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:

  1. a person who was the spouseor domestic partner of the deceased at the time of the deceased's death;
  2. 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);
  3. A grandchild in some circumstances;
  4. 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—
      • not taken those proceedings; or
      • commenced but not finalised those proceedings; and
    3. 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.

About the Author

Melissa Passarelli

Associate
A litigation and insolvency lawyer with experience across a variety of areas of law, Melissa’s unique experience provides a valuable offering to her team in providing sound advice and assistance.

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