Factors considered by the court

 

2.10   The statutory factors that the court must consider at all stages of its decision-making process in family provision proceedings are: 7

•    any family or other relationship between the deceased person and the applicant, including the nature and length of the relationship

•    obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate

•    the size and nature of the estate, and the charges to which the estate is subject

•    the financial resources and needs of the applicant, of any other applicant and any beneficiary of the deceased person’s estate

•    any physical, mental or intellectual disability of the applicant or any beneficiary of the estate

•    the age of the applicant

•    any contribution of the applicant to building up the estate8 or to the welfare of the deceased person or the family of the deceased person

•    any benefits previously given by the deceased person to any applicant or beneficiary

•    whether the applicant was being maintained, wholly or partly, by the deceased person before their death and, if the court considers it relevant, the extent to which and the basis upon which the deceased person had assumed that responsibility

•    the liability of any other person to maintain the applicant

•    the character and conduct of the applicant or any other person

•    any other matter the court considers relevant.

2.11    In addition to this list of factors that the court must consider, there is also scope for the court to hear evidence on the reasons for the dispositions in the deceased’s will, if they made a will, when hearing and determining a family provision application. When hearing a family provision application, the court is required to ‘inquire fully into the estate of the deceased’, and in doing so may accept any evidence of the deceased person’s reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing.9

2.12    The statutory factors are given different weight depending on the facts of the case, and some may not be relevant at all.

FOOTNOTES

7   Ibid ss 91(4)(e)–(p).
8   Not for adequate consideration: ibid s 91(4)(k).
9   Administration and Probate Act 1958 (Vic) s 94(c

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