A Part IV claim — sometimes called a family provision claim or testator’s family maintenance (TFM) claim — is a claim under Part IV of the Administration and Probate Act 1958 (Vic) that a deceased person’s will (or the intestacy rules) did not make adequate provision for the proper maintenance and support of an eligible person.
Part IV claims are one of the most contested and misunderstood areas of estate law in Victoria. This guide explains the essentials. For advice on a specific matter, see our Contested Wills & Part IV Claims and Probate & Deceased Estates pages.
What a Part IV claim is
A Part IV claim asks the Supreme Court of Victoria (or in some cases the County Court) to order that further provision be made from a deceased person’s estate to an eligible person, on the basis that the deceased had a moral duty to provide for that person and did not adequately do so.
The order does not rewrite the will as a matter of preference. The threshold questions are whether the person is eligible and whether adequate provision was made.
Who may be eligible
The Act sets out categories of “eligible person” who may bring a claim. These include, broadly:
- a spouse or domestic partner of the deceased at the time of death;
- a child of the deceased (including an adopted child, and in some cases a stepchild);
- a former spouse or former domestic partner who would have been able to bring family law proceedings but was not (in defined circumstances);
- certain registered caring partners and members of the household;
- a grandchild who was wholly or partly maintained by the deceased at the time of death.
Eligibility is a threshold. Being eligible does not mean a claim will succeed — the applicant must still show that adequate provision was not made.
Adequate provision
The court asks two related questions:
- Did the deceased have a moral duty to provide for the applicant?
- If so, does the provision made under the will (or intestacy) fall short of what the deceased ought to have provided for the applicant’s proper maintenance and support?
“Proper maintenance and support” is not confined to bare subsistence — it is assessed by reference to community standards, the size of the estate, the applicant’s circumstances and the competing claims of other beneficiaries.
Factors the court considers
Section 91A of the Act lists the matters the court must consider, including:
- the nature of the relationship between the applicant and the deceased;
- any obligations or responsibilities of the deceased to the applicant and beneficiaries;
- the size and nature of the estate;
- the financial resources (including earning capacity) and financial needs of the applicant and beneficiaries;
- the applicant’s age, physical and mental health;
- any contribution by the applicant to the deceased’s estate or welfare;
- benefits previously given by the deceased to the applicant or beneficiaries;
- the character and conduct of the applicant;
- any liability of the deceased to support any other person.
Evidence commonly required
Applicants (and executors defending a claim) typically need:
- an affidavit setting out the relationship with the deceased;
- full details of the applicant’s assets, liabilities, income and expenses;
- medical evidence where health is relied on;
- evidence of any contribution made to the deceased’s welfare or estate;
- details of gifts or advances made during the deceased’s lifetime.
Time limits
A Part IV claim must generally be commenced within six months of the date of the grant of probate or letters of administration (section 99). The court has a limited discretion to extend time, but that is not guaranteed and should not be relied upon. Executors are usually reluctant to distribute the estate until this period has passed.
Mediation and settlement
Most Part IV proceedings are referred to mediation. A very high proportion resolve at or before mediation. Reasons include the emotional and financial cost of a contested hearing, the risk that costs may be borne personally by the losing party in some circumstances, and the desire to preserve family relationships.
Possible outcomes
A successful claim can result in:
- a lump sum from the estate;
- a life interest in property;
- a right of residence;
- a specific asset or portfolio;
- a combination of the above.
The court will only make an order to the extent needed for the applicant’s proper maintenance and support. Costs are within the court’s discretion — the old assumption that costs would always come out of the estate no longer applies.
Defending a claim
Executors have a duty to defend the estate on behalf of the beneficiaries. That does not mean fighting every claim to the end. It means giving considered advice on prospects, settlement, and cost risk, and taking a commercial view of resolution.
Executor considerations
Executors should generally:
- not distribute the estate before the six-month claim period has passed, unless appropriate indemnities and advice are in place;
- respond promptly to any claim or foreshadowed claim;
- keep beneficiaries reasonably informed;
- obtain legal advice before agreeing to any compromise.
Why prompt advice matters
Time limits are strict, and the cost of a Part IV dispute can be significant. Whether you may be an eligible person considering a claim, or an executor served with one, prompt advice is essential.
Holt & Macdonald acts for both claimants and executors in Part IV matters across Melbourne’s eastern suburbs and the wider Victorian jurisdiction. See our Contested Wills & Part IV Claims page for how we can assist.
