A Testator is a person who makes their Will. Historically the law has long considered that a Testator has a "moral obligation" to make "adequate provision" in their Will for their close family members who are financially dependant on them. These dependants were originally limited to a Testator's spouse and children but since 1996 in Victoria the types of people who can make a TFM claim against a deceased estate have been significantly expanded.

If a Testator fails to make adequate provision in their Will for someone that the law would consider they should have made provision for then, after the Testator's death, those persons can apply to the Supreme Court pursuant to the Testator's Family Maintenance provisions of Part 4 of the Administration and Probate Act (Vic.) for an order by the Court making such adequate provision for them. In other words the Court can, if it thinks it necessary, change the bequests made by the deceased in their Will to either increase or decrease the amounts the beneficiaries in the Will are to receive or to add in new beneficiaries who were left out of the deceased's Will altogether.

Some examples of TFM cases that we have handled in the past include:
•    acting for two young (under ten years) children left only a small cash bequest to share between them by their father who, at the time of his death also owed them thousands of dollars in arrears of unpaid Child Support. At mediation instigated by us the matter was resolved on the basis that the children would receive approximately half of the nett value of the estate with the remainder to be shared between the other beneficiaries in the Will. In addition all of our legal costs for the children were paid by the Estate.
•    we acted for a lady whose father had died in the 1960's leaving all of his estate to his second wife (our client's step mother). When the step mother died in 2008 we were able to successfully argue at mediation that, as most of the step mother's assets at the time of her death were derived from the client's late father's estate, the step mother had a moral obligation to make adequate provision in her Will for our client. As a result our client received a substantial settlement out of the step mother's estate.
•    we defended a Will and Estate against a Testators Family Maintenance claim made by two adult children of the deceased who wanted a bigger share of the estate than their late father had left them. They claimed that they were in difficult financial circumstances and that their father should have done more to help them financially in his Will. Through a combination of use of a legal procedure called Discovery, close examination of their financial records and conducting various searches at ASIC and the Titles office we were able to ascertain that they had substantial undisclosed assets and were in fact quite wealthy in their own right. When confronted with this evidence they quickly agreed to settle the matter out of Court for amounts only nominally more than their late father's original bequests to them. They also agreed to bear their own legal costs rather than have the Estate pay them.

These are just a few examples of how the law of Testator's Family Maintenance can be used to help people who are entitled to a share of a deceased estate, and how such claims can be defended. They also demonstrate the importance of having a professionally prepared Will so as to try to avoid the Estate later being subjected to a Testator's Family Maintenance claim. If you find yourself in a situation involving a Testator's Family Maintenance claim feel free to This e-mail address is being protected from spambots. You need JavaScript enabled to view it to see if we can help.