Frequently asked questions: Contesting a will and Part IV claims

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A Part IV claim (a family provision claim) is an application for a share or a larger share of a deceased person's estate.

Australia Family and Matrimonial

Q1: What is a Part IV claim?

A Part IV claim (also known as a family provision claim) is an application to a Court requesting a share or a larger share of a deceased person's estate. A person may make this application if they believe the deceased person had a responsibility to provide for them in their Will but failed to do so.

Q2: Who is eligible to make a Part IV claim?

Eligibility will depend on each individual circumstance, but the following people may be eligible to make a Part IV claim:

a person who was the spouseor domestic partner of the deceased at the time of the deceased's death;
a child of the deceased, (including a child adopted by the deceased, a step child of the deceased and a person who believed they were a child of the deceased);
A grandchild in some circumstances;
A former spouse or domestic partner of the deceased who at the time of the deceased's death:
1. would have been able to take proceedings under the Family Law Act 1975; and
2. has either—
3. - not taken those proceedings; or
  - commenced but not finalised those proceedings; and
1. is now prevented from taking or finalising those proceedings because of the death of the deceased.

Q3: Are there any time limits for making a Part IV claim?

Yes. A Part IV claim must be made within six months of the date of the Grant of Probate.

The Court will only allow a claim to be made out of time in very limited circumstances so it is important that the six month time limit is adhered to if possible.

Q4: What will the Court take into consideration?

In determining a Part IV claim, the Court is to have regard to many factors including:

the will and the reasons for the deceased's decisions (if known)
the nature of the relationship between the applicant and the deceased person
the size of the estate
the financial resources and needs of the applicant
contributions by the applicant to building up the estate.

Q6: Who pays the legal fees if the claim goes to Court?

An executor is usually entitled to recover all their legal fees as a result of defending a Part IV claim.

A successful claimant's legal fees are also usually paid by the estate. If the person contesting the will is unsuccessful and their claim is found to have had no merit then a Court is unlikely to find that their legal fees should be reimbursed by the estate. It is important that anyone who is thinking of making a Part IV claim obtain legal advice as to the merits of their claim prior to issuing proceedings.

Lessons

The process for contesting a will is complicated, lengthy and may require a Supreme Court proceeding. As such, you should always seek advice from a lawyer who specialises in these claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.