Victorian Current Acts Victorian Current Acts(1) Despite anything to the contrary in this Act, on an application under section 90A, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.
(2) The Court must not make a family provision order under subsection (1) unless satisfied—
(a) that the person is an eligible person; and
(b) in the case of a person referred to in paragraphs (h) to (k) of the definition of "eligible person", that the person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support; and
(c) that, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and
(d) that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by—
(i) the deceased's will (if any); or
S. 91(2)(d)(ii)
amended by No. 41/2017 s. 12(1).
(ii) the operation of Part IA; or
Note to s. 91(2)(d)(ii)
amended by No. 41/2017 s. 12(2).
Note
Part IA contains the intestacy provisions.
S. 91(2)(d)(iii)
amended by No. 41/2017 s. 12(3).
(iii) both the will and the operation of Part IA.
(3) For the purposes of subsection (2)(b), the Court must disregard any means-tested government benefits that the eligible person has received or is eligible to receive.
(4) In determining the amount of provision to be made by a family provision order, if any, the Court must take into account—
(a) the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and
(b) the degree to which the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person; and
(c) in the case of an eligible person referred to in paragraph (f) or (g) of the definition of "eligible person", the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support; and
(d) in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of "eligible person", the degree to which the eligible person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support at the time of the deceased's death.
(5) The amount of provision made by a family provision order—
(a) must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support; and
(b) in the case of an eligible person referred to in paragraphs (h) to (k) of the definition of "eligible person", must be proportionate to the eligible person's degree of dependency on the deceased for the person's proper maintenance and support at the time of the deceased's death.
S. 91A inserted by No. 80/2014 s. 5.