Estate litigation — when an estate becomes contested
Estate litigation covers any contested dispute about a deceased person's estate. The most common categories are family provision (TFM) claims by eligible persons who say the Will (or intestacy) did not adequately provide for them, challenges to the validity of a Will on grounds of capacity, undue influence or suspicious circumstances, and disputes between executors and beneficiaries about administration of the estate. All three are heard in the Supreme Court of Victoria.
Estate disputes are emotionally hard and procedurally technical. They tend to crystallise long-standing family tensions and they unfold under tight statutory time limits. The right strategy at the start often makes the difference between a settled outcome and a protracted, costly contest. Our Ringwood estate litigation team focuses on resolving estates promptly and proportionately while protecting your underlying entitlements.
Family provision (TFM) claims under Part IV
A family provision claim — historically known as a TFM (Testator's Family Maintenance) claim — is a claim under Part IV of the Administration and Probate Act 1958 (Vic) for further provision out of an estate. Eligibility is defined by statute and is more restrictive than many claimants expect: spouses, domestic partners, children (including adult and step-children in limited circumstances), assumed children, registered caring partners, grandchildren in defined circumstances and certain other dependants may qualify.
The claim must be brought within six months of the grant of probate or letters of administration. A claimant must show both eligibility and that the deceased had a moral duty to provide further for them. The Court considers the size of the estate, competing claims, the relationship between the claimant and the deceased, the claimant's financial resources and needs, contributions to the estate, conduct, age, health and a wide range of other matters.
Defending family provision claims as executor
Executors are required to act neutrally between competing claims on the estate. When a TFM claim is brought, the executor's role is to put the relevant evidence before the Court, defend the estate against unmeritorious claims, and assist the Court to reach a fair decision — not to advocate for one beneficiary over another.
We act regularly for executors of contested estates from our Ringwood office. We prepare affidavit evidence of the estate composition, the relationship between the deceased and the claimant, the deceased's reasons for the dispositions in the Will, and competing claims on the estate. We attend mediation, settle the matter where settlement is appropriate, and run the matter to trial where it is not.
Will validity challenges and probate caveats
A Will can be challenged on a range of grounds: lack of testamentary capacity, lack of knowledge and approval, undue influence, fraud, or non-compliance with the formal execution requirements of s.7 of the Wills Act 1997 (Vic). Where evidence supports a challenge, a probate caveat is lodged to halt the grant of probate while the dispute is investigated.
Capacity disputes often turn on medical evidence — GP notes, hospital records, neuropsychological assessments and treating specialist opinions — combined with witness evidence of the deceased's behaviour and the circumstances in which the Will was made. We work with appropriately-qualified medical and forensic experts and present the evidence so the Court can assess it fairly.
Executor disputes and beneficiary actions
Disputes also arise after the grant of probate. Beneficiaries may seek the removal of an executor under s.34 of the Administration and Probate Act 1958 (Vic) where the executor is failing to act, acting improperly, or in a conflict of interest. They may seek a formal account, demand information, or challenge specific transactions. Executors may seek judicial advice under s.63 of the Trustee Act 1958 (Vic) where a difficult administrative decision needs to be made.
These matters are often resolved by negotiation once the relevant information is shared. Where they cannot be, we act in the Supreme Court of Victoria for both executors and beneficiaries, with a focus on practical outcomes and cost control.
Common situations Ringwood clients bring to us
Left out of a parent's Will
We assess whether an adult child has a viable family provision claim, advise on prospects, and bring the claim within the six-month limitation period.
Step-child or step-parent claim
We advise on the more limited eligibility of step-children and step-parents and the additional thresholds they must meet to qualify.
Executor refusing to provide information
We compel disclosure on behalf of beneficiaries through correspondence, formal accounts and (where required) court applications.
Concerns about capacity or undue influence
We investigate the circumstances in which a Will was made, gather medical and witness evidence and lodge probate caveats where appropriate.
Co-executors who cannot agree
We advise on options including renunciation, removal under s.34 and judicial advice to break the impasse.
Defending the estate against an opportunistic claim
We act for executors defending TFM claims that lack merit, focusing on early evidence to discourage settlement at any price.
Why Ringwood and eastern-suburbs clients choose Parke Lawyers
- Specialist estate litigation experience — TFM claims, will challenges and executor disputes are a core part of our practice, not an occasional file.
- Co-ordinated with the firm's wills and probate teams, so we understand how estate documents are drafted and administered as well as how they are challenged.
- Realistic, written advice on prospects, costs and the likely range of settlement at mediation — not optimistic predictions designed to win the file.
- Local Ringwood meeting room with privacy and accessible parking, plus phone and video meetings for clients who cannot easily travel.
How the legal process works
- 01
Confidential first meeting
We meet to take initial instructions, identify the limitation deadlines and explain prospects, process and indicative costs. We provide written advice after this meeting.
- 02
Evidence gathering
We collect the Will, probate papers, financial information, medical records, communications and witness statements relevant to the dispute.
- 03
Letters and informal resolution
Many claims resolve before proceedings are issued. We open dialogue with the executor or the claimant and exchange information aimed at narrowing the dispute.
- 04
Court proceedings and mediation
Where issues remain we file in the Supreme Court of Victoria. The Court actively encourages mediation; most matters settle at or before mediation. We prepare thoroughly so mediation is productive.
