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

Are You an Eligible Person?

The threshold question is eligibility. Only a person listed in section 90 of the Act can bring a claim. The categories include:

• the deceased's spouse or domestic partner at the date of death;
• a former spouse or former domestic partner in defined circumstances (typically where property proceedings were not finalised);
• the deceased's child (biological or adopted), including an adult child;
• a stepchild (broadly defined);
• a registered caring partner;
• an assumed child, in defined circumstances;
• a grandchild in defined circumstances;
• the spouse or domestic partner of a deceased child, in defined circumstances; and
• a member of the deceased's household under s 90(k) (assessed together with the dependency threshold below).

Being in a section 90 category is only the entry point. For applicants in categories (h)–(k) — which include grandchildren, the spouse or partner of a deceased child, an assumed child and a household member — section 91(2)(b)imposes an additional threshold: the applicant must establish they were wholly or partly dependent on the deceased for their proper maintenance and support at the relevant time. Applicants in categories (a)–(g) (spouses, domestic partners, former partners in defined circumstances, children, stepchildren and registered caring partners) are not subject to that separate dependency requirement, though dependency remains relevant to the merits under section 91A.

For a fuller treatment of eligibility, see our companion article, Family Provision Claims in Victoria: Who Can Challenge a Will?

The Six-Month Time Limit

The applicant must file the originating process in the Supreme Court or the County Court of Victoria within six months of the date on which the grant of probate or letters of administration was made (s 99(1)). The clock runs from the grant, not from the date of death, and not from the date the applicant becomes aware of the Will or of the grant. Where an application for probate has not yet been made, the clock has not yet started; but the safest posture once a grant is made is to treat six months from the grant as an absolute deadline.

The Court has a discretion under section 99(2) to extend time, but that discretion is confined by two important limits: an extension application must be made before the estate has been finally distributed (s 99(3)); and an extension or order made on the application does not disturb any distribution properly made before the extension application (s 99(4)). Extensions are always discretionary and evidence-dependent. For the detailed rules see our article on time limits for family provision claims in Victoria.

The Legal Test: Moral Duty and Adequate Provision

The Court's power, threshold conditions and quantum limits sit in section 91 of the Administration and Probate Act 1958 (Vic). Two linked questions frame the merits:

1. Did the deceased have a moral duty to provide for the applicant's proper maintenance and support?
2. If so, did the actual distribution of the estate (by the Will, or on intestacy) fail to make adequate provision for that maintenance and support?

The mandatory and permissible factors the Court weighs sit in section 91A, which lists the applicant's family or other relationship with the deceased; the applicant's needs, financial resources, earning capacity and any physical, mental or intellectual disability; the size and nature of the estate; contributions the applicant made to the estate or to the deceased's welfare; competing obligations to other people; benefits previously provided by the deceased; the applicant's age, character and conduct; the deceased's reasons for the distribution (including any written statement); and any other matter the Court considers relevant. "Adequate provision for proper maintenance and support" is not a mechanical formula; the outcome is intensely fact-specific.

Gathering the Evidence Bundle

A well-run claim rests on three linked bodies of evidence:

1. Relationship evidence — marriage certificate, birth certificate, evidence of dependency, evidence of household membership, correspondence, photographs and, where relevant, statutory declarations from third parties who observed the relationship;
2. Needs evidence — current financial statements, three years of tax returns, bank statements, superannuation balances, loan statements, medical reports for any relevant health condition, and — where earning capacity or health is in issue — expert reports;
3. Merits evidence — history of the relationship, contributions made to the deceased's welfare or to the estate's assets, any competing claims and any written reasons the deceased left about the distribution.

The Letter of Claim

The letter of claim is the applicant's opening move. It is addressed to the executor (or administrator), sets out eligibility, summarises the applicant's needs, articulates the moral-duty and adequate-provision case, references the supporting evidence (attached or available on request), and proposes a resolution. A well-drafted letter of claim invites early mediation and often resolves the matter without proceedings. A poorly drafted one leaks weakness and hardens executor positions.

Compulsory Mediation and Settlement

Mediation is essentially compulsory in Victorian estate litigation. In most cases the parties mediate before filing, and the Court also orders judicial mediation after proceedings have commenced. Mediations typically resolve on a lump sum (paid from the estate at settlement or from an immediate distribution), varied provision from the estate, transfer of specific assets, or a combination. For the role of mediation in family provision matters see our companion article, mediation in Victorian estate litigation.

If the Matter Does Not Settle: The Court Process

If mediation fails, the matter proceeds through the estate list of the Supreme Court or the County Court, as appropriate. Common steps include filing the originating process and initial affidavit, exchange of further affidavits, disclosure of estate accounts, expert reports where required, judicial mediation, directions hearings and, if still unresolved, trial. Even claims that do not settle at pre-litigation mediation frequently settle at judicial mediation once the evidence exchange has occurred.

Costs — The Current Position

Costs no longer flow automatically from the estate. Since the decision in Underwood v Gaudron and later authority, the Court will regularly order costs against an unsuccessful applicant — particularly where the claim was weak, was pursued disproportionately or where the applicant refused a reasonable settlement offer. Successful applicants generally recover their costs on a party-party basis; executors are almost always entitled to indemnity costs from the estate for defending in good faith. A well-timed Calderbank offer is often the single most important costs tool in the proceeding. See also costs in contested will proceedings in Victoria.

Interaction With Other Proceedings

A family provision claim can sit alongside other estate proceedings — a probate caveat challenging the validity of the Will, a testamentary-capacity dispute, or a claim about executor conduct. These interact in important ways: a successful capacity challenge may extinguish the family provision claim altogether (because a different Will or the intestacy rules then govern), and a caveat can affect the timing of the six-month clock. Coordinated advice matters.

Superannuation, Jointly-Owned Property and 'Non-Estate' Assets

An important limitation on family provision claims in Victoria is that only assets that form part of the deceased estate can be ordered as further provision. Superannuation paid directly to a nominated beneficiary, jointly-owned property that passes by survivorship, assets held on trust and some insurance proceeds are usually not part of the estate and are not available. Victoria does not have a full 'notional estate' jurisdiction of the kind that operates in New South Wales. Careful analysis of which assets fall inside the estate — and which do not — is essential before proceedings are commenced.

Common Applicant Mistakes

Common mistakes we see include: leaving the claim too late and missing the six-month deadline; failing to gather needs evidence before sending the letter of claim; overstating the claim quantum and losing costs protection; refusing a reasonable settlement offer and being ordered to pay costs; treating superannuation and jointly-owned property as estate assets; and running the claim as a family grievance rather than a legal proceeding.

How Parke Lawyers Can Help

Parke Lawyers advises applicants and executors across Victorian family provision claims. Our estate litigation and TFM claims team handles the eligibility and merits analysis, the evidence bundle, the letter of claim, mediation and settlement, and all stages of Supreme Court or County Court litigation where required. Our probate and estate administration team coordinates parallel administration issues so that distribution timing, tax and beneficiary communications are managed together with the litigation.

Frequently Asked Questions