How to Make a Family Provision (TFM) Claim in Victoria

What this guide covers

A family provision claim — still widely called a TFM claim — is an application under Part IV of the Administration and Probate Act 1958 (Vic) for provision, or further provision, out of a deceased estate. Under section 91(1) the Court may order that provision be made out of the estate for the proper maintenance and support of an eligible person.

Section 90 defines the "Court" for Part IV as the Supreme Court or the County Court. That is a different question from the grant of representation itself, which issues from the Supreme Court's Probate Office and starts the clock on the time limit.

This article is the practical, chronological guide for an applicant. It gives a working summary of eligibility and merits, then concentrates on process. Detailed treatment of eligibility and merits sits in family provision claims in Victoria, extensions of time in time limits for TFM claims, the executor's perspective in defending a family provision claim, and costs in costs in contested will proceedings.

Eligible persons under section 90

Only an eligible person may apply (section 90A(1)). The definition in section 90 is a set of lettered categories, not one undifferentiated class of family members, and the category matters later for both thresholds and quantum:

• (a) a person who was the spouse or domestic partner of the deceased at the time of death;
• (b), (c) and (d) a child of the deceased (including an adopted child), a stepchild, and a person who for a substantial period believed the deceased was a parent and was treated as a natural child, who at the time of death was under 18, a full-time student aged between 18 and 25, or a person with the disability defined in section 90;
• (e) a former spouse or former domestic partner who, at the time of death, would have been able to take proceedings under the Family Law Act 1975 (Cth), has not taken or has not finalised them, and is now prevented from taking or finalising them because of the death;
• (f) a child or stepchild not within (b) or (c) — which is where adult children sit;
• (g) a person treated as a natural child in the sense described above, not within (d);
• (h) a registered caring partner of the deceased;
• (i) a grandchild of the deceased;
• (j) a spouse or domestic partner of a child of the deceased (including a stepchild or a paragraph (d) or (g) person) if that child of the deceased dies within one year of the deceased's death; and
• (k) a person who, at the time of death, is — or had been in the past and would likely have become again in the near future, had the deceased not died — a member of a household of which the deceased was also a member.

Two points are commonly misstated. Assumed children sit in paragraphs (d) and (g), not among the household and relationship categories in (h) to (k). Registered caring partners sit in paragraph (h), not among the spouse, child and stepchild categories in (a) to (g).

The section 91(2) thresholds

Section 91(2) is cumulative. The Court must not make a family provision order unless satisfied of each of the following:

1. the applicant is an eligible person;
2. for an applicant within paragraphs (h) to (k), that the applicant was wholly or partly dependent on the deceased for their proper maintenance and support;
3. that at the time of death the deceased had a moral duty to provide for the applicant's proper maintenance and support; and
4. that the distribution of the estate fails to make adequate provision for that proper maintenance and support, whether by the will, by the operation of Part IA (intestacy), or both.

For the dependency threshold, section 91(3) requires the Court to disregard any means-tested government benefits the applicant has received or is eligible to receive.

Category also affects quantum. In determining the amount of provision, section 91(4) requires the Court to take into account the degree of moral duty, the degree to which the distribution fails to make adequate provision, and:

• for applicants within paragraph (f) or (g), the degree to which they are not capable, by reasonable means, of providing adequately for their own proper maintenance and support (section 91(4)(c)); and
• for applicants within paragraphs (h) to (k), the degree of dependency on the deceased at the date of death (section 91(4)(d)), with provision required to be proportionate to that degree of dependency (section 91(5)(b)).

Section 91(5)(a) caps the outcome: an order must not provide more than is necessary for the applicant's proper maintenance and support. Part IV is not a mechanism for equalising a will or for redistributing an estate according to a sense of fairness.

Section 91A: what the Court considers

Section 91A separates mandatory material from discretionary criteria, and the distinction is often blurred.

Under section 91A(1) the Court must have regard to the deceased's will (if any), any evidence of the deceased's reasons for the dispositions in the will, and any other evidence of the deceased's intentions in relation to providing for the applicant.

Under section 91A(2) the Court may have regard to a list of criteria, including the nature and (if relevant) length of the relationship; the deceased's obligations or responsibilities to the applicant, to any other eligible person and to the beneficiaries; the size and nature of the estate and its charges and liabilities; financial resources, earning capacity and financial needs at the time of the hearing and for the foreseeable future; any disability of an eligible person or beneficiary; the applicant's age; contributions not made for adequate consideration to building up the estate or to the welfare of the deceased or the deceased's family; benefits previously given; whether and how the applicant was being maintained by the deceased; the liability of any other person to maintain the applicant; character and conduct; the effect an order would have on other beneficiaries; and any other matter the Court considers relevant.

