Estate Litigation & TFM Claims Lawyers Melbourne

Frequently asked questions.

Plain-English answers to the questions we are asked most often by Melbourne clients.

What is a TFM claim?

TFM stands for Testator's Family Maintenance — the historical name for a family provision claim under Part IV of the Administration and Probate Act 1958 (Vic). A TFM claim is brought by an eligible person who says the deceased's will (or the rules of intestacy) does not make adequate provision for their proper maintenance and support. The court can order further provision out of the estate where it considers the deceased had a moral duty to provide for the applicant.

What is a Part IV family provision claim?

A Part IV claim is the modern statutory family provision claim in Victoria. The court considers the applicant's eligibility, financial resources and needs, the size and nature of the estate, the relationship between the applicant and the deceased, contributions to the estate, the competing claims of other beneficiaries and any other relevant factor. If the threshold is met, the court can order a lump sum, periodic payments or a specific asset out of the estate.

Who can challenge a will in Victoria?

Two different concepts are often confused. A 'challenge' to a will's validity can be brought by anyone with a sufficient interest — typically a beneficiary under an earlier will, or someone entitled on intestacy. A family provision (Part IV) claim can only be brought by an 'eligible person', which generally includes spouses and domestic partners, children (including adult children in some circumstances), stepchildren, registered caring partners and certain other dependants.

Is there a time limit for bringing a claim?

Yes. A Part IV family provision claim in Victoria must be brought within six months of the date of the grant of probate or letters of administration, unless the court extends time. Other estate claims — including challenges to validity, claims against executors and equitable claims — have their own limitation periods. Early advice is critical because evidence and witness recollections fade quickly, and missed time limits can extinguish otherwise strong claims.

Can an executor defend a TFM claim?

Yes. An executor has a duty to uphold the will and to protect the estate for the beneficiaries. That ordinarily includes defending a Part IV 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. We advise executors on the merits of defending, the conduct of the proceeding and the proper approach to settlement.

What if I believe the deceased lacked capacity?

If you believe the deceased did not have testamentary capacity when the will was made, the validity of the will can be challenged. Testamentary capacity 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. Evidence typically includes medical records, the solicitor's file and contemporaneous observations by family, carers and treating practitioners.

What is undue influence?

Undue influence in a will context is conduct that overbears the free will of the testator so that the will reflects the influencer's intentions rather than the testator's own. It is more than persuasion or ordinary family pressure. Undue influence claims are difficult to prove and require careful evidence — often including the circumstances of the will's preparation, the testator's vulnerability, isolation from other family members and the role of the alleged influencer in the will-making process.

Can an executor be removed?

Yes. The Supreme Court of Victoria has power to remove an executor or administrator who has failed to perform their duties, is in serious conflict of interest, has misappropriated estate assets, or where their continued involvement is contrary to the proper administration of the estate. Removal is a serious step and the court will usually look first at less drastic alternatives such as orders for accounts, directions or supervision before removing a personal representative.

Do estate disputes always go to court?

No — most do not. The vast majority of estate disputes in Victoria are resolved by negotiation or at compulsory mediation, often before the costs of a final hearing are incurred. Court proceedings are reserved for matters where settlement is not possible, where urgent intervention is required (for example, to preserve estate assets) or where a contested factual issue such as testamentary capacity needs to be determined on evidence.

When should I obtain legal advice?

As early as possible. Whether you are considering bringing a claim, are an executor who has received notice of a claim, or are concerned about the conduct of a personal representative, early advice helps preserve rights, gather evidence while memories are fresh, identify limitation periods and frame the matter strategically. An initial confidential conversation will usually clarify whether a dispute exists, what the realistic options are and whether the matter can be resolved without litigation.