Introduction

 

2.1   In Victoria, a person for whom a deceased person had a responsibility to make provision can apply for a court order redistributing the deceased person’s estate in their favour. This can occur whether or not the deceased person made a will. This area of law is referred to as ‘family provision’ and exists in all Australian states and territories.

2.2   Family provision law developed in recognition that, although people are free to give away their property by will after they die, they also have a responsibility to provide for certain people.

2.3   Approximately 500 to 600 family provision applications are made in Victoria each year. For example, in 2010–11 there were 493 family provision claims initiated in the Supreme Court and 108 initiated in the County Court—a total of 601—compared to 17,979 grants of probate and letters of administration. These figures show that a family provision application was made following 3.3 per cent of grants (although it should be noted that family provision applications may be made within six months of the grant, so some family provision matters may have been initiated in the 2011–12 financial year for grants from the 2010–11 financial year).

2.4   Legal practitioners have told the Commission that a very high proportion of family provision matters settle; one legal practitioner estimated that as many as 95 per cent of all family provision matters settle. It is not possible to obtain specific data about how many family provision applications settle, but it is clear that it is the vast majority. In all family provision applications, legal costs are incurred and often borne by the estate.

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