Challenging a Parent's Will: 3 Types of Evidence You'll Need to Apply for a Testator's Family Maintenance Claim

Posted on: 16 August 2016

While the person who made the will has a right to divide and give away their property however they see fit, the court can make provisions via a Testator's Family Maintenance (TFM) order if it decides that a claimant requires maintenance and support from the estate. If you're the child of the deceased and have been left out of the will, you will want to consider legal services and speak to a lawyer immediately to determine whether you can apply for a TFM order, as the application must be filed within 6 months of the grant of probate or letters of administration being made. Here are 3 types of evidence that can help your case.

The Financial Capabilities of the Claimant

Depending on your age, your deceased parent might still be legally responsible for providing for you financially. If you are still underage, then your deceased parent is legally obligated to provide for you financially.. Even if you're not, the court may consider your age along with your financial capability to determine whether a provision needs to be made.

If you are a child going to school and working a part-time job, the amount of estate left In your name – or even the lack of estate left to your name – will be taken into account with whether the amount provided is sufficient for you to maintain and support yourself. Provide financial records of the amount you have in your checking, savings and investment accounts to show the court what your financial position is, along with your financial needs may be.            

Whether the Deceased Provided Financial Support in the Past

If your parent has previously provided for you in the past and up to the time of their death, a lawyer might also be able to build a strong case that you would still be receiving financial support from the parent should they still be alive. You'll need to prove that your parent was providing you with an allowance or some type of financial support.

For example, if your parent was paying rent for you, you might want to show proof of that. If your parent was sending you money every week, you'll want to dig up bank records of them making withdrawals or even correspondences you've had with them that shows that they've agreed to support you financially for a certain period of time. It is up to the courts to decide whether a provision needs to be made.

Whether the Deceased Was of Sound Mind When the Will Was Changed

Last minute changes are sometimes made to wills when the decedent's mental health declined. In some cases, caretakers and other relatives may take advantage of an unsound mind to get a will changed to their benefit. If the will was changed when the decedent was mentally unfit, the court can alter the will or enforce the terms of a will that was written previously when the decedent was mentally fit.

To prove your case, you'll want to obtain your parent's medical records. If your parent had a caretaker or was in and out of the hospital, you might even want to get a medical expert to testify on your behalf.

Regardless of your situation, if you are a dependent of the decedent or require maintenance and support from them, but find yourself left out of the will, speak to a lawyer immediately. It's crucial that you begin to build your case as soon as possible in order to meet the deadline for filing a TFM claim.


Selling my house to the kids

I am getting older and the family house is a bit too much for me these days. My daughter has offered to buy the family house from me and will let me continue to live in the granny flat. I want to make sure it's all legal and doesn't impact on my arrangements in my will. I know that there are a lot of older people in the same position as me: looking to keep the house in the family, seeking extra cash, and trying to avoid legal issues later. This blog has the tips on how to make sure the arrangement is legal and suits everyone.