Contested Wills & TFM Claims Lawyers, Melbourne

Contested wills and family provision claims

In Victoria, a person who considers that a deceased had a moral duty to provide for them, but did not do so adequately, may apply to the Supreme Court for a family provision order under Part IV of the Administration and Probate Act 1958 (Vic). Historically described as a Testator Family Maintenance (TFM) claim, the modern jurisdiction permits the Court to order provision out of the estate for the proper maintenance and support of an eligible person, having regard to the matters the Act requires it to consider.

A family provision claim is distinct from a challenge to the validity of the will itself. A claim to set aside a will — on the basis of want of testamentary capacity, want of knowledge and approval, undue influence or fraud — is brought as a probate action and proceeds on different evidence and different principles. We act on both kinds of dispute and, where appropriate, on related applications for the removal of an executor or for directions in the administration of an estate.

Who can make a claim?

Eligibility to apply is defined by section 90 of the Administration and Probate Act 1958 (Vic). Only persons within the listed categories of eligible person may seek a family provision order, and the Court's task differs depending on the category. The principal categories are:

• The spouse or domestic partner of the deceased at the time of death.
• A former spouse or former domestic partner who would have been able to take proceedings under the Family Law Act 1975 (Cth) but for the deceased's death.
• Children of the deceased under 18, full-time students aged 18 to 25, or children with a disability, who are treated as a distinct category to whom the Court must consider ordering provision.
• Adult children of the deceased, whose claims are assessed against the further statutory criteria set out in section 91A.
• Stepchildren, grandchildren and registered caring partners in defined circumstances, including dependency on the deceased.
• Members of the deceased's household who were, or had been and were likely to again be, wholly or partly dependent on the deceased.

Eligibility is the threshold question. It does not, of itself, entitle the applicant to an order — the Court must still be satisfied that the deceased had a moral duty to provide for the applicant's proper maintenance and support, and that the distribution effected by the will (or the intestacy rules) fails to make adequate provision for that purpose.

Time limits for claims

An application for a family provision order must be made within six months of the date of the grant of probate or letters of administration. The Court has a discretion to extend time, but the discretion is not exercised lightly and an application out of time risks the estate having been distributed in the interim. Prospective claimants should obtain advice promptly, and in any event well before the six-month period expires.

Where the validity of the will itself is in issue, a caveat against a grant should be lodged with the Probate Registry before the grant is made. Once a grant has issued, an application to revoke it may be required, with its own procedural and evidentiary burden.

Factors considered by the Court

In deciding whether to make a family provision order, and the amount and nature of any order, the Court is required by section 91A of the Act to have regard to a range of matters, including:

• The nature and length of the relationship between the applicant and the deceased.
• Any obligations or responsibilities of the deceased to the applicant, to other eligible persons and to the beneficiaries of the estate.
• The size and nature of the estate, and the liabilities of the estate.
• The financial resources (including earning capacity) and the financial needs, at the time of the hearing and likely in the foreseeable future, of the applicant and the beneficiaries.
• Any physical, mental or intellectual disability of the applicant or a beneficiary.
• The age of the applicant.
• Any contribution — financial or otherwise — of the applicant to the deceased's property or welfare, for which adequate consideration was not received.
• Any benefits previously given by the deceased to the applicant or to a beneficiary.
• Whether the applicant was being maintained by the deceased before death and, if so, the extent and basis of that maintenance.
• The character and conduct of the applicant.
• The effects an order would have on the amounts received from the estate by other beneficiaries.

The Court weighs these matters in the round. Estate size and competing claims operate as a real constraint: where an estate is modest, the Court is conscious that any order in favour of one party necessarily reduces the entitlement of another, and calibrates relief accordingly.

Executor duties during a dispute

An executor or administrator served with a family provision claim, or on notice of a likely claim, owes the estate a duty to defend it in a measured way. That duty does not require the executor to take partisan positions between beneficiaries; the role is to put the relevant evidence before the Court — the size and composition of the estate, the testator's relationships and stated reasons, and any prior provision — and to act reasonably in mediation.

Executors should not distribute the estate during the six-month claim period under Part IV, and should obtain advice before distributing if they are on notice of a potential claim. We advise executors on the discharge of these obligations, including the appropriate use of section 99A statements, applications for directions, and the protection afforded by advertising under section 33 of the Trustee Act 1958 (Vic).

Defending a claim

An estate's response to a claim should be proportionate to its size and to the merits of the application. Where the claim is weak on eligibility or on the section 91A factors, the estate is entitled to defend it; where the claim has substance, the executor's duty is to engage constructively in mediation. The estate's costs of defending a claim are not automatically borne by the estate — the Court has a broad discretion as to costs under the Act and the Civil Procedure Act 2010 (Vic), and unreasonable conduct on either side is increasingly reflected in costs orders.

We act for executors and for beneficiaries whose interests are affected by a claim. Beneficiaries are entitled to be heard, and in many cases will be separately represented where their interests diverge from those of the personal representative.

Mediation and early resolution

Most Part IV proceedings in the Supreme Court are referred to compulsory mediation, and the majority resolve before trial. A negotiated settlement allows the parties to fashion a result that the Court could not order — for instance, the transfer of a particular asset, retention of a life interest, or a structured payment timetable — and avoids the cost and delay of a contested hearing.

Where appropriate, we advise on pre-litigation settlement, including the use of deeds of family arrangement and informal compromise prior to the issue of proceedings. Early engagement between the estate and a prospective claimant can resolve a dispute on terms that preserve relationships and the value of the estate.

How Hanlons assists

We act on the full spectrum of Victorian estate disputes — from initial advice on eligibility and prospects, through mediation, to Supreme Court proceedings where settlement is not possible. Initial conferences are conducted in our Collins Street office or by telephone or video. We discuss scope and fees at the outset, in writing, and we approach claims with a view to resolving them on commercially sensible terms where the evidence permits.

What to bring

• A copy of the will (and any earlier wills), and the death certificate if available.
• Any grant of probate or letters of administration already issued, with the date of the grant.
• Correspondence with the executor, administrator or estate solicitors.
• A summary of your relationship with the deceased, including dates and any periods of dependency or contribution.
• Information about your current financial circumstances — assets, liabilities, income and reasonable needs.
• Details of any prior provision made by the deceased during their lifetime (gifts, transfers, loans).
• Information about other potential claimants and beneficiaries known to you.
• For executors: an up-to-date statement of estate assets and liabilities, and copies of any claim already notified.

Related services

Estate disputes sit alongside our wills and estate planning and probate and deceased estates practice — the experience of contested matters informs the way we draft wills, and our administration practice means we understand the executor's position from the inside. To discuss a specific claim or potential dispute, please contact our office.