Disputing an Estate or Contesting a Will – what you need to know

There are generally two grounds to contest a Will or an Estate:

  1. The Will does not properly reflect the wishes of the Willmaker due to the Willmaker having lacked capacity or the Willmaker having been under the undue influence of a third party.
  2. The Will does not make adequate provision for a beneficiary.

The latter is the most common, as the law recognises that people making a Will have a duty to make provision for close family members.

In circumstances where a Willmaker fails to make provision for a close family member, then that family member may choose to make a claim under Part IV of the Administration and Probate Act 1958 (Vic) (Act) against the estate of the deceased – this is known as a Part IV Claim.

If you have been left out of somebody’s Will, or received less in a Will than you believe you are entitled to, then you may eligible to make such a claim against the estate of the deceased.

Eligible persons – who can make a Part IV Claim?

To make a Part IV Claim, you must establish that you are an eligible person, as defined under section 90 of the Act.

Eligible persons include, but is not limited to:

  1. The spouse or domestic partner of the deceased.
  2. A former spouse or domestic partner of the deceased.
  3. Children of the deceased, including adopted and step-children.
  4. Grandchildren of the deceased.
  5. Someone who was a member of the household of the deceased.

A Part IV Claim will generally arise when a child or spouse has not been properly provided for in the deceased’s Will, or when an eligible person suffers from a disability that requires further consideration.

What does the law say?

In assessing the merits of a Part IV Claim, the Court is obligated to consider a number of matters under section 91A of the Act.  Some of the Court’s considerations will include:

  1. If the deceased had a Will, what did it say?
  2. The size and nature of the estate.
  3. What responsibilities did the deceased have to their beneficiaries?
  4. What contributions (financial and non-financial) did a person make to the deceased during their life time.
  5. What is the financial situation of a beneficiary?
  6. The nature of a beneficiaries’ relationship with the deceased.
  7. Whether any of the beneficiaries had a special need and/or disability.

Further to the above, the Court has the discretion to consider any other matter that the Court considers relevant.

What can the Court do?  Is there a time limit?

An application to the Court for a family provision order must be made within 6 months after the date of the grant of probate of the will or of letters of administration.  However, in some cases, applications can be made after this 6-month period, if the Court deems it appropriate to do so.

If found that an eligible person has a proper basis to make an application Part IV of the Act, the Court can make an order that provision be made from the deceased’s estate, which may consist of a lump sum and/or periodical payment.

What’s next?

If you believe you are an eligible person and wish to make a Part IV Application against the estate of a deceased and/or contest a Will of a deceased, you should not hesitate to contact our office for an appointment with our litigation and dispute resolution team.

 

Peter Renwick

Director

E prenwick@kennedyguy.com.au

 

James Penman

Lawyer

E jpenman@kennedyguy.com.au

 

What factors are considered in a family law property settlement?

When a marriage or a de facto relationship breaks down, the Family Court of Australia and Federal Circuit Court of Australia adopt the following steps to determine an appropriate property settlement:

  • Step 1: The first step is to determine the asset pool available for distribution between the parties. This step involves identifying and valuing the assets, liabilities and financial resources of each party at the date of the hearing. In some circumstances, the Court can “add back” to the asset pool property that no longer exists.
  • Step 2: The second step is to assess the parties’ respective contributions. This step involves considering the financial and non-financial contributions that each party has made to the acquisition, maintenance and/or improvement of the parties’ property, and to consider the contributions that each party has made to the welfare of the family. The Court will attribute a percentage of the asset pool to each of the parties based on their respective contributions.
  • Step 3: The third step involves a consideration of the factors outlined at s 75(2) or s 70SF(3) of the Family Law Act (Cth) 1979. These factors are commonly referred to as future needs factors. After considering the parties’ future needs, the Court may decide to allocate to one of the parties an additional percentage of the asset pool or a particular sum.
  • Step 4: The fourth and final step is to consider what Orders are just and equitable in the circumstances of the case.

It is strongly recommended that any settlement reached be made legally binding, and that you obtain legal advice in relation to your entitlements and options before finalising a property settlement by agreement or going to Court.

If you would like to discuss your family law matter, please contact our office to speak with one of our family lawyers on (03) 9311 8511.

Owners Corporations – Airbnb

The relevant legislation governing Owners Corporations is the Owners Corporation Act 2006.

As a general rule, an Owners Corporations’ role is to manage the common property accessible by lot owners.  However, this power does not extend to infringe on a lot owner’s right to deal with their own property, including the right to rent it out to short-term tenants.

Recent developments

The Supreme Court case of Owners Corporation PS 501391P v Balcombe (2016) concerned an application made by an Owners Corporation against one of the lot owners, Balcombe, who had been renting out her apartment via Airbnb.

