Victorian Consolidated Legislation

Administration and Probate Act 1958 - SECT 91

Power of the Court to make maintenance order

91. Power of the Court to make maintenance order



(1) Despite anything in this Act to the contrary, the Court may order that
provision be made out of the estate of a deceased person for the proper
maintenance and support of a person for whom the deceased had responsibility
to make provision.

(2) The Court must not make an order under subsection (1) in favour of a
person unless-

   (a)  that person has applied for the order; or





   (b)  another person has applied for the order on behalf of that person.

(3) The Court must not make an order under subsection (1) in favour of a
person unless the Court is of the opinion that the distribution of the estate
of the deceased person effected by-

   (a)  his or her will (if any); or

   (b)  the operation of the provisions of Part I, Division 6; or

   (c)  both the will and the operation of the provisions-

does not make adequate provision for the proper maintenance and support of the
person.

(4) The Court in determining-

   (a)  whether or not the deceased had responsibility to make provision for a
        person; and

   (b)  whether or not the distribution of the estate of the deceased person
        as effected by-

   (i)  the deceased's will; or

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

   (iii) both the will and the operation of the provisions- makes adequate
        provision for the proper maintenance and support of the person; and

   (c)  the amount of provision (if any) which the Court may order for the
        person; and





   (d)  any other matter related to an application for an order under
        subsection (1)-

must have regard to-

   (e)  any family or other relationship between the deceased person and the
        applicant, including the nature of the relationship and, where
        relevant, the length of the relationship;

   (f)  any obligations or responsibilities of the deceased person to the
        applicant, any other applicant and the beneficiaries of the estate;

   (g)  the size and nature of the estate of the deceased person and any
        charges and liabilities to which the estate is subject;

   (h)  the financial resources (including earning capacity) and the financial
        needs of the applicant, of any other applicant and of any beneficiary
        of the estate at the time of the hearing and for the foreseeable
        future;

        (i)    any physical, mental or intellectual disability of any
               applicant or any beneficiary of the estate;

   (j)  the age of the applicant;

   (k)  any contribution (not for adequate consideration) of the applicant to
        building up the estate or to the welfare of the deceased or the family
        of the deceased;

   (l)  any benefits previously given by the deceased person to any applicant
        or to any beneficiary;

   (m)  whether the applicant was being maintained by the deceased person
        before that person's death either wholly or partly and, where the
        Court considers it relevant, the extent to which and the basis upon
        which the deceased had assumed that responsibility;

   (n)  the liability of any other person to maintain the applicant;

   (o)  the character and conduct of the applicant or any other person;

   (p)  any other matter the Court considers relevant.



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