Questions

Factors affecting settlement of family provision claims

FP1     What factors affect a decision to settle a family provision application rather than proceeding to court hearing?

Time limits and extension of time

FP2    Is the current period within which an application for family provision can be made in Victoria (six months from the grant of representation):

(a) satisfactory?

(b) too short?

(c) too long?

Opportunistic claims

FP3    To what extent does the current law allow applicants to make family provision claims that are opportunistic or non-genuine?

FP4     Does section 97(7) of the Administration and Probate Act 1958 (Vic), which permits the court to order an unsuccessful applicant to pay their own costs and the costs of the defendant personal representative, deter opportunistic applicants from making family provision claims?

FP5    Does the power of the court to summarily dismiss claims deter opportunistic applicants from making family provision claims?

Excessive costs

FP6    Are costs orders in family provision cases impacting unfairly on estates?

 

Transactions during the deceased person’s lifetime that reduce the size of their estate

FP7     To what extent do people deal with their assets during their life in order to minimise the property that is in their estate and frustrate the operation of family provision laws? What are some examples of this?

FP8     Should people be entitled to deal with their assets during their lifetime to minimise the property that is in their estate?

Reviewing the purpose of family provision laws

FP9     Should the purpose of family provision legislation be to protect dependants and prevent them from becoming dependent on the state?

FP10   Are there wider purposes or aims that family provision laws should seek to achieve?

 

Limiting eligibility to make a family provision application

FP11   Should Victoria implement the National Committee’s proposed approach to eligibility to apply for family provision?

FP12   Should Victoria limit eligibility to make a family provision application in the same way thatNew South Waleshas?

FP13   If Victoria were to adopt theNew South Walesapproach:

(a) Are the categories recognised inNew South Walessufficient or should others be included?

(b) Should applications by certain categories of applicant be further limited? If so:

-    What should the nature of such further limitation be? For example, should the limitation be a requirement to show ‘factors warranting the making

of the application’, as in New SouthWales, or some other test, such as

‘exceptional circumstances’ or ‘special circumstances’?

-    To which categories of applicant should the additional limitation apply?

FP14   Should Victoria retain its current ‘responsibility’ criterion for eligibility to make a family provision application, but require applicants to have been dependent on the deceased person? If so, should ‘dependence’ be limited to financial dependence?

FP15   Would including a dependence requirement encourage dependence on the deceased person during their lifetime, in order to benefit after their death?

FP16   Should Victoria retain its current ‘responsibility’ criterion for eligibility to make a family provision application, but require applicants to demonstrate financial need?

Amending costs rules and principles

FP17   Should there be a legislative presumption that, in family provision proceedings, an unsuccessful applicant will not receive their costs out of the estate?

FP18   Should one of the following costs rules apply, as a starting point, when an applicant is unsuccessful in family provision proceedings?

(a) ‘Loser pays, costs follow the event’—that is, both parties’ costs are borne by the unsuccessful applicant as in other civil proceedings.

(b) ‘No order as to costs’—the applicant bears the burden of their own costs.

FP19   Are family provision proceedings generally less costly in the County Court than in the Supreme Court?

FP20   What measures are working well to reduce costs in family provision proceedings in the County Court and the Supreme Court?

FP21   Are there any additional measures that would assist in reducing costs in family provision proceedings?

 

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