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.