making a claim known as a part IV claim against a deceased estate

There is a wide range of circumstances in which a claim may be brought against a deceased estate under Part IV of the Administration and Probate Act 1958 (Vic) (the Act).  The most common scenarios include:

1.         The deceased’s spouse or domestic partner has been excluded from the Estate or left without adequate financial security;

2.         The deceased’s child (including adult children) has been wholly excluded or have received inadequate provision, particularly where the                    child has a disability and the deceased had an ongoing obligation to make proper provision for the child’s maintenance and support;

3.         The deceased’s stepchild or another person, who was treated by the deceased as a child and dependent upon the deceased, has been                        excluded; and

4.         The deceased’s grandchild or a member of the deceased’s household, who was dependent upon the deceased, has been excluded.

Section 90 of the Act sets out additional categories of all other persons who are eligible to bring a claim under Part IV of the Act.

In practical terms, a Part IV claim is an application by a person seeking further or different provision from the Estate (what is left them to them in a Will),  for their proper maintenance and support, on the basis that the Estate (or where applicable, the rules of intestacy), fails to make adequate provision for them.  Typically, the applicant contends that the deceased had a responsibility to make adequate provision but did not do so.

A claim brought under Part IV is subject to strict statutory time limits and detailed procedural requirements.  Some of the significant steps of a Part IV claim include the following:

5.         Commencing the Proceeding

An applicant must within six months from the date of the Grant of Representation initiate the proceeding), by way of an Originating Motion, which is field with the Court and then served on the Executor or Administrator.

In response to the above service, the Executor or Administrator ordinarily files a Notice of Appearance confirming their participation in the proceeding.  If the Executor or Administrator do not file a response within the time required by the Court, this may expose the Estate to procedural consequences.

6.         Position Statements

After commencement of the proceeding, the parties involved will each prepare their own Position Statement.  The Position Statements will set out the following information:

6.1             the orders sought by the claimant (i.e. what provision is requested from the Estate); and

6.2             the parties current and future needs, commonly including financial circumstances and, where relevant, medical requirements.

          This document helps define the scope of the claim and frames any issues the parties will need to consider.

            This assists in clarifying what is truly in dispute and what each parties’ financial needs may be and ensures the Court has an accurate                           picture of the Estate and the competing claims upon it.

7.         Mediation: attempting to resolve the claim early

Part IV matters commonly proceed to mediation.  The purpose of having a mediation is to provide the parties with an opportunity to negotiate and attempt to resolve the claim before the proceeding progresses further through the Court system.  Mediation costs are often shared between the parties, though the specific arrangements may vary depending on the circumstances and any directions made by the Court.  It is also a way of saving further legal costs.

8.         If private mediation fails: trial

Most Part IV claims are resolved by  mediation.  However, if the claim has not resolved by mediation, it will progress further through the Court to trial, which is where the proceeding is brought in front of a Judge or a Judicial Registrar.  The Judge or Judicial Registrar will review the claim and any evidence submitted to support the relevant circumstances of all parties involved and will then consider whether the orders sought by the claimant should be granted.

9.         Resolution of proceeds: Terms of Settlement

When the parties have reached a settlement, or agreement, Terms of Settlement are generally prepared and executed by all affected parties.  The Terms of Settlement set out:

9.1             the agreed resolution of the claim;

9.2             the entitlement of each party to receive provision from the Estate;

9.3             the timeframe of when each party will receive their entitlement;

9.4             any conditions precedent governing when and on what basis each party will receive their entitlement from the Estate;

9.5             the discontinuance of the proceeding/claim; and

9.6             mutual releases between the parties in favour of the Estate.

Terms of Settlement are sent to the Court for their approval.

If you require advice or assistance in making a Part IV claim under the Administration and Probate Act 1958 (Vic) please don’t hesitate to contact our office on (03) 9707 1155 or via email at admin@wslegal.com.au