Challenging a Will can occur in different ways:
- Challenging the validity of the Will
It might be a challenge to validity of the Will itself. In this case, the aggrieved person might argue that the deceased’s Will was not valid at all, perhaps because it was not signed correctly, or some other legal requirement was not followed.
2. Claiming that the deceased should have provided for you in their Will
But the more usual avenue (which this article covers) is to make what is known as a ‘Testator Family Maintenance’ (TFM) claim by asserting that the deceased had a ‘moral duty’ to make provision for you (the ‘claimant’) as at the date of death AND that the Will failed to make adequate provision for your proper maintenance and support.
The legislation governing such claims is general enough to give judges considerable scope to make case by case decisions. Each case will be dependent on its own particular facts.
One relatively consistent factor in decided cases is the claimant being able to demonstrate financial need. So, all other factors being equal, a financially ‘needy’ claimant is likely to fare better than one in a better financial position.
In Victoria, the ability to make a TFM claim depends on the claimant being an ‘eligible person’. That is, they fit into one of several categories. The main categories are spouse, domestic partner, child, stepchild, or a former spouse or domestic partner who is unable to bring a claim under the Family Law Act.
Time limits also apply. A TFM claim must be made within six months from Grant of Probate unless time is extended. If you feel you may have an entitlement to make a claim against an estate, it is therefore important to seek legal advice promptly.
Our experienced Wills & Estates team has considerable experience in acting for both claimants against estates and representing deceased estates who are defending TFM claims.
It is also worth pointing out that the law in this area is state based. Although the same broad principles apply in this jurisdiction throughout Australia, the variations from State to State can be considerable. Please note that this article deals only with the TFM legislation applying within Victoria.
What if there is no Will?
Interestingly, even if someone dies without leaving a Will a TFM claim is possible. If there is no Will, the laws of intestacy apply. Intestacy is a legislation based ‘one size fits all’ distribution scheme for the estate.
Many people have commented down the years that courts are ready to ‘interfere’ in order to adjust or replace provisions people make in their Wills: courts are also prepared to intervene to review the legislative intestacy provisions where it is felt appropriate and justified.
If you would like to discuss your particular circumstances, please contact Shane Williams of our office on 9435 9044.
