Challenges to Wills – First Case Decided Since Extensive Changes to the Administration and Probate Act

Challenges to Wills – First Case Decided Since Extensive Changes to the Administration and Probate Act

Brimelow v Alampi [2016] VSC 135 (8 April 2016) was a claim by an adult daughter against her mother’s estate for whom the deceased made no provision.  Whilst the defendant had conceded that the deceased did in fact owe her daughter a moral duty and was therefore entitled to receive provision from the deceased’s estate the issue before the court was as to the amount she should receive.  Her Honour Justice McMillian sets out a good summary of how the new law applies and provides much anticipated insight into how the Courts will interpret the new law.

It would appear from the decision that aside from the major changes to the law by the introduction of a category based eligibility requirement and dependency requirements for certain eligible persons, not much has changed.  Much of the new law appears to simply confirm the existing law and the Court’s role in determining claims prior to the changes.

Her Honour did state that the new law is intended to limit claims by adult children who are not suffering financial hardship, but aside from that she did not elaborate on the effect of the new requirement of the Court to take into account the degree to which adult children are not capable, by reasonable means, of providing adequately for their own proper maintenance and support.

No doubt future cases will shed further light on this requirement for claims by adult children and also test the boundaries of the new eligibility requirements.

For more information please contact our friendly and professional team at Peter Speakman & Co Lawyers on 9822 8611.