Testator Family Maintenance Claims Explained

Only an eligible person can bring a TFM claim. The categories in section 90 include:

• a spouse or domestic partner of the deceased at the date of death;
• a former spouse or domestic partner of the deceased in defined circumstances (broadly, where the financial relationship had not been finalised);
• a child of the deceased, including an adopted child or a child treated as such (adult children are eligible but face additional considerations);
• a stepchild of the deceased, in defined circumstances involving the deceased's relationship with the stepchild's parent;
• a registered caring partner of the deceased;
• a grandchild who was wholly or partly dependent on the deceased for proper maintenance and support;
• a person who was a member of the deceased's household and wholly or partly dependent on the deceased.

Each category has its own gateway requirements. The most contested in practice is the adult child category: eligibility is automatic, but obtaining an award requires the Court to be satisfied that the deceased had a moral duty to provide.

Section 91A sets out the matters the Court takes into account when deciding whether to make an order and, if so, how much. They include the family or other relationship between the applicant and the deceased; the applicant's financial resources and earning capacity and present and future needs; the size and nature of the estate; the obligations and responsibilities of the deceased to the applicant and to other beneficiaries; any contributions the applicant made to building up the estate or to the welfare of the deceased; the applicant's age, state of health and disability; the character and conduct of the applicant; and any provision the deceased made for the applicant during life.

The Court's task is not to rewrite the will according to what seems fair, but to identify whether the provision actually made falls short of what a wise and just testator would have provided, having regard to those factors. That distinction is why many applicants who feel hard done by nevertheless do not obtain the orders they hope for, and why others — particularly financially vulnerable adult children of substantial estates — do obtain meaningful awards.

A TFM claim must be commenced within six months of the date of the grant of probate or letters of administration. Section 99 allows the Court to extend that period, but extensions are not automatic. The applicant must explain the delay and show that the extension will not unduly prejudice anyone who has acted in reliance on the existing distribution. For practical purposes, an eligible person who is dissatisfied with a will should take advice within weeks of the grant, not months — locating the grant date, building the financial case and serving the originating motion within six months requires planning.

A TFM application is filed in the Supreme Court of Victoria. The originating motion is supported by an affidavit from the applicant setting out the relationship, the applicant's financial position (income, expenses, assets and liabilities), the applicant's needs and any contributions made to the deceased or the estate. The executor files an affidavit exhibiting the will, the grant, the inventory of assets and liabilities and updates on the administration to date.

Other beneficiaries are typically not separate parties but are given notice and may file their own evidence about competing needs and contributions. Where there are children of multiple relationships, financially vulnerable beneficiaries or substantial provision made during the deceased's lifetime, careful preparation of the financial evidence is what wins or loses the case.

The TFM list refers matters to mediation early. Most claims resolve at or shortly after mediation, often by a lump sum paid from the estate together with an order that the applicant's reasonable legal costs (and frequently the executor's costs) are paid from the estate on a particular basis. A small number of claims proceed to a hearing, typically two to four days, culminating in a judgment that quantifies the provision (or dismisses the claim) and deals with costs. The judgment is then implemented by the executor as part of the administration.

For an applicant, the most important early task is gathering evidence: financial documents, communications with the deceased and other family members, evidence of any caring or financial contribution and a clear, honest picture of needs. Inflated claims and over-stated needs are quickly identified and damage credibility.

For an executor, the priorities are to preserve the estate, avoid distribution within six months of the grant, communicate neutrally with beneficiaries, and obtain advice on the strength of the claim before agreeing to settle. Executors are generally protected on costs where they conduct the litigation reasonably, but unreasonable conduct (refusing sensible settlement offers, partisan advocacy for one beneficiary) can attract personal costs orders.