Contesting a Will in VIC refers to making a Testator’s Family Provision Claim (“TFM Claim”).
In Victoria, if a person has been left without adequate provision from a deceased estate, they may be able to contest the Will. Such an action is called a “Testators Family Maintenance Claim”, or “TFM claim”. On 1 January 2015, changes were made to the Victorian legislation in relation to persons who may be entitled to bring a TFM claim. The changes apply to estates where the deceased died on or after this date.
Each State of Australia has a different set of rules which apply when contesting a Will. There are different time limits and eligibility differs in each state depending on where the deceased died. If the deceased died in Victoria, the information below is relevant.
In Victoria, you may contest a Will if:
- You are an Eligible Applicant; and
- You believe that you have been left without adequate provision. The Court considers a number of factors when ascertaining whether an estate has made adequate provision. (See What Does the Court Consider When Making a Claim). Each case is different on its facts and we recommend that you call us for a free case assessment;
- A TFM Claim is made in Victoria if;
- The Deceased was domiciled in Victoria as at the date of death;
- The Deceased owned real and personal property in Victoria as at the date of their death;
- The person bringing a TFM claim is an Eligible Applicant, as defined under Section 90 of the Administration and Probate Act 1958(VIC);
- The claim is made within 6 months from the date on which probate has been granted to the executor(s) of an estate, or outside of 6 months with special leave to do so from the Supreme Court.
If you are thinking of making a claim or are not sure whether you are eligible to make a claim, you should act immediately and contact our office to speak to one of our lawyers to assess the merits of your claim.
Our lawyers will talk to you about your matter and whether there is a possibility of settling your claim without engaging in protracted legal proceedings. Alternatively, we can start proceedings on your behalf if others named in the Will, or the executor do not wish to negotiate and settle your claim.
Section 90 of the Administration and Probate Act 1958 (VIC) provides the following definition of an Eligible Person in relation to commencing a TFM claim:
- Spouse or Domestic Partner at the time of death. The Spouse must be married to the deceased as at the date of death.
- A Domestic Partner may be in a “registered”, or “un-registered”, relationship with the deceased as at the date of death. The threshold test for establishing a relationship with the Deceased as an unregistered Domestic Partner is whether that person was living with the deceased as a couple on a “genuine domestic basis” pursuant to the Relationships Act 2008. If there is no child from the relationship with the deceased who is under 18 years of age at the date of death, then the domestic partner must have been living for a continuous period of 2 years with the deceased before death;
- Former Spouse or Domestic Partner as at the date of death who was able to take proceedings against the deceased under the Family Law Act and who did not take such proceedings and was prevented by the death of the deceased from taking them, or, who did take proceedings and could not finalise them because of the death of the deceased;
- Carers. A carer can only bring a claim if they are in a “registered caring relationship” as defined under the Family Law Act 1975and that the relationship was with the deceased. A relationship of this nature must not be for a “fee or reward” and between two people who are not a couple or married to each other. The key issue is that the relationship must be registered.
Children are defined as:
- Under 18 years of age; or
- Was a full-time student aged between 18 and 25; or
- Has a disability (as defined in Section 90 of the Administration and Probate Act);
- A step-child, or adopted child of the deceased, subject to the categories listed above. As of 10 May 2017, children who have been brought into a de facto relationship are now deemed to be “stepchildren” of that relationship for the purposes of identification as an “Eligible Person” under Section 90(f) as successfully argued by Armstrong Legal in the matter of Bail v MacKenzie (estate of Ruopp)  VSCA 108, Victorian Supreme Court of Appeal;
- An adult child who has difficulty supporting their financial needs. The adult child claimant must demonstrate the degree to which he or she is not capable by reasonable means of adequately providing for their own proper maintenance and support;
- An “assumed child”. This is where the child was treated by the deceased as a natural child:
Persons who do not fall under the “eligible person” criteria include, but are not limited to, nieces’ nephews, cousins, siblings and housemates.
As a potential claimant’s circumstances vary from matter to matter, we recommend that you contact Berwick Legal Lawyers for a free case assessment.