Civil Law: Testator's Family Maintenance Claim Analysis in Victoria

This case study delves into the complexities of Testator's Family Maintenance (TFM) claims within the framework of Civil Law, particularly focusing on the Administration and Probate Act 1958 (Vic) and the Justice Legislation Amendment (Succession and Surrogacy) Act 2014. It examines the evolution of TFM claims, highlighting the restrictions imposed by legislative amendments on claimant eligibility while considering the courts' assessment of claimant dependency. The study references the Brimelow v Alampi case to illustrate the application of these legal principles, emphasizing the moral duty of the deceased to provide maintenance and support. Furthermore, it discusses the limitations on eligibility to claim TFM, the procedure for granting it, and the National Committee for Uniform Succession Laws' recommendations for redistributing intestate estates, particularly concerning multiple partners and dependent beneficiaries. The analysis concludes that while amendments restrict eligibility, the claimant must fall within the class of people listed under the Justice Legislation Amendment (Succession and Surrogacy) Act, 2014, as an eligible heir of an intestate deceased, supporting the National Committee's recommendation for deceased individuals to maintain and support beneficiaries without other means of livelihood.

Running head: CIVIL LAW
Civil Law
Name of the Student
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Author Note

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Table of Contents
Introduction................................................................................................................................2
The Administration and Probate Act 1958.................................................................................2
Justice Legislation Amendment (Succession and Surrogacy) Act, 2014...................................3
Eligible persons to claim for the Testator’s Family Maintenance.............................................3
Discretion of the Court to allow Testator’s Family Maintenance..............................................4
Brimelow v Alampi Case............................................................................................................5
Limitation on the eligibility to claim Testator’s Family Maintenance......................................5
Procedure to grant Testator’s Family Maintenance...................................................................6
Conclusion..................................................................................................................................7
References..................................................................................................................................8

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Introduction
As put forwarded by the Victorian Law Reforms Commission, 36328 deaths were
recorded in Victoria in 2012, out of which many of the deceased died without placing a valid
will for their heirs all beneficiaries to take over their properties1. In such circumstances, the
Administration and Probate Act comes into the picture that helps to dispose a property that
lacks testamentary disposition. The intestacy law of Victoria is complex and orphan step out
of its jurisdiction. Therefore, the National Committee for Uniform Succession Laws
recommended that a person who can prove his dependency on the deceased, intestate or not,
would be eligible to apply for a redistribution of the estate in their favour2. Even though the
2015 legislative amendment to part IV of the Administration and Probate Act 1958 (Vic) has
put significant restriction on the eligibility of the claimants or beneficiaries, the courts are
looking thoroughly into the type of dependency of the claimant before align a redistribution
of the estate of the deceased.
The Administration and Probate Act 1958
The amendment to part IV of the Administration and Probate Act 1958 (Vic) in 2015
has put forwarded restriction as to the eligibility of the person claiming to be eligible to be
taken care of by the intestate deceased person. On the other hand, as argued by the National
Committee for Uniform Succession Laws has suggested that a person, who was entitled to be
taken care of by an intestate deceased, may claim to a court of law to redistribute such
intestate estate in their favour3. In July 1998, the Administration and Probate Act included a
provision that made appropriate people eligible to claim a Testator’s Family Maintenance
1 "5. Intestacy | Victorian Law Reform Commission", Lawreform.Vic.Gov.Au (Webpage, 2019)
<https://www.lawreform.vic.gov.au/content/5-intestacy-0>.
2 Baker, Christopher, and Michael Gilding. "Inheritance in Australia: family and charitable distributions from
personal estates." (2011) 46.3 Australian Journal of Social Issues 273-289.
3 "National Committee For Uniform Succession Laws | Victorian Law Reform
Commission", Lawreform.Vic.Gov.Au(Webpage, 2019) <https://www.lawreform.vic.gov.au/content/national-
committee-uniform-succession-laws-0>.

