When determining a TFM application, the Court will consider things such as:
- the size of the estate after all debts, funeral costs, and other expenses have been paid (if the estate is not big enough to redistribute, the Court won’t intervene)
- how close the applicant was to the deceased person
- the financial position, financial needs and earning capacity of the applicant
- any gifts or property transfers made by the deceased during the deceased’s life to the applicant or another eligible person
- whether the deceased was providing for the applicant immediately before death
- the character and conduct of the applicant
- any other matter the Court considers relevant.
Not everyone is entitled to challenge a Will. To commence testator family maintenance proceedings, you must meet the definition of ‘eligible person’ under the Administration and Probate Act 1958 (Vic). This definition includes spouses, domestic partners, and children and step-children, as well as persons who are not blood relatives who were members of the deceased’s household. There are several categories under the legislation, so if you are unsure if you might be able to make a TFM claim, it is best to seek legal advice.