Family provision claims in Victoria 

When can someone challenge a Will—or an intestacy distribution—because they were not adequately provided for? 

What is a family provision claim? 

A family provision claim—often called a Part IV claim or testator’s family maintenance claim—is an application under Part IV of the Administration and Probate Act 1958 (Vic). It asks a court to order provision, or further provision, from a deceased estate. 

A claim can arise where the deceased left a Will and also where the deceased died without a valid Will. It is not a general appeal against a Will, and the Court does not simply rewrite the estate plan according to what it considers fair. The statutory tests must be met. 

Who is eligible to make a claim? 

Victorian law contains specific categories of eligible people. These include: 

• the deceased’s spouse or domestic partner at the date of death; 

• a child, adopted child or stepchild who was under 18, a full-time student aged 18 to 25, or living with a disability; 

• an adult child or adult stepchild not within those categories; 

• a person treated by the deceased as their natural child for a substantial period, including certain adult persons; 

• a former spouse or domestic partner who satisfies particular Family Law Act requirements; 

• a registered caring partner; 

• a grandchild; 

• in limited circumstances, the spouse or domestic partner of a child of the deceased who died within one year of the deceased; and 

• a person who was, or was likely soon to again become, a member of the deceased’s household. 

What must the Court decide? 

Before making an order, the Court must be satisfied that: 

• the claimant is an eligible person; 

• any additional dependency requirement applying to their category is satisfied; 

• at the date of death, the deceased had a moral duty to provide for the claimant’s proper maintenance and support; and 

• the Will, the intestacy rules, or both failed to make adequate provision for that purpose. 

Even where those matters are established, the amount of any order cannot exceed what is necessary for the claimant’s proper maintenance and support. For certain dependency-based categories, the amount must also be proportionate to the claimant’s degree of dependency. 

What factors does the Court consider? 

Every case turns on its own facts. The Court must consider the Will, any evidence explaining the deceased’s reasons, and other evidence of the deceased’s intentions. It may also consider matters including: 

• the nature and duration of the relationship between the claimant and the deceased; 

• the size and composition of the estate and the estate’s liabilities; 

• the claimant’s age, health, income, assets, liabilities and earning capacity; 

• the financial needs and competing claims of beneficiaries and other eligible people; 

• any physical, mental or intellectual disability affecting the claimant or a beneficiary; 

• contributions made by the claimant to the deceased’s welfare or to building or preserving the estate; 

• benefits previously provided to the claimant; 

• whether the claimant was being maintained by the deceased before death; 

• the claimant’s character and conduct; and 

• any other matter the Court considers relevant. 

The six-month time limit 

How does the process usually work? 

1. Initial assessment. The solicitor reviews the Will, grant, estate value, relationship history, financial position, competing beneficiaries and any evidence of the deceased’s reasons. 

2. Notice and negotiation. The executor is usually notified and information may be requested. Many claims are explored through correspondence before or after proceedings commence. 

3. Court proceeding. If required, the claimant commences a proceeding in the Supreme Court’s Testators Family Maintenance List and files supporting evidence. 

4. Evidence and case management. The executor and affected beneficiaries may file evidence. The Court gives directions designed to identify the issues and move the matter toward resolution. 

5. Mediation. Most matters are referred to mediation. Settlement can provide certainty, reduce delay and avoid the cost and emotional strain of a trial. 

6. Hearing. If the matter does not settle, a judge determines whether an order should be made and, if so, the appropriate provision. 

What orders can the Court make? 

Depending on the circumstances, provision may take the form of a lump-sum payment, a transfer of property, a life interest, periodic payments or another arrangement suited to the claimant’s maintenance and support. Any settlement or order may also require consequential adjustments to beneficiaries’ entitlements and the administration of the estate. 

Who pays the legal costs? 

Costs are discretionary. They are not automatically paid from the estate. The outcome, the parties’ conduct, the reasonableness of offers and the size of the estate can all be relevant. An unsuccessful claimant may be ordered to pay some of the executor’s or beneficiaries’ costs, while unnecessary conduct by an executor or another party can also have costs consequences. 

If you are an executor 

An executor should remain neutral while properly defending the Will and protecting the estate. They should not distribute the estate prematurely after receiving notice of a potential claim, should keep beneficiaries informed where appropriate, and should obtain advice about evidence, mediation and the effect of any proposed settlement. Personal representatives receive statutory protection for certain properly made distributions, but the timing and notice provisions are important. 

Getting advice early 

Family provision matters are fact-sensitive. Early advice can help a potential claimant understand whether a claim is legally available and commercially sensible. It can also help an executor protect the estate, manage competing interests and respond proportionately. 

This article provides general information about Victorian law as at August 2026.
It is not legal advice and should not be relied upon as a substitute for advice about your circumstances.