Estate litigation lawyers in Melbourne.

A Part IV family provision claim — historically called a TFM claim, for Testator's Family Maintenance — is the most common form of estate litigation in Victoria. An eligible person applies to the Supreme Court for further provision out of the estate on the ground that the deceased had a moral duty to provide for them and that the will (or intestacy) does not make adequate provision for their proper maintenance and support.

The court has wide discretion. It weighs the size of the estate, the nature and length of the relationship with the deceased, the applicant's financial resources and needs, contributions made to the estate, the competing claims of other beneficiaries, and any other matter the court considers relevant. The remedy is usually a lump sum out of the estate; it can also be a specified asset, periodic payments or a life interest.

We act for both claimants and executors, which informs the kind of realistic, strategic advice that only comes from seeing both sides of these matters.

Read the in-depth guide: Family provision claims in Victoria · Defending a family provision claim.

An executor has a duty to uphold the will and to protect the estate for the beneficiaries. That ordinarily includes defending a family provision claim where it is reasonable to do so. The executor must act even-handedly between competing claims, obtain proper advice, consider mediation and avoid unnecessary costs — and is exposed personally if any of those obligations is breached.

We advise executors on the merits of defending, the conduct of the proceeding, the proper use of estate funds and the appropriate approach to settlement. The aim is to bring matters to a principled, proportionate resolution — not to litigate for its own sake.

Related reading: Defending a family provision claim.

A will can be challenged on the ground that the will-maker did not have testamentary capacity, was unduly influenced, or that the circumstances surrounding the preparation and execution of the will were sufficiently suspicious to shift the evidentiary burden to the propounder of the will.

The test for capacity (Banks v Goodfellow) requires the will-maker to have understood the nature of making a will, the extent of their property, the people who might reasonably expect to benefit and to have been free from any disorder of the mind that distorted those considerations. Contemporaneous medical evidence and the solicitor's file are almost always the centre of the case.

Undue influence is coercion — more than persuasion or family pressure — that overbears the free will of the testator. Claims are difficult to prove and usually run alongside a capacity challenge and an alternative family provision claim. For the evidentiary framework and the patterns that commonly attract challenge, see our guide to undue influence and suspicious circumstances in Victorian will disputes.

Read the in-depth guide: Challenging testamentary capacity in Victoria.

Almost every contested estate matter in the Supreme Court is referred to compulsory mediation. The court expects parties to arrive with reliable estate accounts, a clear position and properly-instructed counsel. Most matters resolve at, or shortly after, that mediation.

Where mediation does not resolve a matter, the case moves into a structured procedural pathway — pleadings, discovery, evidence, interlocutory steps, then trial. We prepare every matter to trial-ready standard so that the settlement position is anchored in what the case actually looks like, not in what either side might wish it looked like.

Read the in-depth guide: Mediation in estate litigation in Victoria.

How long do I have to bring a TFM claim in Victoria?

A family provision (TFM) claim under Part IV of the Administration and Probate Act 1958 (Vic) must be commenced within six months of the date of the grant of probate or letters of administration. The court has power to extend time but extensions are not routine and depend on the reason for delay, the strength of the claim and whether the estate has been distributed. Take legal advice as early as possible.

Who is an eligible person?

Eligible person categories in Victoria include the deceased's spouse or domestic partner, former spouse or domestic partner in limited circumstances, children (including adult children in some cases), stepchildren, registered caring partners and certain other dependants. Eligibility is the first gate — being eligible does not by itself entitle a person to provision; the court must also be satisfied that the deceased had a moral duty to provide for the applicant and that adequate provision has not been made.

Will my estate litigation matter go to trial?

Most estate disputes in Victoria settle, often at compulsory mediation. The Supreme Court actively encourages early settlement and the cost consequences of running a marginal claim or defence to a final hearing are significant. We prepare every matter to a trial-ready standard so that the settlement position is informed by what the case really looks like — but we run very few to judgment.

Who pays the costs of an estate dispute?

The position has changed over time. The old assumption that estate litigation costs always came out of the estate no longer holds. The Supreme Court now applies the ordinary 'costs follow the event' principle to most family provision claims, with discretion to vary the order in light of conduct, offers of compromise and the merits of the parties' positions. Costs exposure is a central part of the strategic advice we give from day one.

Can I challenge a will I think was signed when the deceased lacked capacity?

Yes. The validity of a will can be challenged on the ground that the will-maker lacked testamentary capacity at the time the will was made. The test (from Banks v Goodfellow) requires the will-maker to have understood the nature of making a will, the extent of their property, the people who might reasonably expect to benefit, and to have been free from a disorder of the mind that distorted those considerations. Capacity challenges turn on contemporaneous evidence — medical records, the solicitor's file, observations from family, carers and treating practitioners.

Can an executor be removed?

The Supreme Court of Victoria can remove an executor or administrator who has failed to perform their duties, has a serious conflict of interest, has misappropriated estate assets or whose continued involvement is contrary to the proper administration of the estate. Removal is a serious step. The court usually considers less drastic options first — orders for accounts, directions about specific decisions, or judicial supervision — before removing a personal representative.

What if the estate is small?

Estate size affects strategy. Where the estate is small, the costs of litigation can quickly consume the very provision being sought. We are direct about this. Sometimes the right advice is to negotiate, mediate, or in some cases not to bring a claim at all. The point of early advice is to make that judgement before significant costs have been incurred.

Can a stepchild bring a TFM claim?

Yes, in Victoria. Since the 2014 reforms, stepchildren are an eligible person category. The court considers the length and nature of the relationship, the extent of any dependency on the deceased, and the other Part IV factors that apply to all eligible persons.