Ensure that the right provisions are made for your future.

Rose Lawyers on 10 August 2016

Contesting a Will is never easy, but sometimes it is necessary. Here is our guide to contesting a Will with a Part IV Application.

What is a Part IV Application?

A Part IV Application is a claim for family provision made against a deceased estate. The name refers to Part IV of the Administration and Probate Act 1958 Victoria.

If you have been left out of somebody’s Will, and you feel that you are entitled to it, then you may be able to make a Part IV Application to receive adequate provision for your proper maintenance and support.

Who is eligible to make a Part IV Application?

In order to dispute an estate with a Part IV Application, you must prove that you are an eligible person in accordance with the Act. Eligibility will depend on your specific circumstances, but eligible people generally include:

  • A spouse, domestic partner, or former spouse in some circumstances.
  • Children, including adopted, step children and someone who believed that they were a child and was treated like a child.
  • Grandchildren in some circumstances.
  • A registered caring partner in some circumstances.

The need for someone to make a Part IV most commonly arises when a child has not been included in a parent's Will or if one of the beneficiaries is disabled and their carers do not feel that adequate provision has been made for the disabled person.

For example, if three children each receive one-third of their parents' estate, and one of those children is severely disabled, they may have a claim for a larger portion of the estate than their siblings.

Making a Part IV Application

There are a number of steps involved in making a Part IV Application, and so it is always advised that you seek expert legal advice, especially if you are not familiar with legal terms and documents.

You will need to make an application to the Supreme Court against the executor of the Will, and the matter will then proceed through the usual channels of the Court including mediation to try to resolve the dispute.

A lawyer will be able to help you with the required documentation, including affidavits, as well with other preparations such as calling witnesses. Having a Lawyer there who is an unbiased and independent third party will also assist in helping you stay rational since people are often grieving and emotional at times like this.

What the court will consider

Once you have made your application, there is a large number of issues that the Court will consider in making its decision. One of the biggest considerations for the court is how your claim will affect the amounts that the other beneficiaries will receive.

Some of the other considerations include:

  • The deceased's Will, if they left one.
  • Evidence of the deceased’s reasons for making their decisions, if any.
  • The nature of your relationship with the deceased, including any obligations or responsibilities.
  • Any obligations or responsibilities the deceased had to other beneficiaries.
  • The size and nature of the estate, including any contribution you made to it.
  • Your financial resources and those of the other beneficiaries.
  • Any special needs that you or the other beneficiaries have.

When deciding on your application, the court will also consider whether the deceased had a moral duty to provide for you. For example, if you are financially independent and stable, then the court may find that the deceased did not have a moral duty to provide for you since you can provide for yourself.

Get expert legal advice

getting legal advice on phoneThe services of expert will and estate lawyers will ensure that your Part IV Application goes as smoothly as possible.

At Rose Lawyers, we have been helping our clients through difficult times and circumstances for decades. We will handle your matter with the sensitivity and care that it needs.

For assistance with your Part IV Application, call Rose Lawyers on 03 9878 5222.