Disputes, Contested Wills & TFM Claims

Disputed, Contested Wills & Testator Family Maintenance Claims

At Cyngler Kaye Levy Lawyers we have experienced Probate & Litigation lawyers who can assist and advise you if you are involved in a Will dispute or Testator Family Maintenance Claim.

What is a contested Will?

Contested estate claims and other estate disputes or challenges may arise between family members and other potential beneficiaries after a person dies.

You need to be aware of the following:-

  • LEAVING YOUR ASSETS – A person can make a Will leaving his or her assets to whomsoever the Will-maker pleases.
  • OMITTING A PERSON – The principles of testamentary freedom dictate that a person may legitimately chose to leave a spouse or children out of a Will.

Grounds of Claim

Notwithstanding a person’s right to give away property to their intended beneficiaries, a Will may be challenged on the following grounds:-

a)  The Will is NOT Valid:

b)  If eligible, a Testator Family Maintenance Claim (“TFM Claim”) can be made under the Administration and Probate Act 1958 (Vic)

Validity of Will

The Will may be deemed invalid for any one of the following reasons:-

  • The deceased did not have the capacity necessary to make a valid Will, for example, if they were suffering from dementia, or another mental illness, when they signed the Will;
  • The deceased was under undue pressure and/or influence when they signed the Will;
  • The Will was not properly executed by the Deceased;
  • The Will has been revoked, or superseded by a later Will.

Testator Family Maintenance Claim against a Will

Testator Family Maintenance Claims are the most commonly used way to challenge a Will, and may be where someone believes they have not been adequately provided for under the Deceased’s Will.

Family disputes may occur when someone including immediate family members, relatives, de facto spouses and/or their children as a result of a blended family, may have been cut out of the Will or left without adequate financial provision and who can make a claim against the estate.

We have experienced probate litigators who can guide you through the complex process of fighting or defending a Will.

Who can make a Testator Family Maintenance Claim against a Will?

Prior to 1 January 2015 any person the deceased had a moral responsibility to provide for could make a Testator Family Maintenance Claim in Victoria to challenge the Will.

The test allowed for a broad range of individuals to make application for recognition under a deceased person’s estate. It also opened the door for applicants to make frivolous claims against a deceased’s estate.

From 1 January 2015, the test by which a person could make application for recognition under a deceased’s Will was amended in order to strike a better balance between the rights of the deceased person’s estate and the applicants seeking maintenance.

The amendments were designed to:-

  1. Limit the amount of people eligible to make application for maintenance;
  2. Limit the legal costs an estate was liable to make contribution to;
  3. Limit the influx of cases brought under the legislation and ease the tax on the court’s resources.

From 1 January 2015, only a person falling within one of the categories of eligible claimants (Eligible Person) can make a claim for maintenance under the legislation.

The following strict categories of people are defined as Eligible under the legislation:-

  1. a person who was the spouse or domestic partner of the deceased at the time of the deceased’s death;
  2. a child of the deceased, including a child adopted by the deceased who, at the time of the deceased’s death, was—
    1. under the age of 18 years; or
    2. a full-time student aged between 18 years and 25 years; or
    3. a child with a disability;
  3. a stepchild of the deceased who, at the time of the deceased’s death, was—
    1. under the age of 18 years; or
    2. a full-time student aged between 18 years and 25 years; or
    3. a stepchild with a disability;
  4. a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased’s death, was—
    1. under the age of 18 years; or
    2. a full-time student aged between 18 years and 25 years; or
    3. a child with a disability;
  5. a former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death—
    1. would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and
    2. has either—
      1. not taken those proceedings; or
      2. commenced but not finalised those proceedings; and
    3. is now prevented from taking or finalising those proceedings because of the death of the deceased;
  6. a child or stepchild of the deceased not referred to in paragraph 3;
  7. a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph 4;
  8. a registered caring partner of the deceased;
  9. a grandchild of the deceased;
  10. a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph 4 or 7) if the child of the deceased dies within one year of the deceased’s death;
  11. a person who, at the time of the deceased’s death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.

