Our laws recognise the wishes of a person to dispose of property upon their death where that person has made a Will at a time legally capable of doing so and without undue pressure or influence. In those circumstances there is little opportunity of challenging the Will’s substance.
The freedom to make a will on whatever terms one wishes however is restricted by the overriding consideration that a person must make provision for the ‘proper maintenance and support’ of a person ‘for whom he or she had a moral responsibility to make provision’. This may include a spouse, children or others who had a special relationship with the deceased. Any such person within that class who considers there is inadequate provision made out of the estate of a deceased may bring an action known as Testator’s Family Maintenance (TFM) or Part IV Application. Such Application will require the Supreme Court to order that the estate be distributed as it deems appropriate in the circumstances.
For an application to be successful, an applicant must establish that: a special relationship existed with the deceased and as such the deceased had a moral obligation to make proper provision for the maintenance and support of the applicant; and that the applicant has an economic or financial need.
A Court will also examine the relationship between the deceased and the applicant and give consideration to the applicant’s character and conduct towards the deceased and determine whether such conduct should disentitle them from receiving any benefit from the estate.
An application will not be successful merely because the Will was unfair or unjust in its distribution.
An application against a legal personal representative of the estate (Executor or Administrator, where there is no Will) may be made within 6 months from the date of a Grant of Probate or Letters of Administration. In special circumstances, however, the Court may grant an extension as long as the estate has not been completely administered. The legal personal representative has a duty not to distribute the estate of a deceased until 6 months after the date the grant has been obtained.
Once an application is made, it is likely the Court will order that the claim be referred to and settled at a mediation hearing and it is increasingly unlikely that a court hearing is required. The legal costs of making a Part IV Application or defending an action arising from such application are usually ordered to be paid out of the estate of the deceased providing the claim is not frivolous or vexatious.