Contesting a will

Section 90 of the Administration and Probate Act 1958 (Act) allows certain eligible people to contest wills in Victoria. An application to contest a will is known as a Testator’s Family Maintenance (TFM) application and is made in the Supreme Court of Victoria. If the Court is satisfied that the applicant is entitled to a greater share than they received in the will, it will order that the estate be redistributed.

Eligible applicants

Until changes were made to the Act in 2015, the class of potential TFM applicants was broad. Since 2015, the list of eligible applicants has been significantly reduced and eligible applicants must now fall into the following categories:

1. Spouses – the term ‘spouse’ includes not only the husband or wife, but also a registered partner or de facto partner of a deceased.
2. Children – not all children are automatically eligible to make a TFM application. Minor children of the deceased are entitled to contest a will in Victoria. Under the Act, the definition of “children” includes biological and legally adopted children, as well as stepchildren. Children can also make a TFM claim if they are between the ages of 18 and 25 and are full-time students, or if they are disabled (regardless of their age).
   Other adult children, who do not fall into the abovementioned categories, can make a TFM application in Victoria only if they are classed as dependants. That is, they can show that they were financially supported by the deceased, that they have a financial need and that they cannot adequately provide for themselves.
3. Carers – a person who was in a registered caring relationship with the deceased, in circumstances where they were not compensated for their role and are not the deceased’s partner, is an eligible applicant of a TFM application.
4. Dependants – outside of the categories discussed above, a person is an eligible applicant only if they can demonstrate that they were a ‘dependant’ of the deceased. The applicant must show that the deceased supported them financially during their lifetime, and that they were financially dependent on the deceased.

Limitation period

TFM applications to challenge wills in Victoria must be filed within 6 months of the grant of probate of the will. If this limitation period is missed, the applicant would need to convince the Supreme Court that there was a reasonable justification for the delay in not making the application. In practice, it will be extremely difficult for applicants to provide such a justification and it is therefore critical that this time limit is not missed.