In Victoria, if you are not included as a beneficiary under a Will, you can apply to the Supreme Court of Victoria for provision under Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”). The Act provides that persons eligible to apply are:
- The deceased’s spouse or de facto partner;
- A child of the deceased including a step-child, adopted child and a person who believed they were the deceased’s natural child and were treated as such by the deceased; and
- The deceased’s former spouse or de facto partner in circumstances where family law proceedings have not been issued or finalised.
Others are eligible to apply for provision, such as grandchildren, registered caring partners, members of the deceased’s household and spouses or domestic partners of a child of the deceased who died within one year of the deceased’s death, however, they need to show that they were wholly or partly dependent on the deceased.
Application by Member of the Household
The recent case of Re Meuleman; Quminakelo v Amidzic [2020] VSC 376 the court had to consider what it meant to be a member of the household in a Part IV proceeding.
Background
The Plaintiff and the deceased became close friends in 2007. At the time the deceased was an 83 year old widow who lived on her own and had no close family. The Plaintiff was a 42 year old single mother.
By 2008 the Plaintiff and her son were staying with the deceased most nights however she kept her own rental accommodation which she returned to a few nights a week for essential tasks.
The Plaintiff provided care and support to the deceased, who financially contributed towards the Plaintiff’s expenses including her rent, expenses, her son’s school and sports fees and her medical expenses.
These arrangements continued until the deceased moved into aged care in June 2013 as she could no longer live at home due to her dementia. The Plaintiff continued to visit the deceased daily and provided her with care and support.
The Plaintiff alleged that the deceased promised her that she would be provided for when deceased died but after her death in April 2017, it was found that the deceased had left her estate to charity and made no provision for the Plaintiff or her son.
The Plaintiff sought provision from the estate on the ground that she was a member of the deceased’s household.
Eligibility
The executor of the estate argued that the Plaintiff was not an eligible person as a member of the household needs continued and permanent living arrangements. The executor relied on the fact that the deceased had been living in aged care for four years before her death and therefore the Plaintiff was not a member of the household as at her death.
The Plaintiff argued that it was possible to have a household spread across two locations and the relationship of members of the household continued between her and the deceased even though they were separated.
In considering the matter, the court held that because the Act does not define the meaning of a member of the household, it is fluid and flexible and held it requires cohabitation that is continual or permanent. Regular visitation and staying overnight is not sufficient to meet the definition. The cohabitation must also have sufficient duration and there must be a relationship supporting the cohabitation.
The hallmarks of such a relationship would include:
- a bond or unity – a concern with and interest in each other’s lives;
- an intimate connection with another member of the household;
- a willingness to permit return, or to return, when faced with vicissitudes, turbulence or failed attempts at living independently;
- mutual support, community of resources, voluntary restraint on personal freedom for the sake of the other; and
- a bond that must be quasi-familial or that of a friendship rather than that of landlord and boarder or master and servant.
The court found that in this matter, a relationship did exist between the deceased and the Plaintiff whilst they lived together from October 2007 to June 2013 and that as the Plaintiff continued to care for, and support, the deceased, it was possible that she remained a member of the household after the deceased moved into the aged care facility as the move was involuntary or ‘forced’ due to the deceased’s illness. The court considered circumstances where married or domestic partners are separated when one of the partners is admitted to aged or palliative care and that this involuntary separation does not terminate a domestic relationship.
Dependency
Having established that she was a member of the household, to be successful, the Plaintiff still needed to satisfy the court that she was dependent (wholly or partly) on the deceased for maintenance and support.
The court confirmed that dependence for the purposes of the Act means financial or material dependence and emotional dependence on its own is insufficient unless there are special circumstances attached (eg: when a young child or otherwise unable to care for themselves, due to a disability).
Whilst the Plaintiff had clearly depended on the deceased for financial assistance when living together until October 2013, there was no evidence that this assistance continued beyond this point. As the Plaintiff did not depend on the deceased financially at the time of her death, the court could not grant relief and the proceeding was dismissed.
How Can Nevett Ford Assist You?
For advice and assessment on Part IV applications and contesting Wills generally please contact our experienced estate dispute team on 9614 7111 to make an appointment for an initial consultation.
