Testator’s Family Maintenance (TFM) claims can be a tricky area of law. That’s why we caught up with barrister, mediator and College of Law adjunct lecturer, Tasman Fleming, who has conducted mediations in Wills and Estates, and in particular Testator Family Maintenance matters. In this practice update, we explore disentitling conduct, what it involves, and how lawyers can best navigate its challenges.

Understanding Testator’s Family Maintenance Claims  

“A will ordinarily covers how a testator wants their estate to be distributed on death,” Tasman explains. “There is no compulsion for a will to provide for any particular beneficiary. In that sense the testator is relatively free to do what they like although this can be adjusted by the courts.”

“A Testator's Family Maintenance (TFM) claim is a claim to the estate that there has not been adequate (or in some cases any) provision for a particular beneficiary.”

As Tasman explained, the provisions vary from state to state, though in Victoria, the provision is under Part IV of the Administration and Probate Act 1958 (Act).

For example, in the County Court there is Practice Note PNCLD 4-2023 of 22 March 2023 which sets out the procedure: Application is made by originating motion, however, no affidavit or summons is filed.

“The matter then will usually proceed to mediation and if it doesn’t resolve, to trial,” Tasman says.

The significance of ‘disentitling conduct’  

“Disentitling conduct is a history of behaviour by the plaintiff of sufficient severity that the court will decline to make an order for provision,” Tasman says.

To explain this we need to go back a step. The Act imposes a number of matters a Court must have regard to Pursuant to 91A (1) of the Act:   

In making a family provision order, the Court must have regard to—

        (a)     the deceased's will, if any; and

        (b)     any evidence of the deceased's reasons for making the dispositions in the deceased's will(if any); and

        (c)     any other evidence of the deceased's intentions in relation to providing for the eligible person.’

“So, there is a broad range of matters a Court must look at and then there is a discretion to take into account some matters,” Tasman continues.

In other words, disentitling conduct can prevent a testator’s family maintenance claim from succeeding.

What does disentitling conduct look like?  

An application under s91A2(K) of the states that: ‘In making a family provision order, the Court may have regard to the following criteria…the character and conduct of the eligible person or any other person.’

However, setting out a particular behaviour isn’t particularly helpful, as Tasman explains.

“This is because of the range of factors involved. However, conduct which has not met the threshold has included IVO applications, financial control, and limited contact. The bar is very high and will need to be weighed against the other factors,” Tasman says. 

Even estrangement will not per se serve as a basis for exclusion from a claim.

“This depends on a range of factors including, cause, length and extent. This can be difficult to calculate," Tasman explains. "These can be difficult to assess and indeed can be reduced or increased on appeal. In Gash v Ruzicka [2023] VSCA 189, Their Honours Kennedy JA, Walker JAJ, and Forrest AJA increased provision from 1 part of 100 to an additional 15 parts of 100.”

This can be a real challenge in practice, especially in terms of managing a family or beneficiary’s expectations.

“There is a disconnect between what the law says and the high bar of disentitling conduct, and what the family or other beneficiaries believe is disentitling,” Tasman says.

“Bear in mind that the administrators may be defending a TFM claim, but may require the agreement of certain beneficiaries if the matter settles by deed of family arrangement. Each of these family relationships will be potentially fractured and they will view the conduct of the plaintiff through the relationship with them - i.e stepchild and wife or between siblings rather than say the deceased.”

According to Tasman, it is essential lawyers give frank advice to their clients prior to entering into negotiations regarding how difficult it can be to reduce entitlement in many cases.

“If necessary, it may be prudent to advise relevant beneficiaries to seek their own independent legal advice. In many cases, these will resolve but only if the parties fully appreciate the weighing exercise a Court must take.”

What do lawyers need to know?  

Tasman highlights the two stages that lawyers will need to manage the complexities of disentitling conduct.

“Firstly, advising on a will, and secondly, advising the administrators of the estate for a potential or actual claim for TFM.

“When advising on a will, the testator needs to be advised on the effect of a potential TFM claim,” Tasman explains.

There is little that can be done at that stage, according to Tasman, although a prudent adviser will set out the reasons for exclusion in a codicil to the will.

“At this point, all that can be done is to record the reasons a testator wishes to exclude them from the estate. However, the testator can take estate planning steps to ensure that their estate can be disposed of in accordance with their wishes.”

When it comes to advising administrators of an estate, gathering evidence is crucial.

“This helps to get an understanding of whether the particular conduct can amount to disentitling conduct,” Tasman says.

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By Wenee Yap, Legal Features Writer for the College of Law