Whereas previously a person claiming a share or a greater share of a deceased's estate had to show sufficient and appropriate need and moral obligation, the new provision sets out 12 factors which the court must consider in determining whether a deceased had 'responsibility' to make provision and whether the provision made (if any) was adequate.

This new provision only applies where a deceased died on or after 20 July 1998.

In Leahey v Trescowthic (unreported, Supreme Court of Victoria, 22 October 1999, Warren J) the grandchildren on one side of the family believed that the deceased favoured the grandchildren on the other side of the family both during his lifetime and in his will.

In order to proceed with their application for further provision from the estate they applied to the court for an extension of time within which to bring proceedings.

Before an extension of time will be given one of the matters a court must be satisfied with is that the applicants in question have an arguable case. An extension will not be granted if it is improbable that the application for further provision will succeed.

In refusing an extension of time Warren J said: 'The fact that the deceased and his wife during their lifetime made generous gifts towards some of the grandchildren, including the plaintiffs and, in particular, made generous contributions towards the education of some of the grandchildren cannot in my view be construed or characterised as an obligation or responsibility on the part of the deceased to any of the plaintiffs'.

Therefore this case, although the estate was valued at over $3 million, a normal, caring and loving relationship between the grandparent and the grandchildren did not give rise to the sort of obligation or responsibility to make provision.