Financial Need In A Family Maintenance Claim (Vic) | Armstrong Legal

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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Financial Need In A Family Maintenance Claim (Vic)


In Victoria, an eligible party can contest a will through a Testator’s Family Maintenance Claim. A person who wants to contest a deceased person’s will faces certain obstacles. For instance, even if someone is eligible to make this claim, they also need to prove that they are experiencing financial need. This article looks at the requirement to demonstrate financial need in a Testator’s Family Maintenance Claim (TFM).

Making A Testator’s Family Maintenance Claim In Victoria

When a will is unreasonable, a person can apply to the Supreme Court of Victoria under Part IV of the Administration and Probate Act 1958. In doing so, the claimant states that the testator has a moral duty to provide for their maintenance and advancement in life. Depending on the strength of the claim, the court can choose to overrule the will and redistribute the deceased estate.

There are three main steps to establishing a successful TFM claim. First, the claimant must be eligible to claim by virtue of their relationship with the testator. Second, the testator must have a moral responsibility to make adequate provision for the claimant that is not borne out in their will. The testator may have left the claimant out of the will altogether or allocated an inadequate amount given the claimant’s circumstances. Finally, the claimant must establish that they are experiencing financial need.

How To Establish Financial Need in Family Maintenance Claim

Establishing financial need is crucial when making a Testator Family Maintenance Claim. Someone can establish financial need with ease if they cannot work due to disability, age or involvement in full-time education. The claimant can easily document financial need with medical reports, school and university enrolment records, or Centrelink documentation.

A claimant can prove financial need as long as their means (income or assets) are insufficient to meet their expenses. A claimant does not need to be destitute or unable to meet basic living expenses such as food and housing. A claimant may still be experiencing genuine financial need if they have extensive debts or significant expenses.

With larger deceased estates, even a wealthy claimant can establish financial need. When a testator leaves a substantial estate, it is common for an applicant to claim expenses such as private education for children, overseas family holidays, retirement supplements and “safety net” sums to guard against unforeseen future needs. The benchmark in these cases is the claimant’s accustomed standard of living during the testator’s life.

Financial Need Resulting From Poor Decision Making

In general, the court does not consider whether the claimant is experiencing financial need because of poor decisions (such as incurring significant debt). Even if the claimant is in financial need because of drug addiction or gambling, the court does not attach a moral element to the financial need. However, the court may consider whether the testator had a moral responsibility for the claimant, given the claimant’s conduct towards the testator and any estrangement. If the court finds no moral responsibility, then the claimant’s financial need is irrelevant, and the court will dismiss the claimant’s application.

Family maintenance claim Case Study

It is not sufficient for a claimant to state that they are experiencing financial need. The onus is on the claimant to substantiate their financial need. The case of Re Janson; Gash v Ruzicka [2020] demonstrates the critical importance of documenting financial need. In this case, the defence conceded that the deceased made inadequate provision for the maintenance and support of his daughter. As such, the only question before the court was quantum (that is, how much she should receive). Yet the daughter lost the case in the first instance because she did not provide evidence of her financial need, such as documents showing her current assets, liabilities and expenses. While the Supreme Court did leave open the door for the daughter to file evidence of her financial need later, this result clearly shows the importance of establishing financial need in a TFM claim.

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