarder or master and servant.

It was held that such relationship existed between the deceased and the Plaintiff whilst they lived together from October 2007 to June 2013.  Further, provided the Plaintiff continued to care for, and support, the deceased, it was possible that she remained a member of the household after the deceased moved into the residential aged care facility.  This is because such move was involuntary or ‘forced’ as a result of the deceased’s illness; a situation analogous to a couple who remains married or in a relationship despite one party moving into aged care or palliative care due to illness. 

 

Dependence  

Engelfield JR confirmed that dependence for the purposes of the Act means financial or material dependence.  Emotional dependence on its own is insufficient unless there are special circumstances, for example, where a young child or person with a disability needs such support in order to flourish. 

Whilst the Plaintiff had clearly depended on the deceased for financial assistance whilst they lived together until October 2013, thereby satisfying the eligibility criteria under the Act, there was no evidence that such assistance continued beyond this point.

For the purposes of allocating an amount to be paid to the applicant from the deceased’s estate, the court is statutorily required to look at the degree to which the applicant depended on the deceased at the time of the deceased’s death. 

As the Plaintiff did not depend on the deceased for financial assistance at the time of death, the court could not grant relief and accordingly, the application was dismissed.     

Further, the Plaintiff could not rely on the deceased’s promises that she would be well provided for when the deceased died, as evidence of dependence.  Promises of this nature are relevant to the separate legal question whether the deceased had a moral duty to properly maintain and support the applicant.  Further, if promises of this type are detrimentally relied upon they may found an action in equitable estoppel which is a separate cause of action altogether.   

 

If you have any questions concerning eligibility to apply for further provision from an estate or wish to discuss any of the issues raised in this article, please feel free to contact one of our Estate Planning and Deceased Estate lawyers on (03) 8540 0200.