"Responsibility" to Provide: Family Provision Claims in Victoria

Family provision legislation was introduced in Victoria in 1906 to allow the court to order provision from the estate of a deceased person whose will did not make adequate provision for the proper maintenance and support of a person for whom the deceased had a moral duty to provide. The first version of the legislation allowed only widows and children to claim; it underwent little reform until 1997 when a major amendment to the Administration and Probate Act 1958 (Vic) removed the statutory list of eligible applicants, and replaced it with the jurisdictional question, ‘Did the deceased have a responsibility to provide?’ This in theory means that ‘anyone’ can make a claim, including those without a close family relationship with the deceased. This article examines a selection of judgments handed down under the new provisions, with the aim of showing the range of applicants who are now eligible to apply and examining the particular features of their relationship with the deceased that determined the success of their claims. This is in light of the current Victorian Law Reform Commission Inquiry into Succession Law that questions whether eligibility should be limited to certain types of relationship, and whether costs should continue to be paid out of the estate.