Changes to Deceased Estate Laws

Changes to Part IV of the Administration and Probate Act 1958 are set to affect testators’ family maintenance laws. These changes relate to the types of people who may be eligible to make a claim on a deceased estate, and what the Court must consider when determining such applications.

The changes took effect on 1 January 2015 – they therefore only apply where a person dies on or after this date.

The changes restrict the type of person who is eligible to make a claim to a :

  • Spouse or domestic partner at the date of death
  • Child, including a step or adopted child, who was under 18 or a full-time student between the ages of 18 and 25, or who had a disability (defined under the NDIS legislation) at the date of death
  • Grandchild*
  • Spouse or domestic partner of a child if that child of the deceased had died within one year of the deceased’s death*
  • Former spouse or domestic partner who would have been able to make a claim under the Family Law Act 1975 but was prevented from doing so because of the death
  • Registered caring partner*
  • Member of the deceased’s household.*

*These claimants must satisfy the Court that they were wholly or partly dependant on the deceased for their proper maintenance and support.

A dependant is not defined by the legislation, but the Court must disregard any means-tested government benefits received by, or eligible to be received by the claimant.

The deceased now has a ‘moral’ duty to provide. When determining the amount, the Court must consider the degree to which the:

  • Deceased had a moral duty to provide
  • Estate fails to make adequate provision
  • Applicant is not capable of providing for themselves
  • Applicant was wholly or partly dependant on the deceased.

The Court must consider the deceased’s Will and evidence of the reasoning behind it, along with any other evidence of the deceased’s intention. The Court must also have regard to the effect of an order upon the amounts received by other people mentioned in the Will.

Finally, the Court may (but does not have to) have regard to the current criteria listed under Section 91 (4)(e)-(p) of the Administration and Probate Act 1958.