If a person is an Eligible Person they must establish that at the time of death the deceased had a moral duty to provide for their proper maintenance and support and that the distribution of the estate failed to make adequate provision for this.

In assessing the amount payable to an applicant under this provision, the court must take into account the degree to which at the time of death the deceased had a moral duty to provide for the Eligible Person and the degree to which the distribution of the estate failed to make provision for the Eligible Person’s proper maintenance and support.

Classes of Eligible Persons

The categories of Eligible Person are ranked, top to bottom, according to their relative closeness to the deceased. Individuals in the top categories of the list receive preferential treatment under the legislation in that the requirements they must satisfy to receive distribution under the legislation are less onerous than for those individuals at the bottom of the list.

It is easier for a child of the deceased to receive a distribution by the courts, and a larger amount at that, than it is for a registered caring partner or a grandchild of the deceased.

In the instance of a grandchild of the deceased, for example, the grandchild must also establish they are dependent on the deceased. The courts will also consider the degree to which the grandchild is dependent on the deceased and only provide an amount that is in proportion to the grandchild’s degree of dependency on the deceased.

The Will-Maker’s Intentions

The Will itself is considered in determining the amount an eligible person is to receive from an estate. Evidence demonstrating the intentions of the deceased, including evidence which demonstrates the reason for omitting an eligible person, is pertinent to these discussions.

Estrangement

Does the above mean that if a child of the deceased was intentionally excluded because of estrangement he or she may not be entitled to make an application? The answer to this, in most instances, is no, however, each case is to be determined on the facts with reference to the following considerations:-

  1. The conduct of the parties;
  2. The degree of estrangement;
  3. The duration of the estrangement.

Stepchildren of a Divorced Marriage or a Decoupled De-facto Relationship

Notwithstanding the perceived rigidity of the eligible categories, the class of eligible persons are not wholly settled.

The nature of modern relationships and the intricacies and variations that arise within these relationships have not been wholly addressed by the courts and there is still considerable debate as to the defined categories of eligibility. Problems arise because many words that we have grown accustom to have in their modern usage taken on a different meaning and, some say, should be given this new meaning by the courts.

The definition of stepchild might appear plain on its face.

Over the years it has come to be defined as a child by another marriage or relationship of one’s husband or wife or loosely the person with whom one lives as if married. The underlined portion has been included in recent times to better reflect community standards.   

Complications commonly arise in modern relationships where the parent of a child and their partner (the stepparent) cease relations by reason of death, divorce or decoupling. The common question that arises is if, notwithstanding the termination of the relationship of the parent and stepparent, the relationship of stepchild and stepparent endures if the stepchild and stepparent continue to treat each other as such.

This is a complex area of the law and you should seek professional assistance from our experienced practitioners.

In the coming years the courts will need to consider whether the right balance has been struck between limiting the number of individuals capable of applying for maintenance and affording people who are in complex modern relationship the right to make a claim against an estate.

Are there any time limits on disputing a Will?

As a general rule a person wishing to challenge their entitlement under a Will must bring a claim within 6 months of the grant of Probate or Administration. We can assist you in making a claim.

In certain circumstances, the Court may grant permission for an Application to be made outside of this time. If you are out of time, we can assist you with this type of claim.

Top factors courts take into account when considering adequate provision under a Will.

  1. The nature and duration of the applicant’s relationship with the deceased;
  2. The applicant’s financial resources and needs;
  3. The size of the estate;
  4. The financial needs of any other competing claimants;
  5. Any contributions made by the Applicant to the Deceased’s estate;
  6. Any representations about entitlement made by the Deceased to the Applicant.

We can discuss with you whether you have grounds to make a claim.

We have successfully litigated and/or defended estate dispute claims for more than 25 years.

Please do not hesitate to speak with one of our experienced Probate Litigators on +61 3 9500 1722 or email an enquiry.

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