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Family Provision Claims

VIC

This publication covers family provision claims in Victoria when acting for the plaintiff or the estate.

4 Matter Plans

Overview

The commentaries outline the three-stage process relevant to family provision claims. This enables practitioners to offer precise initial advice and manage a matter from negotiation through to settlement or hearing.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Also included are 101 Succession Answers (NSW) and 101 Subpoena Answers, which are useful reference guides.

Precedents in this publication include:

  • Suite of letters to the client and other relevant parties;
  • Offers of compromise and Calderbank offers;
  • Deed of settlement of a family provision claim;
  • Deed of family arrangement;
  • Brief to counsel with example content;
  • Necessary forms and precedents to file or respond to a claim
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4 Matter Plans Included

  • Item icon ALERT - The Supreme Court (General Civil Procedure) Rules 2025 replaced the Supreme Court (General Civil Procedure) Rules 2015 as of 8 September 2025.
    The Supreme Court (General Civil Procedure) Rules 2025 replaced the Supreme Court (General Civil Procedure) Rules 2015 as of 8 September 2025.

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  • Item icon Full Commentary - Family Provision Claims (VIC) - Acting for the Plaintiff
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 101 Succession Answers (VIC)
    • Item icon 101 Subpoena Answers
    • Item icon 101 Costs Answers
    • Item icon Further information
  • Item icon Overview and limitation periods
    Until the introduction of testators’ family maintenance legislation in New Zealand at the start of the twentieth century, and its speedy adoption in Victoria in 1906, and then throughout the Australian states and ultimately England, there was no way by which a disappointed dependant could claim ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Family provision claims - Acting for the plaintiff
    • Item icon To do list - Family provision claims - Acting for the plaintiff
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Family provision claims - Acting for the plaintiff
    • Item icon Conflict of interest check
    • Item icon Initial letter to client with costs agreement
    • Item icon Costs agreement - VIC
    • Item icon Standard costs disclosure form for clients - Fees under $3000
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Taking instructions and advising on the claim
      The client will be a person who has a close family or other relationship with the deceased and has received no provision, or what they consider to be inadequate provision, from the deceased’s estate under a will or under the laws of intestacy. In Victoria the laws of intestacy exclude non-family ...

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    • Item icon Challenging the validity of a will
      A challenge to a will is a different issue to a family provision claim. Challenging a will questions its validity, on the basis of the testator’s capacity, for example. Such a challenge requires the claimant to have standing, as a person named in the will, or a person entitled under intestacy laws ...

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    • Item icon Eligible persons
      From 1 January 2015 the following claimants are 'eligible persons' under s 90 Administration and Probate Act 1958:

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    • Item icon When the court can make orders and the factors considered
      When the court can make an order Section 91(2) Administration and Probate Act 1958 provides that a court must not make an order unless satisfied:

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    • Folder icon If required - Brief to counsel
      • Item icon Brief to counsel - Family provision claim
      • Item icon Example content - Brief to counsel - Family provision claim
    • Item icon Letter to potential claimant
    • Item icon Letter to client with initial advice
    • Item icon Affidavit of the plaintiff
      The plaintiff’s affidavit is the key piece of evidence for the claimant. The affidavit, or position statement if the estate is valued at less than $750,000, should contain:

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    • Item icon Affidavit
    • Item icon Example content - Affidavit of the plaintiff (Estate greater than $750K)
    • Item icon Letter to client enclosing draft affidavit
    • Item icon Letter to client enclosing affidavit for signing
    • Item icon Position statement (Estate less than $750K)
    • Item icon Example content - Affidavit of plaintiff's solicitor re costs
    • Item icon Communicating with the estate
      The client may not know who the executor or administrator is, or if the estate has a solicitor. If the client cannot find this out, then a search can be made at the Probate Office of the Supreme Court to see if a grant of probate is pending or has been made. These lists are available online. See ...

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    • Item icon Supreme Court Vic Probate Registers - Application, Caveat, Wills Indices
    • Item icon Initial letter to estate solicitor
    • Item icon Initial letter to executor OR administrator
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon Confidentiality deed
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
  • Folder icon B. Settling the matter
    • Item icon When to negotiate
      Mediation is compulsory in these cases once proceedings are commenced. The court will require the parties to attend mediation. However, even before proceedings are commenced attempts can be made to resolve the claim. There is a positive obligation on the executor or administrator of an estate to ...