- 05
Trial where unavoidable
Where the matter cannot settle, we run the case to trial with appropriate counsel briefed. We keep you informed of cost exposure at every stage.
When to obtain legal advice
Early advice usually shortens the matter, reduces cost and widens the options available to you. Speak with one of our Ringwood lawyers if any of the following apply:
- You believe a Will is invalid because of capacity, undue influence or suspicious circumstances
- You have been left out of a parent's or partner's Will or received less than you expected
- Probate has just been granted and the six-month TFM claim period is running
- You are the executor of a contested estate and have been served with a claim
- Co-executors are in dispute or unwilling to act
- A beneficiary is demanding information or an account from an executor
- There are concerns about an enduring power of attorney having been misused before death
- The estate includes a family home or business that several beneficiaries want differently dealt with
Related Parke Lawyers resources
Service
Estate Litigation & TFM Claims
Detailed overview of our estate litigation services — bringing and defending family provision claims, will challenges and executor disputes.
Learn moreLocal office
Parke Lawyers Ringwood
281 Maroondah Highway, Ringwood — opening hours, directions and full list of services from the Ringwood office.
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Frequently asked questions
Who can bring a family provision (TFM) claim in Victoria?+
Eligibility is defined in Part IV of the Administration and Probate Act 1958 (Vic). Eligible persons include spouses, domestic partners, children, step-children in defined circumstances, assumed children, registered caring partners, grandchildren who were wholly or partly dependent on the deceased, and certain other dependants. Not every relative qualifies — eligibility is the first issue, and unmeritorious claims are routinely dismissed for lack of standing.
What is the time limit for a family provision claim?+
Six months from the date of the grant of probate or letters of administration. An extension can be granted by the Court in limited circumstances, but it is not a right and should not be relied on. If you are considering a claim, obtain advice well before the six-month deadline.
How does the Court decide a TFM claim?+
The Court considers whether the deceased had a moral duty to provide further for the claimant and, if so, the quantum of provision that should be ordered. It weighs the size of the estate, the claimant's needs and resources, the relationship between the claimant and the deceased, contributions to the estate, competing claims, the conduct of the parties, the claimant's age and health, and any other relevant matter. There is no fixed formula.
Can an adult child bring a claim?+
Yes. Adult children can be eligible claimants, but the Court starts from the position that an adult child capable of supporting themselves is not automatically entitled to provision. The relevant question is whether, in all the circumstances, the deceased had a moral duty to provide further. Health, financial position, dependents, contributions, estrangement and other factors all matter.
What is testamentary capacity and how is it challenged?+
Testamentary capacity is the legal capacity to make a valid Will. The classic test is whether the will-maker understood the nature of the act, the extent of the property, the persons with claims on the estate and was not affected by any disorder of the mind that influenced the dispositions. Challenges are usually supported by medical evidence and evidence from witnesses present at the time the Will was made.
What is undue influence and how is it different from capacity?+
Undue influence requires proof that pressure or coercion overbore the will-maker's free choice. It is a high bar. Capacity is about cognitive ability to make a Will; undue influence is about whether external pressure displaced the will-maker's true wishes. Suspicious circumstances around the making of the Will — for example, where a major beneficiary was involved in arranging or witnessing it — can shift the evidential burden.
How much do estate litigation matters cost?+
Costs depend on the size of the estate, the number of parties, the complexity of the issues and how far the matter runs before settling. Many TFM claims settle at or before mediation, with costs in the low-to-mid five figures for each party. Matters that run to trial are more expensive. We provide written cost estimates at each stage and discuss whether the prospects justify the further cost before each major step.
Who pays the costs in an estate litigation matter?+
The historical position that the estate paid the costs of all parties has been substantially eroded. The modern position is that costs follow the event — the losing party generally pays a contribution to the winning party's costs — and the Court is willing to make costs orders against unsuccessful claimants. Costs risk is a real part of the strategy and we discuss it openly.
Can the matter be settled at mediation?+
Yes — and most matters are. Mediation in estate cases is usually highly effective because the parties are managing finite money, the costs of running to trial are high, and an independent mediator can move the parties past the emotional issues. We prepare for mediation thoroughly so settlement is achievable on terms acceptable to you.
What is a probate caveat and when should one be lodged?+
A probate caveat is a document lodged with the Probate Office of the Supreme Court of Victoria asserting an interest in the estate that requires investigation before probate is granted. It is appropriate where there is a credible basis to challenge the validity of the Will or the entitlement of the named executor. A caveat without proper basis can be removed with adverse costs consequences.
Can an executor be removed?+
Yes — under s.34 of the Administration and Probate Act 1958 (Vic), the Court can remove an executor where it is satisfied that the executor is unfit or unable to act or is otherwise jeopardising the administration of the estate. The Court does not remove executors lightly, and disagreement between beneficiaries and the executor is not itself enough.
Will the matter be heard in Ringwood?+
No. Estate litigation matters in Victoria are heard in the Supreme Court of Victoria (Probate List), based in Melbourne CBD. We act from our Ringwood office and travel to court when required. Most case-management work and mediation is conducted off-site, so you usually do not need to travel to the city at all unless the matter goes to trial.