Section 94 also requires the Court to inquire fully into the estate, and permits it to require the executor or administrator to furnish full particulars and to accept evidence of the deceased's reasons whether or not in writing.

For adult-child claims in particular, need is relevant but not determinative. The Court works through moral duty at the date of death, the adequacy of the provision actually made, the applicant's capacity by reasonable means to provide for themselves, and the competing claims on a finite estate. Outcomes vary widely on the facts, and no reliable percentage or formula can be offered.

What is actually in the estate

An order under section 91 is made out of the estate, so the first quantitative question in any claim is what the estate contains. Assets that commonly fall outside it include:

• superannuation death benefits paid by a fund trustee to a nominated or otherwise eligible beneficiary rather than to the estate — the position depends on the fund's governing rules and the nomination;
• property held as joint tenants that passes by survivorship, which turns on the form of title;
• assets held by a family trust or a company, which turn on the trust deed and control arrangements rather than on the will; and
• life insurance proceeds payable to a nominated beneficiary, which turn on the policy.

Victoria has no notional-estate jurisdiction of the kind found in New South Wales, so those assets cannot be drawn back into the estate for the purpose of a family provision order. They can still be relevant as financial resources of the applicant or a beneficiary under section 91A(2), and the ultimate net value of the estate — after liabilities, tax and the costs of administration — is what any order must come out of.

The six-month period and extensions

Section 99(1) requires an application to be made within six months after the date of the grant of probate of the will or of letters of administration. The period runs from the grant, not from the death, and not from the date the applicant learns of the will or the grant. If no grant has been made, the period has not started.

Under section 99(2) the Court may extend the period, including where it has already expired, if after hearing the parties it thinks affected it considers an extension appropriate. Two limits are important: an extension application must be made before the final distribution of the estate (section 99(3)); and neither the application nor any order on it disturbs a distribution made before the application (section 99(4)).

In practice the Court's discretion turns on matters such as the explanation for the delay, the length of the delay, prejudice to beneficiaries, whether the claim has real merit, and the state of distribution. Detailed analysis of extension applications is in our article on time limits for TFM claims in Victoria.

Negotiations do not stop the period running. A letter of claim, an executor's reply, a mediation date or an exchange of offers has no effect on section 99(1). An applicant who lets the period expire while negotiating must apply for an extension, and may not get one.

Steps A–D: assessment

A. Confirm the grant and the deadline. Search the Probate Office records to confirm whether a grant has been made, its date and its type. Diarise six months from the date of the grant, and work back from that date rather than towards it.

B. Obtain the will, the grant and the inventory. The inventory of assets and liabilities filed with the application for the grant is the starting point for estate value, and the "Inventory value" defined in SC CL 7 determines whether the Supreme Court treats the estate as a small estate.

C. Identify the personal representative and the beneficiaries. Under rule 16.04 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, each personal representative is a defendant unless a plaintiff; if the plaintiff is the sole personal representative, the defendant is a person with a substantial interest in opposing the application. Identify at this stage any child under 18, adult person under disability, or potentially unascertained beneficiary, since SC CL 7 requires the Court to be told about them and their presence affects how a settlement can be finalised.

D. Assess eligibility, thresholds, merits and net estate. Work through the section 90 paragraph relied on, the section 91(2) thresholds that apply to that paragraph, the section 91(4) and 91(5) quantum constraints, the section 91A(1) material and the section 91A(2) criteria, and the realistic net estate after liabilities, tax and administration costs. A claim that cannot be stated in those terms is not ready to be sent to the executor.

Step E: preserving your position

Early distribution is the practical risk in a family provision claim, because section 99(4) protects distributions made before an extension application and section 99A protects a personal representative in defined circumstances.

• Write to the personal representative recording the intended claim and asking to be notified before any distribution. A written notice of intention under section 99A(4) must be signed by the eligible person or their legal practitioner, lapses three months after receipt unless an application has been made to the Court, and cannot be renewed.
• Understand what section 99A does and does not do. It addresses the personal representative's protection on distribution; it does not extend the time limit, and section 99A(5) makes clear that nothing in the section extends the period for making an application without a Court order.
• Do not use a probate caveat as a substitute. A caveat goes to whether a grant should be made and is not a Part IV claim. See probate caveats in Victoria.
• Where the executor has advertised a notice of intended distribution, understand its effect on timing: see notices of intended distribution.