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(TFM) claim out of an estate of the deceased who has died intestate in Victoria, Australia4.
However, with the advent of the Justice Legislation Amendment (Succession and Surrogacy)
Act such provision of the Testator’s Family Maintenance Claim has been critically restricted5.
This paper includes the critical valuation of the estimation of the claim for the Testator’s
Family Maintenance.
Justice Legislation Amendment (Succession and Surrogacy) Act, 2014
The new Act which is the Justice Legislation Amendment (Succession and Surrogacy)
Act, 2014 has come up with significant amendments pertaining to the people who claim
eligibility regarding the Testator’s Family Maintenance claim. At present Section 91 of
the Administration and Probate Act 1958, makes a person eligible to apply before the court to
receive a share out of an estate if only he can prove that the deceased was responsible to
provide means for his maintenance, as argued and criticized by various legal profession
pertaining to this provision, since the amendment of the Administration and Probate Act in
1998. As put forwarded in the case of Brimelow v. Alampi, there is no fixed list of people
who can claim to be eligible to demand a Testator’s Family Maintenance6. This has instigated
the rise in the number of fabricated Testator’s Family Maintenance claim cases, burdening
the already overburdened court, which does not meet the present community standards7.
Eligible persons to claim for the Testator’s Family Maintenance
As held by the Justice Legislation Amendment (Succession and Surrogacy) Act, 2014,
the following person only eligible to claim a Testator’s Family Maintenance:
1. A spouse or a live-in partner who was living with the deceased at the time of his death;
4 Administration and Probate Act 1958 (Vic).
5 Justice Legislation Amendment (Succession and Surrogacy) Act, 2014.
6 Brimelow v. Alampi [2016] VSC 135.
7 Burns, Fiona. "The changing patterns of total intestacy distribution between spouses and children in Australia
and England” (2013) 36 UNSWLJ 470.

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2. The deceased’s child or a step child;
3. The child, whether biological, step child or adopted, was under the age of 18 at the time of the
death of the deceased or the child had some kind of disability;
4. A person who was treated by the deceased as a dependent of such person and was considered
as the natural child of the deceased;
5. The deceased's former spouse with whom the maintenance related settlement was not
completed after separation and before the deceased died;
6. A registered caring partner;
7. The Deceased’s grandchildren;
8. Spouse of the child of the deceased; and
9. If a family member of the household of the deceased.
Discretion of the Court to allow Testator’s Family Maintenance
As held by the provisions of the Administration and Probate Act 1958, the court is
required to consider certain factors for determining whether the deceased person bore
responsibility to maintain the claimant. However the court has no obligation to take these
factors into consideration. The Justice Legislation Amendment (Succession and Surrogacy)
Act, 2014 has added another factor for the court to consider which is deciding the amount that
the claimant of the Testator’s family maintenance. The Justice Legislation Amendment
(Succession and Surrogacy) Act, 2014 has a different approach from the provisions let down
in the APA as it requires the claimant to show that the deceased bore ‘moral duty' to provide
maintenance and support to the claimant. Additionally, the Justice Legislation Amendment
(Succession and Surrogacy) Act, 2014 strives to put a restriction on the number of TFM
claims brought by eligible claimants. The court looks into the degree of inability of the
claimant to maintain and support himself adequately. The Justice Legislation Amendment
(Succession and Surrogacy) Act, 2014 is applicable to the TFM claims in case the deceased
person has died on or after 1st January 2015.

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Brimelow v Alampi Case
The case of Brimelow v Alampi is one of the first cases that considered the disputes
related to the claims of the eligible claimant or beneficiaries of intestate deceased persons.
The Justice Legislation Amendment (Succession and Surrogacy) Act, 2014 husband major
changes to the Part IV of the Administration and Probate Act 1958 (Vic). The amendments
effected in the Administration and Probate Act by forming the Justice Legislation
Amendment (Succession and Surrogacy) Act has admitted restriction pertaining to the classes
of claimant or beneficiaries who are eligible to apply for TFM in respect to the deceased
person’s estate. In this case, Rita Alampi is the deceased who give away her property by Will
to one out of her three children. The other two deprived children (daughters) file a claim for
Testator’s family maintenance for they stated that they had no other means of livelihood other
than their mother’s estate. Being the daughter of the deceased, the plaintiff fall within the
category of the eligible person who are permitted to make claims for family maintenance out
of the family estate even when their mother’s Will expressly mention that she excludes her
other children from deriving benefits from the estate as she did not share a meaningful
relationship with the two of them. This made the excluded children seek a resolution from the
honourable court in context to the amended Administration and Probate Act. It was finally
held that the defendant as well that the deceased had a moral duty towards the plaintiff, to
provide maintenance and support, which his mother should have done through her Will.
Limitation on the eligibility to claim Testator’s Family Maintenance
As held by the Justice Legislation Amendment (Succession and Surrogacy) Act, 2014,
the group of persons who has the eligibility to claim Testator’s family maintenance under a
Will or not, is limited. For example of claim for TFM cannot be made by friends, nephews
our neighbours of the testator. As held by the Succession Act 2006 (NSW), it requires the

