BALDWINS • FoodLegal

Australian Lawyers and Consultants

Contests over Wills

May-June 2004

Even when a properly drawn-up Will exists, distribution of the deceased’s assets may still be contested by any person claiming a dependent relationship with the deceased. Section 91 of the Administration and Probate Act 1958, empowers the Supreme Court to redistribute the deceased’s assets. Orders for maintenance can arise from a moral obligation of a testator to those people who depend on him or her for financial support – most usually the child of the deceased.

Recently, the Victorian Supreme Court has overruled some Wills in the belief that a dependant has been inadequately provided for under the deceased’s Will. In late March 2004, the Supreme Court of Victoria in Monshing (dec’d): Hobbley v Stevenson & Anor (No 2) held that the daughters of the testator, who were ‘now impoverished and almost without assets’ had been inadequately provided for in the distribution of their father’s property and redistributed the assets to give the daughters greater portions.

In McKenzie v Topp [2004] VSC 90 (decided in late March 2004), the Victorian Supreme Court considered a dependant need not be a blood relation. There a stepson had not been adequately provided for, having regard to his situation and the close relationship between him and his stepmother. The court took into consideration the time and effort he put into caring for his elderly stepmother as well as the living and financial arrangements.

A claim on the basis of inadequate provision to a dependant can usually only be made prior to the distribution of the assets involved and must usually be made within 6 months after probate has been granted – although an extension may possible (as in the recent case Walker v Walker [2004] VSC 94).

For further information, contact Sam Recht at BALDWINS, Australian Lawyers & Consultants.

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