Contested Wills & TFM Claims

A family provision claim — historically called testator family maintenance, or TFM — accepts that the will is valid but argues the deceased failed to make adequate provision for the proper maintenance and support of an eligible person. The jurisdiction is in Part IV of the Administration and Probate Act 1958 (Vic).

Eligible persons are defined in section 90. They include the deceased's spouse or domestic partner at the date of death, former partners in defined circumstances, children (including adult and adopted children), stepchildren in defined circumstances, registered caring partners, grandchildren who were wholly or partly dependent on the deceased, and other dependants who were members of the deceased's household.

Section 91A sets out the factors the Court considers — the applicant's financial resources and needs, the size and nature of the estate, competing claims, the nature and length of the relationship, contributions to the estate or the deceased's welfare, age and health, and any provision made during the deceased's lifetime. For adult children, the additional moral duty consideration applies.

A validity challenge attacks the will itself rather than the provision it makes. The common grounds are lack of testamentary capacity (the testator did not understand what they were doing), lack of knowledge and approval (the testator did not know or approve the contents), undue influence (the will was procured by coercion), fraud or forgery, and failure to comply with the execution requirements in the Wills Act 1997 (Vic).

The mechanics differ depending on whether probate has been granted. Before the grant, an interested party can lodge a caveat in the Supreme Court Probate Office requiring notice of any application. After the grant, validity is challenged by an application to revoke the grant. Either way, the application is heard in the testator's family maintenance and probate list, often with expert evidence on capacity from geriatricians or neuropsychologists.

The single most important date in a TFM claim is the date of the grant of probate or letters of administration. Time runs for six months from that date. Section 99 allows the Court to extend the 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. As a practical matter, anyone dissatisfied with provision should take advice within weeks of the grant, not months: locating the grant, building the financial case and serving the originating motion within six months requires planning.

We regularly act for executors served with a TFM claim. The immediate priorities are to suspend distribution, preserve the estate, ensure proper records, and obtain an objective assessment of the claim's prospects. An executor's costs are generally recoverable from the estate on an indemnity basis where the executor conducts the litigation reasonably; partisan advocacy for one beneficiary, or unreasonable refusal of sensible settlement offers, can attract personal costs orders.

Beneficiaries are typically not separate parties to a TFM claim but receive notice and may file their own evidence about competing needs, contributions and circumstances. We advise residuary beneficiaries on how their interests will be affected by a claim, when separate representation is worth the cost, and how to participate constructively in mediation.

Some estate disputes are not about the will or provision but about how the estate is being administered. Beneficiaries can apply for orders that an executor pass formal accounts, for the executor's removal and replacement, or for directions on a particular issue. We act on both sides of these applications. The grounds for removal are serious — typically persistent delay, misuse of estate funds, conflict of interest, or refusal to communicate — and the Court does not remove executors lightly. Where the case is made out, the practical solution is often the appointment of an independent administrator de bonis non to complete the administration.

The TFM list of the Supreme Court of Victoria refers claims to compulsory mediation early in the proceeding. The vast majority resolve at or shortly after mediation, typically by a lump-sum payment from the estate together with orders for costs. We prepare every matter as though it will run to a hearing — that discipline is what produces stronger positions at mediation and better outcomes when settlement is reached. Where matters do not resolve, hearings in the TFM list are typically two to five days, with judgment usually reserved.

Estate litigation rewards early action and punishes delay. Six-month time limits are hard, validity challenges become materially harder once an estate has been distributed, and caveats lodged early can prevent a grant from issuing while evidence is gathered. We provide a candid assessment of prospects at the first conference, a clear costs estimate, and a strategy that recognises that almost all of these matters will settle — but on terms shaped by how well the case has been prepared in the months beforehand.