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‘dependency’ of the claimant on the interstate deceased relating to certain classes8. This has
been interpreted as a financial, material or some kind of emotional dependency of the
claimant on the deceased. Therefore, it is to be seen that whether the Victorian courts would
be adopting a similar approach as the NSW Courts9. In general, the courts are directed to
follow the clauses let down under a will for assessing the claims of the beneficiaries under it.
However, the court cannot deny the claim of an eligible person if he or she can establish his
or her dependency on the deceased10. Even in such a condition, the person so dependent on
the deceased will not be denied a right on the deceased’s estate due to the fact that the person
has been excluded from the Will. In the absence of testamentary disposition, it becomes
easier for a court to decide and dispose a matter where a dependent claims his right on the
estate of the deceased for there is rarely any opposition in such circumstances as it lacks a
Will.
Procedure to grant Testator’s Family Maintenance
A claimant or beneficiary may apply for a grant of letters of Administration error code
of law when it is proved that the deceased died without leaving behind a will to distribute his
estate. The claimant must fall under the class of people who are eligible under the Succession
Law to inherit the estate of a deceased. Additionally, the recommendation of the National
Committee pertaining to the redistribution of the estate of a deceased lays down two factors:
a) how the estate of an intestate deceased can be shared by multiple partners; and b) how law
has alternative options of redistributing the estate of an interested deceased among his
dependent beneficiaries11. The recommendation of the national committee pertaining to the
8 Certoma, Giuseppe Leroy. "The law of succession in New South Wales." (2010).
9 Reid, Kenneth, Marius de Waal, and Reinhard Zimmermann, eds. Comparative Succession Law: Volume II:
Intestate Succession (2015) OUP Oxford.
10 Hargis, Jennifer R. Boone. "Solving Injustice in Inheritance Laws Through Judicial Discretion: Common
Sense Solutions from Common Law Tradition." (2003) 2 Wash. U. Global Stud. L. Rev 447.
11 "National Committee For Uniform Succession Laws | Victorian Law Reform
Commission", Lawreform.Vic.Gov.Au(Webpage, 2019) <https://www.lawreform.vic.gov.au/content/national-
committee-uniform-succession-laws-0>.

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redistribution of the estate where there is an involvement of multiple partner or beneficiaries
who are entitled to receive a share of the estate main fever the beneficiaries unfairly. The
commission compares the existing scheme of redistribution of the estate of a deceased in
Victoria. The national commission’s alternative approaches have been proved to be not more
accessible or accommodating of the traditional law. However, the National commission
concluded that the adoption of the recommendations laid down by the national committee
would assist the indigenous communities in Victoria12.
Conclusion
Therefore, it can be concluded that the recommendation of the National Committee
for Uniform Succession Laws pertaining to the responsibility of the deceased to maintain and
support his beneficiary who has no means of livelihood, is just and proper. Although the
amendment to Part IV of the Administration and Probate Act 1958 (Vic) restricts the
eligibility of the beneficiary or claimant who has been even expressly excluded from the Will
or where the deceased have died intestate. However, it needs to be understood that the
claimant must be within the class of people who are listed under the Justice Legislation
Amendment (Succession and Surrogacy) Act, 2014 as eligible heir of an intestate deceased.
The National Committee for Uniform Succession Laws has recommended such an approach
to extend a helping hand towards a person who needs the financial help and support of
another to whom he is related.
12 Ibid.

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References
Books and Journal articles
Baker, Christopher, and Michael Gilding. "Inheritance in Australia: family and charitable
distributions from personal estates." (2011) 46.3 Australian Journal of Social Issues 273-289
Burns, Fiona. "The changing patterns of total intestacy distribution between spouses and
children in Australia and England” (2013) 36 UNSWLJ 470
Certoma, Giuseppe Leroy. "The law of succession in New South Wales." (2010)
Hargis, Jennifer R. Boone. "Solving Injustice in Inheritance Laws Through Judicial
Discretion: Common Sense Solutions from Common Law Tradition." (2003) 2 Wash. U.
Global Stud. L. Rev 447
Reid, Kenneth, Marius de Waal, and Reinhard Zimmermann, eds. Comparative Succession
Law: Volume II: Intestate Succession (2015) OUP Oxford
Cases
Brimelow v. Alampi [2016] VSC 135
Government websites
"5. Intestacy | Victorian Law Reform Commission", Lawreform.Vic.Gov.Au (Webpage, 2019)
<https://www.lawreform.vic.gov.au/content/5-intestacy-0>
"National Committee For Uniform Succession Laws | Victorian Law Reform
Commission", Lawreform.Vic.Gov.Au(Webpage, 2019)
https://www.lawreform.vic.gov.au/content/national-committee-uniform-succession-laws-0
Legislations
Administration and Probate Act 1958 (Vic)

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Justice Legislation Amendment (Succession and Surrogacy) Act, 2014
Succession Act 2006 (NSW)