Step F: gathering evidence

Evidence should be proportionate to the claim and to the estate. SC CL 7 warns that substandard, unduly lengthy and argumentative affidavits may attract adverse costs outcomes. A tailored checklist looks like this:

• Eligibility — the documents that establish the section 90 paragraph relied on: marriage or relationship registration records, birth or adoption records, evidence of the household or caring relationship, or evidence of the parental relationship for a paragraph (d) or (g) claim.
• Dependency, only where paragraphs (h) to (k) apply — evidence of financial or other support actually provided by the deceased, and its extent.
• Financial position — current income and expenses, assets and liabilities, bank and loan statements, and superannuation balances. Tax returns are relevant where income or earning capacity is disputed; they are not required in every case as a matter of course.
• Health and earning capacity — medical or allied health material, and expert evidence, only where those matters are genuinely in issue.
• Relationship and contributions — a factual chronology, contributions to the estate or to the deceased's welfare or family, and any support the deceased provided.
• The deceased's intentions — the will, any statement of reasons, and any other evidence of intention, all of which the Court must consider under section 91A(1) whether or not it assists the applicant.

Steps G–H: letter of claim and filing

G. The letter of claim. There is no statutory requirement to write before filing, but a clear letter to the personal representative usually helps. It should identify the section 90 paragraph relied on, the section 91(2) matters, the provision sought, the material relied on, and a proposal for resolution or mediation. It should be accurate and measured: it may later be put before the Court on questions of conduct and costs, and the overarching obligations in the Civil Procedure Act 2010 (Vic) apply to the conduct of the dispute.

H. Decide whether to file despite negotiations. Because section 99(1) keeps running, the decision to file is driven by the calendar and by the risk of distribution, not by the state of negotiations. Filing does not end negotiation; in the Supreme Court it usually accelerates it, because the first directions hearing forces both sides to state a position and to put on evidence.

Step I: commencing in the right court

Section 90 defines the Court as the Supreme Court or the County Court. It is wrong to say that every claim must be commenced in the Supreme Court. Choice of court depends on the estate, the issues, cost and the parties' location, and should be taken on advice.

In the Supreme Court, Practice Note SC CL 7 Testators Family Maintenance List, reissued and commencing on 12 January 2026, governs practice and applies to all proceedings in the List whenever commenced. Its key requirements are:

• List. All TFM applications should be initiated in the Testators Family Maintenance List (paragraph 4.1). Where the majority of witnesses or parties reside in regional Victoria, the application should be initiated in the Civil Circuit List, but is managed in the TFM List and otherwise subject to SC CL 7 (paragraph 4.2).
• Endorsement. Entry into the List is by endorsing the heading of the originating motion, and all subsequent documents, with "Testators Family Maintenance List" (paragraph 5.1). No additional fee is payable for inclusion in the List.
• Initiating document. Applications are commenced under Order 16 of the MCP Rules. The originating motion must state the date of death, the date of the last will (if any), the date of the grant, the plaintiff's relationship to the deceased, the value of the estate as set out in the inventory, and whether the application is made in or out of time (paragraph 6.1).
• Summons for directions. A summons for directions is filed under rule 16.06 of the MCP Rules with a return date no less than 14 days from the date of filing (paragraph 7.1). Rule 16.06 itself requires the plaintiff to apply for directions within seven days after the time limited for appearance, failing which the defendant may apply within 14 days.

Steps J–K: directions and evidence

J. The first directions hearing. By 2.00 pm three business days before the first return of the summons for directions, the plaintiff must file and serve (paragraph 7.3):

• an open position statement where the estate is a small estate, or otherwise an affidavit, stating the facts relied on to establish each of the matters in rule 16.03 of the MCP Rules and, where applicable, the relevant section 91A matters, and annexing or exhibiting the last will, the grant, and the inventory of assets and liabilities. A small estate is defined in SC CL 7 as an estate with an inventory value under $1,000,000, or such other value as published on the List website from time to time, so the current figure should be checked;
• an affidavit of the plaintiff's solicitor stating the solicitor's estimate of the plaintiff's costs, including disbursements, on the standard basis up to the end of mediation, and whether a conditional costs agreement has been entered into and the estimated amount of any uplift fee; and
• the certificates required by Part 4.1 of the Civil Procedure Act 2010 (Vic).

An open position statement is a "with prejudice" document that is to be included in any e-Court book for trial and may be referred to in cross-examination (paragraph 7.4). Non-compliance can lead to the first directions hearing being vacated and relisted, and to argument about the costs of that day, including costs against practitioners responsible for wasting them (paragraph 7.5).

