Family maintenance responsibilities do not cease with the death of a responsible person. In Victoria, the Administration of Probate Act as amended deals with these claims. The courts may order that provision be made out of an estate of a deceased for the proper maintenance and support of a person, of whom a deceased had responsibility to make provision whether a deceased made a Will or not. The courts have discretionary power to make a Provision Order provided that the Court is of the opinion that the distribution of the estate of the deceased did not make adequate provision for the proper maintenance and support of an applicant. The Courts in determining: a whether or not the deceased had responsibility to make provision for a person; and b whether or not the distribution of the estate of the deceased person as effected by:- i. The Wills Act as amended enables anyone over the age of 18 to make a Will as he or she wishes Freedom of Testation. Nevertheless, as we will see, a Will may be challenged. Underpinning this legislation, is that any applicant must show that the deceased had a responsibility to make provisionor further provision for that person. The Act provides that no application shall be heard by the Court unless the application is made within six 6 months after the date of grant of probate of the Will or of letters of administration.
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TFM - Who Can Claim?
Join over 19, members and find out about the full suite of membership products and services. This is rarely because the solicitor does not know of the time limit. In one case, the son of the deceased instructed a solicitor to investigate whether his father had made a later will. The will, believed to be the last will, had been made five years before the father died and made no provision for the son. The son believed his father would have intended to provide for him. The solicitor made a series of inquiries but a later will was not discovered.
COVID-19 and TFM Claims
A claimant may make a TFM application within six months of probate or letters of administration being granted. If a trustee of an estate makes a distribution within this time, the trustee may be held personally liable for a later successful claim. In limited circumstances, the Court may grant an extension in time for a claimant to make a TFM application also see article below. The Court approaches TFM applications as a three step process. The first step is for the Court to deter-mine whether the deceased had responsibility to make provision for a person. The second step is to deter-mine whether or not the distribution of the estate of the deceased makes adequate provision for the proper maintenance and support of the claimant.
We are all waiting anxiously for a TFM proceeding to proceed to judgment, to the Victorian Supreme Court, Court of Appeal Division for some judicial guidelines as to the extent of the discretion and meaning of the new s. In particular, how will the Court interpret the new expanded eligibility requirements of s. Section 91 replaces the previous eligibility requirements of "the deceased widow, widower or children" with "a person for whom the deceased had a responsibility to make provision". In effect applications can be made by "any person" with a "family or other relationship" with the deceased for further provision out of the deceased estate.