[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]In Victoria, if you are not included as a beneficiary under a Will, you can apply to the Supreme Court of Victoria for provision under Part IV of the Administration and Probate Act 1958 (Vic) (“the Act”). The Act provides that persons eligible to apply are:
- The deceased’s spouse or de facto partner;
- A child of the deceased including a step-child, adopted child and a person who believed they were the deceased’s natural child and were treated as such by the deceased; and
- The deceased’s former spouse or de facto partner in circumstances where family law proceedings have not been issued or finalised.
Others are eligible to apply for provision, such as grandchildren, registered caring partners, members of the deceased’s household and spouses or domestic partners of a child of the deceased who died within one year of the deceased’s death, however, they need to show that they were wholly or partly dependent on the deceased.
Application by Member of the Household
The recent case of Re Meuleman; Quminakelo v Amidzic [2020] VSC 376 the court had to consider what it meant to be a member of the household in a Part IV proceeding.
Background
The Plaintiff and the deceased became close friends in 2007. At the time the deceased was an 83 year old widow who lived on her own and had no close family. The Plaintiff was a 42 year old single mother.
By 2008 the Plaintiff and her son were staying with the deceased most nights however she kept her own rental accommodation which she returned to a few nights a week for essential tasks.
The Plaintiff provided care and support to the deceased, who financially contributed towards the Plaintiff’s expenses including her rent, expenses, her son’s school and sports fees and her medical expenses.
These arrangements continued until the deceased moved into aged care in June 2013 as she could no longer live at home due to her dementia. The Plaintiff continued to visit the deceased daily and provided her with care and support.
The Plaintiff alleged that the deceased promised her that she would be provided for when deceased died but after her death in April 2017, it was found that the deceased had left her estate to charity and made no provision for the Plaintiff or her son.
The Plaintiff sought provision from the estate on the ground that she was a member of the deceased’s household.
Eligibility
The executor of the estate argued that the Plaintiff was not an eligible person as a member of the household needs continued and permanent living arrangements. The executor relied on the fact that the deceased had been living in aged care for four years before her death and therefore the Plaintiff was not a member of the household as at her death.
The Plaintiff argued that it was possible to have a household spread across two locations and the relationship of members of the household continued between her and the deceased even though they were separated.
In considering the matter, the court held that because the Act does not define the meaning of a member of the household, it is fluid and flexible and held it requires cohabitation that is continual or permanent. Regular visitation and staying overnight is not sufficient to meet the definition. The cohabitation must also have sufficient duration and there must be a relationship supporting the cohabitation.
The hallmarks of such a relationship would include:
- a bond or unity – a concern with and interest in each other’s lives;
- an intimate connection with another member of the household;
- a willingness to permit return, or to return, when faced with vicissitudes, turbulence or failed attempts at living independently;
- mutual support, community of resources, voluntary restraint on personal freedom for the sake of the other; and
- a bond that must be quasi-familial or that of a friendship rather than that of landlord and boarder or master and servant.
The court found that in this matter, a relationship did exist between the deceased and the Plaintiff whilst they lived together from October 2007 to June 2013 and that as the Plaintiff continued to care for, and support, the deceased, it was possible that she remained a member of the household after the deceased moved into the aged care facility as the move was involuntary or ‘forced’ due to the deceased’s illness. The court considered circumstances where married or domestic partners are separated when one of the partners is admitted to aged or palliative care and that this involuntary separation does not terminate a domestic relationship.
Dependency
Having established that she was a member of the household, to be successful, the Plaintiff still needed to satisfy the court that she was dependent (wholly or partly) on the deceased for maintenance and support.
The court confirmed that dependence for the purposes of the Act means financial or material dependence and emotional dependence on its own is insufficient unless there are special circumstances attached (eg: when a young child or otherwise unable to care for themselves, due to a disability).
Whilst the Plaintiff had clearly depended on the deceased for financial assistance when living together until October 2013, there was no evidence that this assistance continued beyond this point. As the Plaintiff did not depend on the deceased financially at the time of her death, the court could not grant relief and the proceeding was dismissed.
How Can Nevett Ford Assist You?
For advice and assessment on Part IV applications and contesting Wills generally please contact our experienced estate dispute team on 9614 7111 to make an appointment for an initial consultation.