Estate Group case note: Supreme Court of Victoria clarifies 'dependence' in Victorian estate claims

Oct 15, 2019

The Supreme Court of Victoria recently published its judgment on a claim for provision by a granddaughter against her grandmother’s estate in Veniou v Equity Trustees Limited [2018] VSC 832.

Significantly, the case is the first to interpret the meaning of 'dependence' in Victorian estate claims, a requirement for certain claimants introduced under law reforms in 2015.

How does a Court assess an estate claim?

An estate claim is essentially a three stage process which requires the Court to consider and balance:

  1. the eligibility of the claimant, which is determined by category under the Administration and Probate Act 1958 (the Act);
  2. whether (or not) adequate provision has been made for the claimant’s proper maintenance and support, having regard to the claimant’s financial position, the size of the estate and any competing claims of the beneficiaries (a threshold question); and
  3. the amount of provision or further provision that should be made, if any, (a quantum question), taking into account the factors listed in the Act.

Provision awarded on proof and level of ‘dependency’

For certain eligible persons, including a grandchild, the Court’s power to award provision is restricted by requiring:

  • the claimant to show that he or she was wholly or partly dependent on the deceased for proper maintenance and support; and
  • any provision to be proportionate to the claimant’s degree of dependency at the time of death.

The Court’s decision

In Veniou v Equity Trustees Limited, with no guidance in any Victorian authority on the meaning of ‘dependent’, the Court considered the speeches that accompanied the amending legislation and relevant New South Wales cases. Ultimately, the Court concluded that:

"dependence requires the actual provision of some form of material assistance ― financial or other form of material aid such as relying on the deceased for accommodation ― as opposed to mere emotional dependence, a promise of some undefined financial aid in the future or the expectation of inheritance."

To read the Judgement in full, click here

More information

If you need advice on, or assistance with, an estate claim, please contact our Estate Group on (03) 8600 8885.

Author

This Estate Group case note was authored by Ainsleigh Valentine, Associate.

Note: This update is a guide only and is not intended to constitute legal advice.

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