by Jacqui Brauman
Part IV of the Administration and Probate Act is the primary means to bring a claim against a Will in Victoria – that is, a family provision claim, or testatorâ€™s family maintenance claim. Such a claim is that a family member who the deceased person had an obligation to provide for has not been given an adequate amount in the Will.
Another way of making a claim against a Will is a claim of estoppel. The doctrine of estoppel applies when a person expects to receive a gift in the Will, because of representations and promises that the deceased person has made to them. Because of those promises, the person went out of their way to rely on the promise, otherwise to their detriment. Then they donâ€™t get what they were promised despite having acted that way they did – the law wonâ€™t let them miss out.
In farming families, this is a perfect example. One child stays on the farm and earns less than market value in wages, on the promise that they will get the farm when the parents die. Instead, the parents leave the farm equally to their children, and the child who had stayed on the farm is disadvantaged because they relied on the promise.
To get an estoppel claim raised, there has to be reliance on the promise, and a detriment due to that reliance. The reliance also cannot have been unreasonable in the circumstances.
These cases are rare, but it will be interesting to see if they increase, given the recent changes to the laws in Victoria which now limit the categories of people who can make a family provision claim.