Share via

There are many misconceptions about what factors will make or break a challenge to a Will.

But it’s not always simple. In this case, heard in Victoria the Court decided that a woman who, for a long time cared for an elderly friend, could be recognised as part of her household, but still not eligible to challenge the terms of the Will.
Olive was elderly and lived on her own, and had no close family. Over a long period of time she was voluntarily cared for by Inise, a woman who often stayed at Olive’s home with her son for several nights a week before returning to her own home.

During this time, Olive provided Inise with financial support that included helping Inise pay her rent and medical bills and paying off her credit card debt.
When Olive was diagnosed with dementia and admitted into aged care, Inise was appointed her administrator and helped take care of selling Olive’s home to fund her aged care place. Inise continued to manage Olive’ financial affairs until Olive died a few years later.

Olive’s Will made no provision for Inise, instead leaving her entire estate to several charities and appointing the partners of a law firm as executors. As a result, Inise made a claim for some provision in the estate on the basis that she was, for all intents and purposes, a part of Olive’s household on the basis of their shared history.

While the executors disagreed, the Court did not: Judicial Registrar Englefield formed the view that Inise could be considered part of Olive’s household and that, even though they no longer lived together, their relationship had endured.

However, that was not enough for a claim against the estate to succeed. Inise was unable to establish that she was financially dependent enough on Olive for the Court to take it into consideration.

Although Inise was at least partially financially dependent on Olive while they physically lived together, under sections 91(4)(d) and 91(5)(b) of the Act, any order for further provision for a member of a household must be proportionate to the degree to which that member was financially dependent on the deceased at the time of their death, meaning that “if there is no dependency at the time of death, the Court is bound to determine that there is no degree of dependency and, proportionately, no provision may be ordered.” For this reason, Judicial Registrar Englefield found that Inise’s claim had no prospect of success.
This case is a reminder that, in Victoria, a member of a household is not guaranteed to succeed in a claim for further provision simply because they were financially dependent on the deceased at some point in time.

Read the full case Meuleman; Quminakelo v Amidzic [2020] VSC 376 at