What Is a Family Provision Claim and How Long Does It Take in Victoria?

with Aaron Jolly, Principal and Accredited Specialist in Wills & Estates at Whyte, Just & Moore

A will isn’t always the end of the story. When an eligible person, often a family member, believes they should have received more from the estate than they did, they can lodge what’s known as a family provision claim.

This article explains who can make a claim, how it works for both the claimant and executor, and how long the process takes.

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What is a family provision claim?

‘A family provision claim is where an eligible person who believes they should have been provided for in a will, or received more under a will, makes a claim to seek that further provision,’ says Aaron Jolly, Accredited Specialist in Wills & Estates. 

It asks the Supreme Court of Victoria or County Court of Victoria to order that the claimant receive further provision from a deceased estate, because the will (or the rules of intestacy, if there was no will) did not adequately provide for their proper maintenance and support. 

These claims are governed by Part IV of the Administration and Probate Act 1958 (Vic).

This is separate from a will validity challenge, which argues the document itself is not a valid will, due to issues like undue influence or a lack of capacity. A family provision claim does not dispute the validity of the will itself. It asks the court to vary how the estate is distributed.

Who can make a family provision claim in Victoria?

Not everyone who feels hard done by can make a claim.

‘You have to be what the law defines as an eligible person, which more often than not is a family member, a spouse, an adult child, a stepchild,’ says Aaron. ‘But it can also include a concept known as a member of the household. So somebody who lives in the house with you, but not necessarily a family member.’

Children and spouses or domestic partners make up the vast majority of claims. Grandchildren are technically eligible, but they need to show a level of dependence on the deceased to succeed, such as being raised by a grandparent in place of an absent parent.

Being estranged from the deceased does not automatically rule you out. The court looks closely at why the estrangement happened. If a child chose to cut ties with a parent, that’s a weaker position than a parent who cut their child off over something like a lifestyle choice or disapproval of their partner.

What happens if you’re an executor facing a family provision claim? 

Usually, the first sign of a claim is contact from a lawyer acting for the claimant, often with an offer to resolve things without going to court. 

If early negotiation doesn’t resolve the matter, the claimant files an originating motion in either the County Court or Supreme Court, depending on the value and complexity of the estate. 

From there, the court sets a timetable for exchanging evidence, followed by a mandatory mediation. Most claims resolve at that stage. If not, the matter proceeds toward a trial.

How long does a family provision claim take?

A claim must be filed within six months of the grant of probate or letters of administration, not from the date of death. 

Although the deadline is strict, the court can grant an extension in limited circumstances, particularly if the estate has not yet been distributed.

Beyond that filing deadline, there is no single answer for how long a claim takes to resolve. ‘It depends ultimately on the willingness or otherwise of the people involved to come to a compromise,’ says Aaron. 

A straightforward claim with a reasonable offer on the table can be resolved within a few weeks. A complex or contested case, or one with multiple claimants, can take years.

What happens once a claim is settled?

A resolved claim becomes a signed agreement, which typically includes built-in consequences if a party doesn’t follow through. This might include penalty interest on late payments or a charge over a property that lets the claimant force a sale to recover what they’re owed.

Where a property needs to be sold to fund a settlement, there can still be a lengthy gap between reaching agreement and the money actually arriving.

What are the risks for executors who mismanage a claim?

Executors carry personal risk if a claim isn’t handled properly. 

If an executor unreasonably defends a claim and loses, they can be personally liable for costs, without the estate covering them. 

Distributing an estate before the six-month window has passed carries similar risk. If a valid claim then arises, the executor is held personally responsible. Beneficiaries who have already received funds or assets are under no obligation to return them.

Family provision claim FAQs

Do all children have to receive an equal share of an estate?
No. Victorian law does not require equal treatment between children. The court considers what provision is needed for a claimant’s proper maintenance and support, not a broader concept of fairness.

Can I still make a family provision claim if I’ve missed the six-month deadline?

Sometimes. The court can grant leave to extend the deadline, but this isn’t guaranteed. It depends largely on the reason for the delay and, importantly, on whether the estate has already been distributed.

What happens if more than one person makes a family provision claim on the same estate?

Multiple claimants on a single estate isn’t unusual, and it generally adds time and complexity to the process. Each claim still needs to be assessed on its own merits, which can affect how long it takes for the estate to be finalised and distributed.

Can an executor also be a beneficiary of the estate?

Yes, it’s actually the most common arrangement, not the exception. This can create a natural tension, since the executor must assess any claim impartially while also having a personal financial interest in the outcome. Executors in this position are strongly advised to seek legal guidance to keep the two roles separate.

What’s the difference between filing in the County Court and the Supreme Court?

The choice generally comes down to the size and complexity of the estate. More straightforward claims are typically filed in the County Court, while more complex estates are more often heard in the Supreme Court. 

What’s your first step?

If you’re considering making a family provision claim, get advice early. The six-month window passes quickly, and a lawyer engaged only days before the deadline has little room to properly assess your options. 

If you’re an executor facing a claim, seek legal advice as soon as it lands, so you can approach it with a clear head.

‘An executor’s obligation whenever a claim is made is to assess it impartially, and if it’s a valid claim, resolve it,’ says Aaron. ‘It shouldn’t be to fight to the end of time to try and uphold the will. This can drag things out and result in unnecessary financial costs, as well as strain on yourself and your family.’

Talk to the Wills & Estates team at Whyte, Just & Moore

Our Wills & Estates team has dealt with many cases just like yours.

Whether you’re considering lodging a family provision claim or have been named executor and are facing one, we can talk you through your options and the risks involved. Get in touch with our team today.

This article is general information only and does not constitute legal advice. Please contact Whyte, Just & Moore for advice specific to your circumstances.