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    • Item icon Mediation
      Mediation is virtually compulsory after proceedings are commenced but can be conducted by agreement at the parties’ expense – often at the estate’s expense – before proceedings are commenced. Usually, a matter will not be set down for hearing unless it has already been to mediation before a private ...

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    • Item icon Tips for effective negotiation
      Disclose the plaintiff’s case The only genuine and effective way to negotiate for a plaintiff in a family provision case is to prepare and serve on the estate’s representative an affidavit or statement position of the plaintiff, setting out the detail of the plaintiff’s claim – that is, all of the ...

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    • Item icon Calderbank letter
    • Item icon Costs disclosure before settlement
      See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...

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    • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
    • Item icon Mechanics of settlement
      Claims can be settled in several ways, each with different tax implications. Bequests under a will are not subject to tax. Family provision orders made by a court take effect as though they were a bequest under the will, so no tax is payable. Claims settled prior to the commencement of proceedings ...

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    • Item icon Letter to client enclosing settlement deed
    • Item icon Deed of settlement of a claim
    • Item icon Deed of family arrangement
    • Item icon Deed of family arrangement - Life tenant and remainderman
    • Item icon Authority to settle and receive
    • Item icon Direction to pay and authority to receive
    • Item icon Clause - Consent orders for provision
    • Item icon Letter reporting to plaintiff on settlement
  • Folder icon C. Going to court
    • Item icon Choice of court
      This commentary focuses on procedure in the Supreme Court. Filing in the County Court can be quicker and cheaper. Proceedings commenced in the County Court may be referred to the Supreme Court if that jurisdiction is more appropriate.

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    • Item icon Common Law Division Standard Orders Booklet – County Court Victoria
    • Folder icon If required - Brief to counsel
      • Item icon Brief to counsel - Family provision claim
      • Item icon Example content - Brief to counsel - Family provision claim
      • Item icon Brief to counsel for contested application for probate claim (prompt)
    • Item icon Time for bringing the claim
      Proceedings must be commenced within six months after the date of the grant of probate or of letters of administration: s 99 of the Administration and Probate Act 1958. The time for making the application may be extended for a further period as the court thinks necessary, however the ...

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    • Folder icon If required - Litigation guardian
      • Item icon Parties under a legal incapacity
        Where the plaintiff is a person under a legal incapacity they may not carry on proceedings except by their litigation guardian: r 15.02(1) and (2) of Supreme Court (General Civil Procedure) Rules 2025. Unless the court orders otherwise, the litigation guardian of a person under a legal ...

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      • Item icon Consent to act as litigation guardian
      • Item icon Solicitor's certificate - Appointment of litigation guardian
      • Item icon Order approving compromise of claim of minor (Supreme Court)
      • Item icon Order approving compromise of claim of minor (County Court)
      • Item icon Minutes of Orders for Part IV/TFM Application for Approval of Compromise
    • Item icon Grant of probate or letters of administration for the purpose of the proceedings
      Family provision applications are made following the grant of probate or letters of administration. The time limit for claims runs from the date of grant, not the date of death. There can sometimes be a stand-off if the executor is reluctant to apply, or various people might be able to make an ...

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    • Item icon Commencing the claim
      Commence proceedings within six months of the date of grant of probate by filing an originating motion seeking provision under Part IV of the Administration and Probate Act 1958. Where this period has passed the plaintiff will need to seek an extension: see s 99 of the Administration and ...

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    • Item icon Overview and limitation periods
      Until the introduction of testators’ family maintenance legislation in New Zealand at the start of the twentieth century, and its speedy adoption in Victoria in 1906, and then throughout the Australian states and ultimately England, there was no way by which a disappointed dependant could claim ...

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    • Folder icon Certifications
      • Item icon Certification of prior overarching obligations certification
      • Item icon Proper Basis Certification
    • Item icon Originating motion between parties where commenced under Rule 45.05
    • Item icon Originating motion between parties
    • Item icon Clause - Originating motion
    • Item icon Originating motion in a testator family maintenance claim (prompt)
    • Item icon Letter serving originating motion on solicitor for the estate
    • Item icon Letter serving originating motion personally on executor
    • Item icon Letter to process server
    • Item icon Affidavit
    • Item icon Clause - Affidavit of service - Originating process
    • Item icon Letter to client after filing claim
    • Item icon Following commencement – Prior to first directions hearing
      Pursuant to r 16.06 Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, the plaintiff should issue a summons for the first directions hearing within seven days after the time for an appearance to be filed. Paragraph 7.3 of Practice Note SC CL 7 requires that, prior to the ...

