Family Provision Claims in Victoria are governed by the Administration and Probate Act 1958 (Vic). These claims allow certain eligible people—such as spouses, children, and dependants—to seek a share, or a larger share, of a deceased person’s estate if they believe they have not been adequately provided for. A common misconception is that these claims are about “fairness” or simply “rewriting the will.” In reality, the law sets a much higher bar: the applicant must prove a genuine financial need, not just disappointment or a sense of moral entitlement.
The Case: Wielicki v Millar
In Wielicki v Millar, the Supreme Court of Victoria considered the claim of Mrs. Michelle Wielicki, who had been married to the deceased for 18 years. Throughout their marriage, Mrs. Wielicki played a significant role as a carer for her husband. Despite this long-term relationship and her contributions, she was left entirely out of his will. Instead, the deceased’s estate was left to a testamentary trust established for the benefit of his daughter from a previous relationship. A testamentary trust is a trust created by a will, which comes into effect upon the testator’s death, often used to provide ongoing financial support or asset protection for beneficiaries.
The Legal Conflict: Moral Duty vs. Financial Need
When considering a Family Provision Claim, the Court undertakes a two-part inquiry:
- Eligibility and Moral Duty: Was the applicant someone to whom the deceased owed a moral obligation to provide for? This often includes spouses, children, and dependants.
- Adequate Provision for Proper Maintenance and Support: Has the applicant been left without adequate provision for their proper maintenance and support?
While the deceased’s moral obligation to provide for a long-term spouse is recognised, the law does not automatically entitle a spouse to a share of the estate. The applicant must also demonstrate a lack of adequate provision—meaning a genuine financial need. The Court made it clear that the statutory requirement of “need” cannot be replaced by a general sense of fairness or moral entitlement.
The Court’s Findings
Mrs. Wielicki’s claim was summarily dismissed—meaning the Court decided the case without a full trial because it was clear she could not succeed. The evidence showed that Mrs. Wielicki was financially independent:
- She was a practising medical practitioner with a stable income.
- She owned property in her own name.
- She had no significant liabilities or debts.
The Court found that, despite her exclusion from the will and her long marriage, Mrs. Wielicki did not lack adequate provision for her proper maintenance and support. The Court emphasised that disappointment or perceived unfairness is not enough—there must be a real financial need. The law protects the right of individuals to distribute their estates as they see fit, unless an applicant can prove genuine need.
Practical Implications for Estate Planning and Litigation
Key takeaways from Wielicki v Millar:
- Financial need is essential: Even spouses must prove they lack adequate provision for their proper maintenance and support.
- Challenging a will is difficult for the financially secure: Applicants with stable incomes, assets, and no significant debts are unlikely to succeed.
- Summary dismissal is a real risk: Claims based solely on disappointment, moral duty, or perceived unfairness—without evidence of need—may be dismissed without a full hearing.
- Testamentary freedom is protected: The law respects the wishes of the deceased, provided no eligible person is left in genuine need.
Conclusion
Wielicki v Millar reinforces that, in Victoria, Family Provision Claims are not about “fairness” or correcting perceived wrongs in a will. The law is clear: unless an applicant can demonstrate a genuine financial need for support, the deceased’s wishes will be upheld. This case serves as a reminder for both potential claimants and those planning their estates that testamentary freedom is the default position—intervention by the Court is reserved for cases of real necessity.