By 2.00 pm three business days before a directions hearing the parties are expected to confer and submit proposed consent orders, or their respective proposed orders, using the Court's pro-forma first directions orders (paragraph 7.6). In any proposed first directions orders the plaintiff must specify the extent of the provision sought or explain why they cannot; a defendant may seek orders about joining a beneficiary as a defendant; and the parties must inform the Court of any child under 18, adult person under disability, or potential unascertained beneficiaries who may be affected (paragraph 7.8). The absence of a response to the plaintiff's costs estimate does not mean it is accepted, and costs remain in the Court's discretion (paragraph 7.9).

K. Evidence and estate information. For a small estate the open position statement will generally stand as the plaintiff's evidence-in-chief at trial (paragraph 8.1). In other estates, evidence-in-chief is generally given on affidavit prepared in accordance with Order 43 of the Supreme Court (General Civil Procedure) Rules 2025 (paragraph 8.2). Before final hearing the parties must identify contested facts and be prepared for witnesses to give oral evidence-in-chief of them (paragraph 8.4). Affidavits confined to the current financial position of the estate are treated separately (paragraph 8.5). Interlocutory applications may be issued with a return date in a List directions day no less than 14 days from filing (paragraph 9.1).

Step L: mediation and offers

Mediation is not universally compulsory in Victorian estate litigation. What SC CL 7 says is that, generally, all TFM applications are referred to mediation (paragraph 10.1), and that the Court may refer a proceeding to a judicial mediation before a judicial officer, or to a mediation before a Specified Court Officer, conducted in accordance with PN SC GEN 6 (paragraph 10.2). Parties may also mediate voluntarily before any proceeding is commenced.

Preparation is what makes a mediation useful: a settled view of the net estate, the applicant's financial position in evidence-ready form, a realistic range rather than a single figure, and clarity about who must consent to any settlement. Without-prejudice communications and Calderbank offers are the ordinary tools for shifting costs risk, and they can operate in either party's favour. See mediation in Victorian estate litigation and Calderbank offers and costs strategy.

Step M: settlement and orders

Settlements are usually structured as a lump sum out of the estate, a transfer of a specific asset, a life or occupation interest, or a combination, with the costs position expressly dealt with. Before agreeing, check the practical consequences with the appropriate adviser: how the settlement is funded, the timing of any sale, the tax treatment of the assets transferred, any duty consequences, and any effect on means-tested entitlements. Those are matters for your accountant, tax agent or financial adviser rather than assumptions built into a deed.

Under SC CL 7 the finalisation path depends on who is affected:

• where all persons affected by the settlement are capable adults and consent, the parties must apply for orders finalising the proceeding on the papers, with the legal representatives confirming that all affected persons are capable adults, using the Court's pro-forma dismissal order (paragraph 12.1);
• where a proposed settlement affects a child under 18, an adult person under disability, or any affected party unable to consent, an approval of compromise must be sought, and the Court's guide for practitioners on approval applications in TFM cases applies (paragraph 12.2); and
• where the parties seek a family provision order by consent under section 91 and all parties are capable adults, the plaintiff's supporting material and the Part 4.1 certificates must have been filed, and minutes of proposed consent orders with complete particulars and disclosures must be submitted (paragraph 12.3).

Where a family provision order is made, section 97 governs its contents: the order must specify the amount and nature of the provision, how it is to be raised or paid and out of which parts of the estate, and any conditions or limitations. Unless the Court orders otherwise the burden is borne proportionately by those beneficially entitled (section 97(2)), and the Court must direct that a certified copy of the order be attached to the grant (section 97(3)).

Step N: trial and judgment

If the proceeding does not resolve, a party seeking a trial listing must use the Court's pro-forma pre-trial directions and trial listing orders, with appropriate modifications, submitted at least three business days before the post-mediation directions hearing (paragraph 11.1). The parties are expected to cooperate to avoid delay and unnecessary appearances (paragraph 11.2).

At trial the Court works through the section 91(2) thresholds, then quantum under sections 91(4) and 91(5), having regard to the section 91A(1) material and any section 91A(2) criteria it considers relevant, and inquiring fully into the estate under section 94. Judgment may order a lump sum or a periodical or other payment (section 96(3)) and may impose conditions, restrictions or limitations (section 96(2)). Costs are then dealt with separately, usually on the material about offers and conduct.

County Court proceedings

The County Court has jurisdiction under Part IV because section 90 defines the Court as the Supreme Court or the County Court. Its procedure is not the same as the Supreme Court's: SC CL 7, the Testators Family Maintenance List and the Order 16 requirements described above are Supreme Court practice and do not apply in the County Court.

