Wills and the Administration of Estates: A Critical Evaluation

Demyana Nawar
Student Numbr: 4517007
Wills and the administration of estates
Critical Evaluation

I. Introduction
Part Iv of the Administrative and Probate Act 1958 (Vic), administers provisions for the
procedures for an individual who wants to bring a claim against the estate of the deceased
person. Previously, the old law provided that any person could bring such a claim if they feel
the deceased has a responsibility to provide for them. This is one of the most litigated areas in
succession law today.
Historically, this process has changed several times from 1958-2015. Previously a non-
restrictive approach was formed, allowing any person to be able to bring such a claim. This
encouraged unprincipled claims, disregarding the fundamental concept of the testamentary
freedom, that any person could dispute the will, even on occasion, contradicting the intention
of the testator. The 2015 amendments introduced new guidelines to what the court must have
regard to when determining the outcome of applications, forming a more restrictive approach
allowing only “eligible persons” to which the deceased has a moral obligation as well as the
the claimants dependency of “maintenance and support” from the deceased. The new
amendment encourages the elimination of unprincipled, opportunistic claims, however does it
really resolve the problems of the “old law”(1997)? This paper will critically evaluates the
effects and consequences of the new amendments made to Part IV of the Administrative and
Probate Act 1958 (vic) and provides an outline of the brief history behind the “new law”(post
2015).
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II History
Up until 20 July 1998, Victoria had the most restrictive of the testator family maintenance
legislation in Victoria, allowing only widows, widowers and children of the deceased to make
a family provision claim1. In 1997 the attorney general spoke of the laws prior to 1998 being
quite restrictive, addressing the need for change. There, the attorney general made reference
to the need to enable a wider category of persons to make family provision claims2. This
process has changed significantly. Since 1988 eligibility for a testators family maintenance
claim was broadly provided in the s 91, that any person can make an application for provision
from the estate if such person can demonstrate that the deceased had the responsibility to
providing them with proper maintenance and support.3. However, this aspect of the law had
been criticized a lot by legal fraternity ever since it was introduced in 1998. The concerns of
the legal threaten people mainly on the basis of the fact that there was no set category of
people who are entitled for making testator family maintenance claim4. The width of this
legislation had been questioned by politicians and judges as an increasing number of claims
were commenced by more remote, or non-relatives, resulting in a high level of costs being
incurred and apparent disregard of the freedom of testation5.
1 K Collins, Phillips R, Sparke C, ‘Relevance of precdecent, community views and
interpretation for testators family maintence’ (March 2017) Wills Probate & Administration
3.
2 Ibid 4.
3Blair v Blair (2004) 10 VR 69.
4Lee v Hearn (2005) 11 VR 270.
5 Collins, Phillips and Sparke, above n 1.
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