VIC Grandmother Died Without Will - How Do We Claim Deceased Estate?

[Sarah1501]

My Grandmother recently passed away without a will. State Trustees were in charge of all her finances and such when she died, according to my aunt, her deceased estate is to be split 3 ways between her children.

My brother and I were raised by our grandmother, she was our legal guardian and our parents gave up their parental rights to us. She is the only parent we have ever known and I looked after her when she became ill and made decisions for her as her next of kin.

I am wondering if we are entitled to anything from her deceased estate and, if so, how do we go about trying to claim it?

 

[James D. Ford - Solicitor]

Hi Sarah

I assume your Grandmother lived and passed away in Victoria.

As she died without a Will, she has dies intestate, and the Administration & Probate Act (Vic)1958 determines how her estate is to be divided.

Administration & Probate Act (Vic) - SECT 52
Distribution on intestacy
....
(f) Subject to the above-mentioned rights such estate or the portion thereof to which these rights do not extend shall be distributed in equal shares among the children of the intestate living at his or her decease and the representatives then living of any children who predeceased the intestate.

Therefore, whether you are entitled to a share of the estate, as determined by the legislation, is determined by what the definition of children includes... and failing this... if you qualify as eligible persons, your and your brother could make a Family Provision Claim.

I will revert back to you later, with regard to the above, and my thoughts regarding your situation.

Kind regards

 

[James D. Ford - Solicitor]

Hi Sarah

1. Re: Potential right to a share of the estate as Children

With regard to the definition of "children" in the Vic legislation

By legal guardian... (plus your parents giving up their parental rights)...

What exactly do you mean?

Did your grandmother legally adopt you?

If not, please explain exactly what you mean by legal guardian.. Do you mean permanent carer? Please provide more information.

2. Re: Potential Family Provision Claim

You both qualify as eligible persons...

"eligible person" means—
...
(i) a grandchild of the deceased;

But for the Court to make any orders to provide for you both, you will need to show... you were at least partly dependent on the deceased for your proper maintenance and support...

ADMINISTRATION AND PROBATE ACT 1958 - SECT 91
Court may make family provision order
(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 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

(ii) the operation of Division 6 of Part I; or

Note

Division 6 of Part I contains the intestacy provisions.

Please let me know if you have any questions.

Kind regards

 

[Sarah1501]

Hi, we were never legally adopted but by legal guardian I mean she was our fulltime carer. She paid for our schooling, clothes and food. She made medical decisions for us. She also claimed a parenting payment and family tax benefit payment for us through Centrelink. When I turned 16, it was her income and assets that were tested when I applied for my own study payment

 

[James D. Ford - Solicitor]

Hi Sarah

The matter will require more legal research before any firm conclusions can be made...

ADMINISTRATION AND PROBATE ACT (VIC) 1958 - SECT 3
Definitions

(1) In this Act unless inconsistent with the context or subject-matter—
...
"parent" of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident;

There is no definition that I can find of "child", or "children"... but the above would indicate children who are/were in permanent care, and are/were ordinarily resident with their permanent carer, could be considered to be in a parent, child relationship for the purposes of the Act.. and if so... a submission of a right to distribution amongst children pursuant to s52 might be able to be made...

In the alternative:

I have copied the below from a Victorian State Government Website:

"What legal issues are involved?
When you adopt a child, he or she becomes legally your child. A new birth certificate is issued in your surname and the child automatically assumes the same rights and privileges as a birth child, including the right of inheritance. The legal tie with the child’s birth parents ceases to exist, although they do have a right to ongoing information and/or contact with the child.

This is not the case with children in permanent care. You have custody and guardianship, but there are still legal ties to the birth parents, as the birth certificate is not automatically changed and there are no automatic inheritance rights. It is still possible for the child to inherit from you, but you would need to do so in a formal legal document such as a will. The child’s name can be legally changed in circumstances when all parties consent to the change, but in the meantime the child can informally use your surname."

As you can tell the State Government considers there to be legal differences for children with respect to inheritance... between adoption and permanent care...

Given that your parents gave up their parental rights... can you tell me if your birth certificates were also changed? Or if they stayed the same?

Kind regards

 

[Sarah1501]

My birth certificate was never changed. My surname is my Father's surname which is also my Grandmother's.

 

[James D. Ford - Solicitor]

Hi Sarah

I assume your Grandmother passed away in 2015 - what was the date?

Resolving the definition of Children under the Act

My understanding is that unless we can obtain a legal opinion to the contrary, as your birth certificate was never changed, and you were not legally adopted... if I refer to the Status of Children Act (Vic) 1974... my understanding is that being a child under permanent care, the Government advice above appears correct, in that you do not obtain "automatic" inheritance rights.

Being under permanent care, by itself, does not appear to be enough to support an application to have the Supreme Court make a declaration of parentage.

Therefore, in my opinion your best course of action, is as an eligible person to make a family provision claim.. as (i) grandchild (if you can prove you were dependent upon the deceased at the date of her death) and/or (g) refer below... which does not appear to require that you show dependency as at the date of death.

Additional eligible person category (g)
Next looking at the categories of eligible persons who can make a Family Provision Claim, it appears you would also be eligible under the following section:

(g) a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (d);


Kind regard