Victorian Numbered Acts

JUSTICE LEGISLATION AMENDMENT (SUCCESSION AND SURROGACY) ACT 2014 (NO. 80 OF 2014) - SECT 5

For section 91 of the Administration and Probate Act 1958 substitute —

        "     91     Court may make family provision order

    (1)     Despite anything to the contrary in this Act, on an application under section 90A, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.

    (2)     The Court must not make a family provision order under subsection (1) unless satisfied—

        (a)     that the person is an eligible person; and

        (b)     in the case of a person referred to in paragraphs (h) to (k) of the definition of "eligible person", that the person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support; and

        (c)     that, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and

        (d)     that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by—

              (i)     the deceased's will (if any); or

              (ii)     the operation of Division 6 of Part I; or
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Note

Division 6 of Part I contains the intestacy provisions.

              (iii)     both the will and the operation of Division 6 of Part I.

    (3)     For the purposes of subsection (2)(b), the Court must disregard any means-tested government benefits that the eligible person has received or is eligible to receive.

    (4)     In determining the amount of provision to be made by a family provision order, if any, the Court must take into account—

        (a)     the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and

        (b)     the degree to which the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person; and

        (c)     in the case of an eligible person referred to in paragraph (f) or (g) of the definition of "eligible person", the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support; and

        (d)     in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of "eligible person", the degree to which the eligible person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support at the time of the deceased's death.

    (5)     The amount of provision made by a family provision order—

        (a)     must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support; and

        (b)     in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of "eligible person", must be proportionate to the eligible person's degree of dependency on the deceased for the person's proper maintenance and support at the time of the deceased's death.

        91A     Factors to be considered in making family provision order

    (1)     In making a family provision order, the Court must have regard to—

        (a)     the deceased's will, if any; and

        (b)     any evidence of the deceased's reasons for making the dispositions in the deceased's will (if any); and

        (c)     any other evidence of the deceased's intentions in relation to providing for the eligible person.

    (2)     In making a family provision order, the Court may have regard to the following criteria—

        (a)     any family or other relationship between the deceased and the eligible person, including—

              (i)     the nature of the relationship; and

              (ii)     if relevant, the length of the relationship;

        (b)     any obligations or responsibilities of the deceased to—
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              (i)     the eligible person; and

              (ii)     any other eligible person; and

              (iii)     the beneficiaries of the estate;

        (c)     the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;

        (d)     the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of—

              (i)     the eligible person; and

              (ii)     any other eligible person; and

              (iii)     any beneficiary of the estate;

        (e)     any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;

        (f)     the age of the eligible person;

        (g)     any contribution (not for adequate consideration) of the eligible person to—

              (i)     building up the estate; or

              (ii)     the welfare of the deceased or the deceased's family;

        (h)     any benefits previously given by the deceased to any eligible person or to any beneficiary;

              (i)     whether the eligible person was being maintained by the deceased before that deceased's death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;

        (j)     the liability of any other person to maintain the eligible person;

        (k)     the character and conduct of the eligible person or any other person;

        (l)     the effects a family provision order would have on the amounts received from the deceased's estate by other beneficiaries;

        (m)     any other matter the Court considers relevant.".