The other lot owners sought an application to restrain Balcombe from continuing to rent out the apartment to Airbnb guests, on the basis that it breached the Owners Corporations’ rules.

The Court found that an Owners Corporation did not have authority to prevent lot owners from using their apartment for short-term leasing i.e. renting their apartment to Airbnb guests.

Response from Victorian Government

In response to issues raised in cases such as Owners Corporation PS 501391P v Balcombe (2016), the Victorian State government introduced the Owners Corporation Amendment (Short-stay Accommodation) Act 2018, which commenced on 1 February 2019.

The amending Act does not prevent a lot owner from renting out their apartment;  however, it does provide grounds to issue a complaint against a lot owner due to the behaviour of their short-term tenants.

Under the amending Act, VCAT now has powers to:

  • compensate neighbours up to the amount of $2,000.00, due to loss caused by a short-term tenant’s behaviour;
  • fine short-term tenant up to $1,100.00 for bad behaviour, such as excessive noise or damaging property;
  • where there is multiple breaches by a unit holder’s short-term tenants, prohibit that lot owners from renting their apartment to short-stay tenants.

If you require advice regarding an Owners Corporation matter, you should not hesitate to contact our dispute resolution team on (03) 9311 8511.

The importantance of a letter of demand

Why is a letter of demand important?

A letter of demand is a formal demand made of a party to do something or not do something.  It is generally sent as a final notice prior to a party issues legal proceeding.

The most common topic of a letter of demand regards the payment of debt.

However, a letter of demand can also seek that a party do something (e.g. to fulfil their end of an agreement) or seek that a party is prevented from doing something (e.g. stop a continuing breach of contract or licence).

Do I need to send a letter of demand?

There is no legal requirement to send a letter of demand before issuing legal proceedings against someone.  However, a Court or Tribunal will not take a favourable view if you have not taken reasonable steps to resolve a dispute, prior to issuing legal proceedings.

A letter of demand not only puts pressure on a party to remedy a situation early on, but it also demonstrates your intentions to resolve a matter amicably and without court or tribunal involvement.

When should a letter of demand be sent?

A letter of demand should only be sent when other attempts to seek payment or action or to cease action from a party or person have been ignored, such as when emails and telephone calls have been unreasonably ignored.

However, in some circumstances a letter of demand should be sent immediately.  For example, when there is no dispute as to a debt and the other party has indicated that they will not pay or if it is to urgently prevent damage or an event from occurring.

It is critical that the content of your letter of demand is carefully considered and drafted so as to ensure that you do not make admissions or derogate any of your rights.

If you require legal advice regarding a debt or dispute, including advice on sending a letter of demand, you should contact our litigation department on (03) 9311 8511.

Landlords, Tenants and Airbnb

Are you a landlord, tenant or lot owner subject to an Owners Corporation (formerly known as a ‘Body Corporate’)?

If so, it is important that you know your rights and obligations regarding the short-term letting of tenants.  In other words, how can Airbnb – and other similar services – impact you?

The relevant legislation in Victoria that outlines the rights and obligations between landlords and tenants is the Residential Tenancies Act 1997 and Residential Tenancies Regulations 2008.

Under the Act and Regulations, a landlord can issue a Notice to Vacate to a tenant when a tenant has ‘sub-let’ or ‘subleased’ a premises without the landlord’s consent i.e. rented the premises to someone not on the lease.  The issue, however, is whether a tenant renting a premises via services like Airbnb constitutes a ‘sublease’ or merely the granting of a ‘licence’.

Recent developments

The recent Supreme Court case of Swan v Uecker (2016) regarded a dispute between a landlord and a tenant, where the tenant was renting out an apartment to short-term guests via Airbnb.  The landlord had applied to the VCAT for an order to evict the tenant and take possession of the apartment, on the basis that the tenant was subleasing the apartment without the landlord’s consent.

At first instance, the VCAT denied the landlord’s request, stating that the tenant had merely provided the Airbnb guests a licence to occupy the apartment, as opposed to a sublease, and therefore had not breached the tenancy agreement.

The landlord appealed the VCAT’s decision and the matter was referred to the Supreme Court.  The Court confirmed the VCAT’s reasoning that a tenant providing a licence to Airbnb guests was not a breach of a tenancy agreement.  However, upon a review of the relevant material, the Court found that the tenant had in fact provided a sublease to their Airbnb guests. The key factor to the Court in determining if an agreement was a sublease or merely a licence was whether it provided the guests exclusive possession to the apartment.

The VCAT’s order was overturned and the Court made an order for possession in the landlord’s favour.  In doing so, the case provides a warning to tenants who seek to rent a premises via services such as Airbnb without the landlord’s consent.

You should contact our dispute resolution team on (03) 9311 8511 if you have an issue regarding a tenancy arrangement.