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 (typically dependency);
• the spouse or domestic partner of a deceased child (in defined circumstances); and
• any person who was wholly or partly dependent on the deceased and was a member of the deceased's household.

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 motion in the Supreme Court of Victoria within six months of the date on which the grant of probate or letters of administration was made. 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. In some cases delays in the application for probate delay the start of the six-month clock, but the safest posture is to treat six months from the grant as an absolute deadline.

The Court has a discretion under section 99 to extend time, but extensions are discretionary, evidence-dependent and never guaranteed. Where estate assets have already been distributed, extension applications become materially harder. 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 asks two linked questions under section 91:

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?

'Adequate provision for proper maintenance and support' is not a mechanical formula. The Court weighs the applicant's needs, the size and nature of the estate, competing claims by other beneficiaries, contributions the applicant made, the length and quality of the relationship, and any reasoned statement the deceased left about the distribution. The result 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 Supreme Court Process

If mediation fails, the matter proceeds through the Supreme Court's estate list. Common steps include filing the originating motion 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 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