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:
- a person who was the spouseor domestic partner of the deceased at the time of the deceased's death;
- 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);
- A grandchild in some circumstances;
- A former spouse or domestic partner of the deceased who at the time of the deceased’s death:
- would have been able to take proceedings under the Family Law Act 1975; and
- has either—
- not taken those proceedings; or
- commenced but not finalised those proceedings; and
- 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.
