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Estate Dispute Lawyers in Melbourne, Sydney & Brisbane

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Wills & Estate Disputes Litigation Lawyers

As a general rule, when a person makes a Will they can leave their estate to, whoever they choose. Provided that the person who made the Will (the “testator”) was legally capable of making a Will, and the words used are clear and unambiguous, then there is usually little that can be done to change the Will. This is where an estate lawyer can assist.

There is, however, legislation that allows people to bring a claim in circumstances where the deceased had a moral obligation to adequately provide for someone (such as a family member) in their Will and didn’t.

In those cases, an application to commence “testator family maintenance” (TFM) proceedings can be made. A TFM application asks the Court to alter the distribution of the deceased person’s estate to make adequate provision for persons for whom the deceased should have provided. Testator family maintenance proceedings can also be started where the deceased died intestate (without a Will).

Estate Disputes

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.

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PCL Lawyers has partnered with JustFund to help remove the financial barrier to quality legal advice. Access flexible funding for family law and estate matters — repayable only from the proceeds of your settlement, after your matter is resolved. Speak to our team to learn more.

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If you believe that you might be entitled to make a testator family maintenance claim, you need to act quickly – applications must be made within six months after probate, or letters of administration has been granted. In some cases, an extension of the time limit might be allowed if the estate has not yet been fully administered. It is critical to seek expert legal advice as soon as possible, to avoid missing the time limit.

Our estate lawyers are experienced in acting on behalf of both claimants who have not been adequately provided for, and estate executors and administrators in testator family maintenance matters and can provide you expert advice and assistance.

Speak to one of our estate lawyers in Melbourne, Sydney or Brisbane by calling us on 1300 907 335 or otherwise please complete the enquiry form on this page.

Frequently Asked Questions

Who can challenge a will in Victoria?

Only eligible persons mentioned under section 90 of the Administration and Probate Act, 1958 can challenge a will.
The eligible person is primarily the one whom the deceased owed a moral duty of support, which includes:

  • A spouse or domestic partner of the deceased
  • A former spouse or former domestic partner (in certain circumstances)
  • Children of the deceased, including biological, adopted, or stepchildren who are:

    • Under 18 years old
    • Full-time students aged 18 to 25
    • Children with a disability
  • A person who was treated by the deceased as their child
    (with the same age conditions above)
  • Adult children or stepchildren in some circumstances
  • A registered caring partner
  • Grandchildren
  • The spouse or domestic partner of the deceased’s child
    (in limited circumstances)
  • A person who was a member of the deceased’s household

What is a testator family maintenance (TFM) claim?

The testator family maintenance claim or the family provision claim is a legal claim made by a family member or dependent who believes that the deceased family member didn’t leave them adequate financial support in their will.  

They file an application in the Supreme Court of Victoria asking the court to review the will and order a redistribution of the estate if adequate provision was not made.

How long do I have to challenge a will in Australia?

You can challenge the will within 6 months from the date of probate or letters of administration are granted as stated in section 99 of the administration and probate act, 1958. The time can be extended in case the court considers it appropriate after hearing the affected parties.  However, the application for extension should be made before the final distribution of the estate.

What does the Court consider in an estate dispute?

The court, while deciding any estate dispute, considers the reason the deceased may have to divide the estate in that way and any available evidence showing what the deceased intended regarding financial support for the claimant. The court further considers the following factors: 

  1. Intentions of the deceased
  2. Total value and type of assets within the estate
  3. Financial position of the deceased
  4. Relationship with the deceased
  5. Needs of other beneficiaries
  6. Age, health or any physical or mental disability of the claimant or any beneficiary
  7. Any financial assistance, gift or property previously by the deceased to the claimant.

How much does it cost to contest a will?

The cost of contesting a will in Australia depends on various factors including the size and complexity of the dispute, and most importantly, whether the parties settle the matter through mediation or proceed to a court hearing. 

If a matter proceeds to a full court hearing, costs can exceed $75,000 due to expert evidence, attorney’s fees, court expenses etc. In such cases, it is highly advised to get an initial consultation with an experienced wills and estate lawyer in Australia to get an estimate of the legal cost based on circumstances of the estate and the dispute.

Can I challenge a will if I’m not a blood relative?

Yes. In Victoria, a person doesn’t need to be a blood relative to challenge a will. Some non-relatives who were members of the deceased household or meet eligibility criteria under Administration and Probate Act 1958 can challenge a will. This may include a former spouse, stepchild, registered caring partner, domestic partner, etc.

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