Testator’s Family Maintenance: Critical Evaluation of Eligibility and Procedure

Running head: CIVIL LAW
Civil Law
Name of the Student
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1CIVIL LAW
Table of Contents
Introduction................................................................................................................................2
The Administration and Probate Act 1958.................................................................................2
Justice Legislation Amendment (Succession and Surrogacy) Act, 2014...................................3
Eligible persons to claim for the Testator’s Family Maintenance.............................................3
Discretion of the Court to allow Testator’s Family Maintenance..............................................4
Brimelow v Alampi Case............................................................................................................5
Limitation on the eligibility to claim Testator’s Family Maintenance......................................5
Procedure to grant Testator’s Family Maintenance...................................................................6
Conclusion..................................................................................................................................7
References..................................................................................................................................8

2CIVIL LAW
Introduction
As put forwarded by the Victorian Law Reforms Commission, 36328 deaths were
recorded in Victoria in 2012, out of which many of the deceased died without placing a valid
will for their heirs all beneficiaries to take over their properties1. In such circumstances, the
Administration and Probate Act comes into the picture that helps to dispose a property that
lacks testamentary disposition. The intestacy law of Victoria is complex and orphan step out
of its jurisdiction. Therefore, the National Committee for Uniform Succession Laws
recommended that a person who can prove his dependency on the deceased, intestate or not,
would be eligible to apply for a redistribution of the estate in their favour2. Even though the
2015 legislative amendment to part IV of the Administration and Probate Act 1958 (Vic) has
put significant restriction on the eligibility of the claimants or beneficiaries, the courts are
looking thoroughly into the type of dependency of the claimant before align a redistribution
of the estate of the deceased.
The Administration and Probate Act 1958
The amendment to part IV of the Administration and Probate Act 1958 (Vic) in 2015
has put forwarded restriction as to the eligibility of the person claiming to be eligible to be
taken care of by the intestate deceased person. On the other hand, as argued by the National
Committee for Uniform Succession Laws has suggested that a person, who was entitled to be
taken care of by an intestate deceased, may claim to a court of law to redistribute such
intestate estate in their favour3. In July 1998, the Administration and Probate Act included a
provision that made appropriate people eligible to claim a Testator’s Family Maintenance
1 "5. Intestacy | Victorian Law Reform Commission", Lawreform.Vic.Gov.Au (Webpage, 2019)
<https://www.lawreform.vic.gov.au/content/5-intestacy-0>.
2 Baker, Christopher, and Michael Gilding. "Inheritance in Australia: family and charitable distributions from
personal estates." (2011) 46.3 Australian Journal of Social Issues 273-289.
3 "National Committee For Uniform Succession Laws | Victorian Law Reform
Commission", Lawreform.Vic.Gov.Au(Webpage, 2019) <https://www.lawreform.vic.gov.au/content/national-
committee-uniform-succession-laws-0>.