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Testator's Family Maintenance Claims (Vic)

In Victoria, the Supreme Court evaluates Testators Family Maintenance (TFM) Claims against a range of measures. The court must be satisfied that the claimant is an eligible person, that the testator had a moral duty to provide for the claimant and that the will does not fulfil this obligation. The court may reflect on other factors, depending on the particular circumstances of the case. This article outlines what the court considers when assessing a testator’s family maintenance claim.

What Is A Testators Family Maintenance Claim?

When someone contests a will in Victoria, they file what is known as a Testators Family Maintenance Claim, or as it is also known, a “Part IV claim”. This refers to the legislative provision contained in part IV of the Administration and Probate Act 1958. When a testator has a moral responsibility to financially provide for someone and fails to meet that obligation through the conditions of their will, there is an avenue for redress through a TFM claim. Using this method, the claimant can petition the court for a redistribution of the deceased estate in their favour.

This provision allows eligible people to dispute a testator’s will if they meet certain criteria. The court will only consider a TFM claim from the deceased’s:

  • Current spouse, registered or de facto partner;
  • Former spouse or domestic partner with an unresolved family law action against the deceased;
  • Registered caring partner according to the definition in the Relationships Act 2008; or the
  • Biological child, adopted or assumed child and stepchild.

In addition, the court will entertain a claim from:

  • A spouse or partner of a child of the deceased if the child died within a year of the deceased;
  • A dependent grandchild; and
  • A current member of the deceased’s household, or someone who resided with the deceased and who was likely to cohabitate in the future. This person must be at least partially dependent on the deceased.

What Does The Court Consider?

The factors that the court considers in a TFM claim are listed in several subsections of the Administration and Probate Act 1958. The court determines the merit of a claim and the extent of any provision with reference to:

  • The terms of the deceased’s will, including evidence pertaining to the testator’s reasoning behind bequests, particularly with reference to provision for the claimant.
  • The total value of the deceased estate and the nature of any assets and liabilities.
  • The connection between the claimant and the deceased, and the nature and length of the relationship. This also includes the degree of responsibility that the deceased had towards the claimant and other beneficiaries of the estate;
  • The financial circumstances of the claimant, including their financial needs, and current and prospective earning capacity. The court will also consider the finances of the existing beneficiaries. Possible factors for consideration in this vein include the age of the claimant, other possible future inheritances, and any physical, intellectual or mental disabilities. The court will also take note if there is anyone else who owes maintenance to the claimant.
  • Whether the claimant contributed to the growth of the deceased estate or cared for the welfare of the deceased or their family. It will also be relevant if the deceased had previously given any significant gifts or funds to the claimant or other beneficiaries. It will weigh heavily in the court’s consideration if the claimant was a dependent of the deceased.
  • The character of the claimant and of other beneficiaries.
  • Whether reallocating the deceased estate would adversely affect the bequests to other beneficiaries.
  • Any other factor that the court chooses to consider relevant.

Case Study

In the 2016 decision of Brimelow v Alampi, the testator was a widow with three adult children. She left her estate to one of her daughters, effectively disinheriting both of her other children. In her will, she acknowledged this omission and stated that she made no provision for two of her children because she had no “meaningful relationship” with them. Both children filed a claim against the estate, with one plaintiff settling at pre-trial mediation and the other proceeding to trial.

The court made it clear that while they must have regard to the testator’s reasons to exclude the claimant, they must consider whether the deceased had a moral duty to provide for the plaintiff. The defendant in the case (the sole benefactor of the estate, who was acting as executor of the estate) conceded that the testator did have a moral responsibility to provide proper support to the plaintiff and that the deceased had failed to do so within the terms of the will.

As such, the only issue in consideration during the court hearing was the amount of money that the court should award the plaintiff from the deceased estate. The court noted that the plaintiff was fifty years old and had limited earning capacity and assets, several dependent children and limited other resources. As such, the court considered that the plaintiff was not able to fully provide for her own financial needs. The court awarded her $170,000 and standard costs.

The Supreme Court has great latitude to consider any factor in a TFM claim. The Armstrong Legal contested wills team can counsel you on what the court considers in these cases and advise you whether you have a strong claim against the estate. Please do not hesitate to telephone our offices on 1300 038 223 or contact us to set up an appointment to discuss your legal needs.

Dr Nicola Bowes

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.

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