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The new legislation for estate claims commences 1 January 2015

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By Andrea Olsson, Senior Associate, MST Lawyers

The new provisions under Part IV of the Administration and Probate Act 1958 Victoria for claims against deceased estates commence on 1 January 2015. The most important change is the new set categories of classes of people who can claim against an estate. There are two tiers of “eligible persons” who can claim against estates of people who die on or after 1 January 2015.

The first tier of people who can make a claim are :

  • a spouse or domestic partner;
  • a child or stepchild or persons who believed they were a child of the deceased;
  • a former spouse or domestic partner who have not commenced family law proceedings.

The second tier of eligible persons are those who must show that they were wholly or partly dependent on the deceased for their proper maintenance and support before they can claim; 

  • a grandchild or registered caring partner, or a spouse or domestic partner of a child of the deceased (if the child dies within one year of the deceased’s death) and a member of the deceased’s household.

Any claimant not fitting within any of these categories cannot claim.

The current factors considered by the Court are no longer mandatory, only persuasive. Greater emphasis is to be placed on evidence of the deceased’s reasons for not providing for the claimant.

There is also greater emphasis on the effect that a Court order would have on the amounts received by the beneficiaries of the estate.

It will be an interesting year ahead to see how the Court will interpret the new legislation.

If you have been concerned in the past about someone challenging your Will and Estate you should contact our Wills and Estates team to discuss reviewing your Will.

For further information, please contact our Wills & Estates team by email will-estates@mst.com.au or by telephone +61 85400200.