County Court family property proceedings are managed within its Common Law Division under that Court's own rules and practice notes, which are amended from time to time. Because the current requirements should be taken from the Court itself rather than from a summary, check the County Court's Family Property List page and its current practice notes before filing there. The detailed roadmap in this guide is written for the Supreme Court.

Process at a glance

Costs

Costs in family provision proceedings are discretionary. They are not automatically paid out of the estate, and there is no rule that a particular party will be protected.

• A successful applicant will often recover costs, but not invariably, and recovery is commonly on the standard basis rather than in full.
• An unsuccessful applicant may be ordered to pay costs, particularly where the claim was weak or was pursued disproportionately to what was at stake.
• A personal representative who defends reasonably is ordinarily indemnified for costs properly incurred, but unreasonable conduct, or running a case beyond what the estate justified, can reduce or displace that.
• Formal offers of compromise and Calderbank offers can shift costs risk in either direction. They are not inherently a defendant's or an executor's tool.
• SC CL 7 requires the plaintiff's solicitor's costs estimate up to the end of mediation at the outset and disclosure of any conditional costs agreement and estimated uplift, while confirming that costs remain in the Court's discretion.

The detailed costs analysis is in costs in contested will proceedings in Victoria and Calderbank offers and costs strategy.

Other estate proceedings

A family provision claim can run alongside other estate disputes, but the interactions are often misdescribed.

• Validity challenges. A challenge based on capacity, undue influence or formal validity asks a different question: which instrument, or the intestacy provisions, governs the estate. Its effect on a family provision claim depends on the outcome. It may change the distribution the claim is measured against, and it may change who is a beneficiary, but it does not necessarily remove the claim. See challenging a will after probate has been granted.
• Probate caveats. A caveat is directed at whether a grant should be made. It is not a Part IV claim and should not be lodged merely to preserve a family provision position.
• Executor conduct and beneficiary rights. Complaints about delay, accounting or administration are dealt with separately from Part IV, although they often affect the practical timetable.

Avoidable mistakes

• Treating negotiations as if they suspended the six-month period in section 99(1).
• Relying on the wrong section 90 paragraph, and so overlooking the dependency threshold in section 91(2)(b) or the section 91(4)(c) requirement for paragraph (f) and (g) applicants.
• Assuming every claim must be commenced in the Supreme Court, or assuming Supreme Court practice applies in the County Court.
• Treating superannuation, jointly owned property or trust assets as estate assets available for an order.
• Filing lengthy, argumentative affidavits where SC CL 7 calls for proportionate material, or missing the 2.00 pm three-business-day deadline.
• Failing to identify a child under 18 or an adult person under disability early, then discovering at settlement that an approval of compromise is required.
• Ignoring offers, or making offers that cannot be evaluated, and losing the benefit of costs protection.

When advice matters most

Advice is most valuable at three points: before the letter of claim, when eligibility, the applicable thresholds and the realistic net estate need to be assessed; before the six-month period expires, when the decision to file has to be made independently of the state of negotiations; and before settlement, when the structure, funding and consequences of the outcome are fixed.

Parke Lawyers acts for applicants and for personal representatives in Victorian family provision claims, through our estate litigation and TFM claims practice, and coordinates with probate and estate administration where the administration and the claim need to be managed together. This article was reviewed by Jim Parke, Lawyer and Chartered Accountant. We work alongside your accountant and financial adviser on the tax and entitlement consequences of a settlement rather than in place of them.

Official sources

Verify the current position against primary and official material rather than secondary summaries, including this article:

• Administration and Probate Act 1958 (Vic) — authorised version; Part IV, including ss 90, 90A, 91, 91A, 93, 94, 96, 97, 99 and 99A.
• Practice Note SC CL 7 — Testators Family Maintenance List — reissued 22 December 2025, commencing 12 January 2026.
• Supreme Court of Victoria — Testators Family Maintenance List — List guidance, pro-forma orders and current small-estate value.
• Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 — Order 16, including rr 16.03, 16.04 and 16.06.
• Supreme Court (General Civil Procedure) Rules 2025 — Chapter I rules, including Order 43 affidavits.
• Civil Procedure Act 2010 (Vic) — overarching obligations and the Part 4.1 certificates.
• Practice Note PN SC GEN 6 — Judicial Mediation Guidelines — judicial mediation and mediation before a Specified Court Officer.
• County Court of Victoria — Family Property List — County Court practice, where a claim is brought there.

Frequently asked questions