When a loved one dies, it can make a stressful time even more challenging to discover that you have been left out of the Will.  Nicholas Parker explains your options.

In Victoria, a claim seeking provision or further provision from a deceased estate is known as a Testator’s Family Maintenance (TFM) Claim, a Family Provision Claim or as a Part IV Claim (as the claim is made pursuant to Part IV of the Administration and Probate Act 1958 Vic (‘the Act’).

These claims are made on the basis that the deceased had a moral duty to provide for the claimant’s proper maintenance and support and the distribution of their estate (either pursuant to the Will, or if there is no Will upon an intestacy) fails to make adequate provision for their proper maintenance and support.

Eligibility

Only certain people are eligible to make a TFM claim. Section 90 of the Act provides a list of eligible persons, which includes:

• A spouse or domestic partner of the deceased
• A former spouse or domestic partner of the deceased that at the time of the deceased’s death would have been eligible to commence Family Law proceedings
• Children (including adult children of the deceased)
• Stepchildren of the deceased
• A person that for a substantial period of their life regarded the deceased as their parent and was treated by the deceased as their child
• A member of the deceased’s household

Relevant Factors

Section 91A of the Act sets out the factors that the Court may have regard to in considering a claim, including:

• The size and nature of the estate;
• The financial position of the claimant and the other beneficiaries
• The nature of the relationship between the deceased and the claimant
• Any benefits previously given by the deceased to the claimant or the beneficiaries
• The character and conduct of the claimant

Importantly, the Court must have regard to the deceased’s Will and any evidence of their reasons or intentions.

In determining these claims, the Court is not concerned with notions of ‘fairness’ or equitable distribution, but rather the concern is with adequate provision for proper maintenance and support.

If you would like further advice on making or defending a TFM claim, please contact the Wills & Estates Team at Coote Family Lawyers on 03 9804 0035.   

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