Navigating Family Provision Claims: 5 Lessons from a Pivotal Victorian Case

Navigating Family Provision Claims: 5 Lessons from a Pivotal Victorian Case


Family provision claims are a critical aspect of Australian family law, providing a mechanism for individuals who believe they have not been adequately provided for in a will to seek a fairer share of the estate. A recent Victorian Supreme Court decision in September 2021 offers insightful lessons on the significance of timing, precision in communication, and the importance of understanding the legal nuances of family provision claims. In this blog post, brought to you by ConnectLaw, we unravel the complexities of this case and delve into what constitutes a family provision claim, providing essential guidance for anyone navigating this intricate area of law.

Understanding Family Provision Claims

A family provision claim is a legal application made by an eligible person, usually a close relative or dependant of the deceased, asserting that they have not received their rightful share of the estate. The court then assesses whether adequate provision has been made for the claimant’s maintenance, education, or advancement in life. These claims aim to balance the testamentary freedom of the will-maker with the moral responsibility to provide for dependants.

The Case: A Victorian Supreme Court Decision
In the case of Re Haddow: Haddow v Haddow ([2021] VSC 553), a son who felt he had been unjustly left out of his mother’s will filed a family provision claim. However, by the time the executors, who were his brother and sister-in-law, were notified, the majority of the estate had already been distributed. The court was then left to determine whether the remaining assets in the estate were sufficient to warrant the continuation of the application.

5 Key Lessons from the Case
1. Timing is Crucial: The claimant filed the family provision application just eight days before the six-month deadline from the grant of probate, highlighting the importance of acting promptly in these matters.

2. Precision in Communication: The case underscores the necessity for clear and precise communication. The court distinguished between a notice of intention to make a claim and an actual notice of an application, impacting the outcome of the case significantly.

3. Understanding Legal Protections: Familiarity with legal provisions such as section 99A of the Administration and Probate Act 1958 (Vic) is vital, as it provides protections for executors who have distributed an estate under certain conditions.

4. The Importance of Adequate Documentation: Maintaining thorough and accurate records, including clear notices and reminders, is crucial in managing family provision claims effectively.

5. Proactive Legal Assistance: Engaging with a knowledgeable legal team early in the process can provide crucial guidance, ensuring that all necessary steps are taken promptly and accurately.

In Conclusion
Family provision claims are a complex yet essential aspect of family law, aimed at ensuring fair and equitable distribution of an estate. This Victorian Supreme Court case serves as a vital reminder of the importance of timing, precision, and a thorough understanding of the legal landscape when navigating these claims.

*Photo by Moritz Kindler on Unsplash