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    • Item icon Letter to estate solicitor before first directions hearing
    • Item icon First directions hearing date
      On the first hearing date metropolitan matters will be listed before an associate judge in the courts on the ground floor at 436 Lonsdale Street, Melbourne. Procedure in regional areas may vary and should be clarified with the court in advance where required. By 2 pm on the Friday prior ...

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    • Item icon Minutes of Part IV/TFM Orders - First Directions Hearing
    • Item icon Letter to client after first directions hearing
    • Item icon Letter to client enclosing estate affidavits
    • Item icon Letter to potential additional defendants
    • Item icon Evidence of the value of real property
      The court does not generally require valuations of real property for the purpose of the proceedings and certainly does not want expert competing valuation evidence. Market appraisals are sufficient, including appraisals of the cost of purchasing a suitable home for the plaintiff, if that is the ...

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    • Item icon Letter to real estate agent seeking market appraisal of real property
    • Folder icon If required - Gathering and exchanging evidence
      • Item icon Discovery
        See Originating process in the Supreme Court Civil Litigation (VIC) guides for further commentary generally on the distinction between proceedings commenced by writ and originating motion. Discovery is not available as a matter of course in family provision cases, as they are commenced by ...

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      • Item icon Subpoena
        A subpoena may be served on a third party to provide documents at trial, or to the Prothonotary before trial, or to give evidence. A subpoena may be served on a party as a substitute for discovery. A subpoena may be set aside as an abuse of process if it is directed to obtain documents, discovery ...

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      • Item icon Notice to produce
        One way of dealing with challenges to the veracity of statements in affidavits is to serve a notice to produce on the relevant party, requiring production at trial of documents referred to in their affidavit. Where such documents are not referred to, serve a notice to produce listed documents. See ...

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      • Item icon Notice to produce
      • Item icon Affidavit
      • Folder icon Subpoenas
        • Item icon Subpoena both to attend to give evidence and to produce
        • Item icon Subpoena both to attend to give evidence and to produce (County Court)
        • Item icon Subpoena for production to the prothonotary
        • Item icon Subpoena for production to registrar (County Court)
        • Item icon Subpoena to attend to give evidence
        • Item icon Subpoena to produce
        • Item icon Subpoena to produce (County Court)
    • Item icon Second directions hearing
      If the matter does not settle at mediation, the mediator will file a certificate to that effect, and the matter will be listed again for final directions. At this second hearing, parties may seek leave to file additional evidence, prompted by the mediation or discussions. Directions may be given to ...

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    • Item icon Letter to witness enclosing affidavit for signing
    • Item icon Example content - Plaintiff's position statement for hearing
    • Item icon Plaintiff position statement in a testator family maintenance claim (prompt)
    • Item icon Chronology
    • Item icon Outline of submissions
    • Item icon Outline of submissions in a testator family maintenance claim (prompt)
    • Item icon Costs disclosure before settlement
      See 101 Costs Answers for more information on costs disclosure generally. In litigation matters, the lawyer’s disclosure obligation extends to giving the client a reasonable estimate of the costs that will be payable if the matter is settled, including any costs of another party that are likely to ...

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    • Item icon Costs orders
      The usual costs orders for an unsuccessful party in civil litigation will apply, with the likely result that an unsuccessful applicant will not receive their costs from the estate and may even be required to pay the estate’s costs. No provisions in the Act specifically deal with costs. provides ...

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    • Item icon Procedure following an order in favour of the plaintiff
      Rule 16.10 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 provides for what happens after an order is made in favour of a successful plaintiff:

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    • Item icon Appeals
      In the Supreme Court an appeal can be made within 28 days against the decision of a single judge to the Court of Appeal under s 14B of the Supreme Court Act 1986 (Vic) and Order 64 of the Supreme Court (General Civil Procedure) Rules 2025 by filing an application for leave. The same ...

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    • Item icon Application for leave to appeal
  • Folder icon D. Finalising the matter
    • Item icon Letter to client enclosing settlement deed
    • Item icon Authority to settle and receive
    • Item icon Direction to pay and authority to receive
    • Item icon Letter to plaintiff finalising the matter
    • Item icon Letter to client finalising the matter - Successful application
    • Item icon Letter to client finalising the matter - No payment
    • Item icon Example invoice incorporating notification of client's rights - VIC
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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