In Victoria, a Testator’s Family Maintenance (TFM) claim, also known as a family provision claim, allows specific individuals to contest a Will if they believe they have not received sufficient provision from the deceased’s estate. This is governed by Part IV of the Administration and Probate Act 1958 in Victoria. Eligible individuals include current or past spouses, children (biological, adopted, or stepchildren), and other dependents.
The court evaluates a TFM claim by assessing:
1. The claimant’s needs and financial requirements.
2. The size of the testator’s estate, financial duties to other beneficiaries, and relevant circumstances.
3. The testator’s moral responsibility towards the claimant.
4. The claimant’s behaviour could disqualify them from benefits.
If the court finds that adequate provision was not made, it can mandate a redistribution of the estate to benefit the claimant, possibly affecting other beneficiaries’ shares.
Background
- Donald Warring, (the deceased) aged 80, died in February 2017. He was the founder of MCS and retired in 2011.
- He owned the Bell Street Property, which was leased to MCS and critical to its telecommunications operations.
- Ms Perton, (the executrix) his daughter, had been the company’s sole director since 2014.
- Ms Walters (the plaintiff) had lived with thhe deceased in a long-term domestic relationship and was left modest provisions under the Will.
- MCS’s borrowings of $2.8 million were guaranteed by the deceased (most recently in 2016) and secured by mortgages over multiple properties—including Bell Street, Eaglemont, and Ferny Creek.
- The 2015 will left the Bell Street Property to the executrix and gave the plaintiff a cash bequest and limited housing support.
Following the plaintiff’s notification of a claim, the executrix transferred the Bell Street Property to herself and later registered a new mortgage over it.
The matter
Walters v Perton [2023] VSC 37 & Perton v Walters [2025] VSCA 133 illustrate the moral obligations owed to de facto partners under a Will and the procedural risks of introducing new legal arguments too late in estate litigation.
At the centre of the dispute was the estate of the deceased (Donald Graeme Warring) a retired telecommunications entrepreneur, and his long-term de facto partner, plaintiff/respondent (Lynne Walters). Following the death of the deceased in 2017, the plaintiff brought a successful family provision claim. (Walters v Perton [2023] VSC 37)
The deceased’s daughter, Jane Perton, the executrix and principal beneficiary, challenged the judgment (Perton v Walters [2025] VSCA 133), particularly on whether the Bell Street property was encumbered at the deceased’s death. The appeal failed, but not before exposing key litigation lessons.
The matter
In Walters v Perton [2023] VSC 37, the plaintiff applied for further provision from the deceased’s estate under Part IV of the Administration and Probate Act 1958 (Vic). The Will had left the plaintiff:
- Six months’ rent-free accommodation in their Eaglemont home;
- $200,000 from its sale proceeds; and
- $10,000 for relocation costs.
The plaintiff, aged 73 at the deceased’s death, had been financially dependent on him during their 20-year domestic relationship. Following his death, the plaintiff lived in rental accommodation with her adult son and grandchildren. After her son passed away unexpectedly, the plaintiff was left to pay full rent, surviving on a modest pension and small savings.
The estate’s value was $2.95 million at the hearing, and the executrix was the only competing claimant.
The Court found that the Will failed to provide the plaintiff with proper maintenance and support. It awarded her a total of $1.54 million, comprising:
- $1.38 million to purchase a home;
- $120,000 for a financial buffer; and
- $40,560 for contingencies.
Was the Bell Street Property Encumbered?
The executrix, who had received the Bell Street Property under the Will, argued on appeal that the trial judge erred in finding it unencumbered at the deceased’s death. The property had been subject to a 2012 NAB mortgage securing the business debts of MCS, a company the deceased founded and from which he had retired in 2011.
The executrix introduced in her closing submissions at trial a claim that this mortgage created a primary liability against the estate, independent of a September 2016 guarantee. This theory was neither pleaded nor raised earlier in the proceedings. The plaintiff’s counsel strongly objected, and the trial judge disregarded the argument.
On appeal, the executrix reframed the issue of contractual construction, arguing that the mortgage secured “all monies owing,” including loans made at the deceased’s implied request. However, the Court of Appeal rejected this as a late and unpleaded case, lacking evidentiary support.
The appeals
The executrix brought formal applications for leave to appeal before the Court:
1. The TEP Proceeding
In the Trusts, Equity, and Probate (TEP) List, the executrix challenged a declaratory order on seven grounds that the Bell Street Property formed part of the estate at its unencumbered value as of the date of death. The executrix also challenged the trial judge’s treatment of the 2012 mortgage and the timing of any enforceable liability.
2. The Part IV Proceeding
In parallel, the executrix sought leave to appeal from the family provision judgment, arguing that if the deceased had left the Bell Street property encumbered, no adequate estate existed to make provision for Ms Walters.
The Court of Appeal, dismissing both applications, found that:
- The 2012 mortgage secured the 2016 guarantee, not a standalone liability.
- No demand on the guarantee was made before the deceased’s death.
- The estate, including the Bell Street Property, was not encumbered as a matter of enforceable liability at death;
- The executrix failed to plead or prove her argument at trial, and could not fix that failure on appeal.
Takeaways
- Testamentary provision must reflect dependency and contribution—an increase of a modest provision to a long-term financially dependent partner if the estate can support them.
- Pleadings and procedural fairness are non-negotiable. Legal arguments—particularly those with factual implications—must be pleaded and supported by evidence. Raising new theories at the eleventh hour will be struck down.
- Registered mortgages do not always mean actual liabilities. If no demand is made or liability crystallised, the presence of a mortgage may not reduce estate value in the way executors might expect.
- Appeals are not second chances to run abandoned arguments. The appellate court will not entertain theories that are not properly raised at trial.
Walters v Perton [2023] VSC 37 and Perton v Walters [2025] VSCA 133 illustrate how legal clarity, procedural discipline, and equitable principles intersect in estate litigation. Reminding us that substantive fairness and litigation conduct matter and that failing to prepare the proper case from the outset can have real consequences.