Estate Disputes

As a general rule, when a person makes a Will they can leave their Estate to anyone whom 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, 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).

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; and
• 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.

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 your estate lawyers by calling us on 1300 907 335 or otherwise please complete the enquiry form on this page.