Legislative Amendments to Part IV, Administration and Probate Act, 1958 (Vic) and Eligibility for Testator's Family Maintenance Claim

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In 2015 legislative amendments to Part IV, Administration and Probate Act, 1958 (Vic) and
greatly restricted eligibility.
Critically evaluate this statement.
Since July 1998, the procedure for an individual who wants to bring a Testator's Family
Maintenance claim (TFM) has been administered by Part IV, Administration and Probate Act,
1958 (Vic), for the persons who are seeking provision from the estate of the deceased in
Victoria. However, this process has been changed significantly as a result of the legislative
amendments made in 2015. Significant amendments have been introduced regarding the persons
who are eligible for making a TFM claim and also regarding the factors that now have to be seen
by the court while deciding the result of the TFM claim.
Eligibility for bringing a TFM claim: While in the past, it was broadly provided in the s 91,
Administration and Probate Act that any individual can make an application for provision from
the estate if such person is in a position to demonstrate that the deceased had the liability for
providing for them proper maintenance and support.1 However, this aspect of the law had been
criticized a lot by legal fraternity ever since it was introduced in 1998. The concerns of the legal
threaten people mainly on the basis of the fact that there was no set category of people who are
entitled for making TFM claim.2 It was apprehended that this will increase the probability for
fraudulent TFM cases that would be introduced before the courts in such a situation was not in
accordance with the present standards of the community. The result was that the amendments
1 Blair v Blair (2004) 10 VR 69
2 Lee v Hearn (2005) 11 VR 270

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introduced in 2015 made an attempt to deal with this concern. The result was that these
amendments provided that only the categories that of claimants mentioned below are eligible for
bringing a TFM claim.
 A domestic partner/husband/wife of the deceased person when the death of the deceased
took place;
 Deceased’s child or stepchild;
 A child of the departed (this includes a stepchild/adopted child) who, on the death of the
deceased, was below the age of 18 years and, a full-time student between the age of 18 to
25 years or if such child is under a disability;
 An individual who had believed for considerable period in the lifetime of the departed
that the dead person was his father/mother and had been taken care of by the dead person
as their natural child.
 A ex- spouse or the partner of the dead person (if the property settlement has not been
arrived at with the departed after their parting)
 Deceased’s grandchild
 The deceased’s registered caring partner
 A spouse or familial partner of the deceased’s child (In case her child had died in one
year of the death); and
 A member of the household to which the dead person was also a member or would have
been in the past or may have been a member in the future.

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The factors that need to be measured by the court: the earlier terms of the APA referred to the
obligation on part of the court to consider a number of factors for the purpose of deciding
whether or not, there was a "responsibility" on the deceased to take care of the claimant. These
factors have been mentioned in s91(4) of the APA. These factors have also been detained by the
new legislation. However after the amendments introduced in 2015, the court is not anymore
required to consider these factors.3 The novel legislation also provides an additional factor that
may be considered by the courts, while dealing with a TFM claim. This factor is the consequence
that the order of court is going to have on the amount that the other recipients of the estate are
going to receive.
The new provisions are also different from the earlier terms of the Administration and Probate
Act has required that the applicant has to establish that the dead person was under a 'moral duty'
for making sufficient provision for the appropriate support and maintenance of the claimant.
While deciding if such a moral duty is present or not, the new provisions provide that the court is
required to consider the terms of the Will of the dead person along with any evidence regarding
the reasons due to which a testator had made the dispositions in the Will and regarding any other
proof related with the intentions of the deceased regarding providing or not providing for the
claimant.4
Another significant effect of the 2015 amendment is that the glitch also tries to limit the number
of TFM claims that may be initiated by some of the eligible claimants as it had included certain
3 Rosalind F Atherton, ‘Expectation without Right: Testamentary Freedom and the
Position of Women in 19th Century New South Wales’ (1998) 11 University Of New South
Wales Law Journal 133, 148–9.
4 Wilbert D Kolkman, ‘Freedom of Testation in the Netherlands’ in Reinhard Zimmermann
(ed), Freedom of Testation(Mohn Siebeck, 2012) 32–5