Contesting the terms of a Will to seek further provision

Question:
What happens if I miss the deadline to make a claim?
Answer:

If a claimant fails to make a TFM claim within the six (6) month time period, they may be able to apply to the Court for an extension of time in which to commence their claim. An extension of time is not guaranteed. The claimant will need to be seen to have an arguable claim against the deceased’s estate and a reasonable explanation for failing to commence their claim in time.

Question:
How long do I have to make a TFM claim?
Answer:

A TFM claim may be made against a deceased’s estate for a period of six (6) months from the date that a Grant of Probate or Letters of Administration are made in relation to the deceased’s estate.

Question:
Will I also have to pay the other side’s costs if I lose?
Answer:

In TFM claims, like all litigation, an unsuccessful party is at risk of being ordered to pay the successful party’s legal costs. However, unlike most litigation, whether or not an unsuccessful claimant is ordered to pay costs can often depend on the merits of the claim that was brought against the deceased’s estate. There have been rare situations where a claim was unsuccessful but the Court ordered that all costs be paid out of the deceased’s estate rather than be paid by the claimant.

Is it therefore very important that you obtain advice about your potential TFM claim before you commence any legal proceedings.

Question:
Are there any costs?
Answer:

Yes. However, in some cases, your costs may be ordered to be paid out of the deceased’s estate. Mackinnon Jacobs Lawyers can advise you of the likely costs in relation to any potential TFM claim you have and provide you with a written estimate of such costs.

Question:
Does a TFM claim have to go to Court?
Answer:

Many TFM claims are settled without going to Court. Many TFM claims that do go to Court, settle before reaching trial. At Mackinnon Jacobs Lawyers, we endeavour to provide you with the right advice and information so that you have every opportunity to reach a reasonable settlement of any claim. However, if a claim cannot be resolved, it will have to go to trial and be heard and determined by a Judge and we have the experience and skills to provide you with your best chance at obtaining a successful outcome at trial.

Question:
How do I show that the provision left to me was improper or inadequate?
Answer:

Where the deceased died prior 1 January 2015

The need for the claimant to show that the provision left to them under the deceased’s Will was improper or inadequate in the circumstances is usually met by showing that the claimant has some ‘financial need’. What constitutes financial need varies from case to case but is often shown by the fact that the claimant has a mortgage, or other debts, or is in need financial assistance to secure residential accommodation.

Where the deceased died after 1 January 2015

Changes to the Administration and Probate Act mean that where the deceased person died on or after 1 January 2015, the rules concerning who can make a TFM claim have changed.

If you are an eligible person (see ‘Who can make a TFM claim‘) and can show that the deceased owed you a moral duty to make provision for you (see ‘What type of relationship is required between the claimant and the deceased?‘) you are still required to demonstrate to the Court that the deceased’s Will failed to make adequate provision for you, which, could be done by showing that you have some financial need. However, if you are a child, stepchild or adopted child of the deceased who, at the time of the deceased’s death, was not (i) under the age of 18 years, (ii) a full-time student aged between 18 years and 25 years; or (iii) suffering from a disability, you will also be required to show evidence of the fact that you are not capable, by reasonable means, of providing adequately for your own financial needs.

Question:
What type of relationship is required between the claimant and the deceased?
Answer:

Where the deceased died prior to 1 January 2015

Generally speaking, the Courts have traditionally held that a deceased owes a responsibility to provide provision for immediate family members such as a surviving spouse or children. However, just as family relationships differ from family to family, no two cases are the same and successful claims have been brought by step-children, grandchildren, siblings and (although more rarely) extended family members and non-family members.

Where the deceased died after 1 January 2015

Changes to the Administration and Probate Act mean that where the deceased person died on or after 1 January 2015, the rules concerning the making of a TFM claim have changed.

To be able to make a TFM claim where the deceased died after 1 January 2015, you must be an ‘eligible person’ (see ‘Who can make a TFM Claim‘). You must also be able to show that the deceased had a moral duty to provide for your proper maintenance and support.

Question:
Who can make a TFM claim?
Answer:

Where the deceased died prior to 1 January 2015

The categories of persons who can make a TFM claim is not defined. To be successful, a claimant needs to be able to show that:

  • the claimant had a relationship with the deceased which imposes a responsibility upon the deceased to make proper provision for the claimant out of the deceased’s estate; and
  • the provision made for the claimant under the deceased’s Will was, in the circumstances, improper or inadequate.

Where the deceased died after 1 January 2015

Changes to the Administration and Probate Act mean that where the deceased person died on or after 1 January 2015, the rules concerning who can make a TFM claim have changed.

To be able to make a TFM claim, a person must be an ‘eligible person’ which is defined as being:

  • a spouse or domestic partner of the deceased at the time of their death.
  • a former spouse or domestic partner of the deceased if the person, at the time of the deceased’s death, would have been able to commence / pursue proceedings under the Family Law Act 1975 but is now prevented from doing so because of the death of the deceased.
  • a child, stepchild or adopted child of the deceased who, at the time of the deceased’s death, was either (i) under the age of 18 years, (ii) a full-time student aged between 18 years and 25 years; or (iii) suffering from a disability;
  • a child, stepchild or adopted child of the deceased who is not capable, by reasonable means, of providing adequately for their own proper maintenance and support.
  • a spouse or domestic partner of a child, stepchild or adopted child of the deceased who dies within one year of the deceased’s death who was wholly or partly dependent on the deceased for their proper maintenance and support.
  • a registered caring partner of the deceased who was wholly or partly dependent on the deceased for their proper maintenance and support.
  • a grandchild of the deceased who was wholly or partly dependent on the deceased for their proper maintenance and support.
  • 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, a member of the household of which the deceased was also a member and who was wholly or partly dependent on the deceased for their proper maintenance and support.

 

Question:
What can I do if I have been left out of a valid Will?
Answer:

You may be able to make a claim to receive provision out of the deceased’s estate.

This type of claim is called a Testator’s Family Maintenance claim (‘TFM claim’) and is a claim that can be made through the Courts under section 91 Administration and Probate Act.