Making a Family Provision Claim out of Time: Re Monument; Monument v Monument | Armstrong Legal

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Making a Family Provision Claim out of Time: Re Monument; Monument v Monument


In the 2022 decision of Re Monument; Monument v Monument [2022] VSC 205, the Supreme Court of Victoria considered whether an extension of time should be granted to the claimant, who was the adult daughter of the deceased, to bring a family provision claim for proper provision from her mother’s estate. This article summarises the decision and the principles considered by the court.

Facts of Monument v Monument

The deceased died on 24 September 2018 and was survived by her four children. She left a will that was accompanied by three handwritten letters further detailing the deceased’s rationale and testamentary intentions.

The will provided for the following distributions:

  1. The first defendant was gifted the family home and two specific items of personal property;
  2. The residual estate was to be distributed equally between the four children;
  3. Each child was to take back anything that they had given to the deceased as a present during her lifetime and the remaining household contents and personal effects were to be divided between the four children.

Furthermore, the will provided a paragraph containing a statement as to the reasons why the family home was to be gifted to the first defendant and not the other three children.

The applicant brought a Family Provision Claim for a family provision order for proper provision of her mother’s estate. Her claim was made out of time, so she sought an order for an extension of time to commence the family provision proceedings.

The first defendant failed to appear at the hearing in March 2022 and the court determined to proceed with the trial in the first defendant’s absence. This decision was based on a repeated failure by the first defendant to properly engage in the proceeding and an absence of any compelling evidence supporting the first defendant’s claim in failing to appear at the hearing.

Legal Principles Considered in Re Monument

In Re Monument; Monument v Monument, the court had to determine whether to exercise its discretionary power and grant an extension of time to the applicant to bring a family provision claim. The court adopted the approach in Maher v Maher in determining which matters to consider when determining whether to exercise its discretion.

In summary, the matters considered were the following:

  1. The length of the delay;
  2. The reasons for the delay;
  3. Whether prejudice to other interested parties would result from making an order; and
  4. The strength of the case.

The Court of Appeal in Maher v Maher also held that the court’s discretion to grant an extension of time is not confined to any rigid set of rules and that it requires a balancing exercise between the interests of justice and the statutory rights of an eligible applicant to bring a claim for the proper provision under a deceased’s will.

Probate was granted to the first defendant in May 2019 and the application was filed 55 days out of time. However, prior to the application being made, there was correspondence from the applicant in December 2018 putting the first defendant on notice that she would be contesting the mother’s will. The letter further noted the applicant’s wishes to minimise legal costs by participating in a mediation without the need to issue proceedings.

If the court determined that an extension of time was to be granted to the applicant, the questions for the court were whether the deceased’s owed a moral duty to provide for the applicant’s proper maintenance and support and whether the distribution of the deceased’s estate failed to make adequate provision for the proper maintenance and support of the applicant.

The applicant had endured a tumultuous upbringing. Her mother had been an alcoholic and had subjected the applicant to conflict, verbal and physical abuse, and neglect throughout her childhood years, which resulted in the applicant leaving the family home at the age of 17.

In determining whether the deceased owed a moral duty to the applicant, the court considered the decision in Re Christu, whereby the court observed:

“when considering the question of ‘moral duty’ the court places itself in the position of the wise and just testator, judged according to current community standards.”

Court granted extension of time for making Family Provision Claim

The court held that the reasons for the delay in making a claim was that the applicant was trying to negotiate a timely and cost-efficient settlement without the need of resorting to litigation, which was evidenced in the applicant’s letter to the first defendant dated December 2018. The delay was not found to have been lengthy and there was no evidence that any prejudice would arise as result of the delay.

It was also held that the applicant’s case was a strong one and that it was in the interests of justice for the court to grant an extension of time to the applicant to make a family provision claim. For these reasons, the court granted an order for an extension of time to the applicant.

In respect of the family provision claim brought by the applicant, the court held that the deceased had a moral duty to provide proper maintenance and support to the applicant and that the will did not make adequate provision for the applicant’s proper maintenance and support.

In weighing up all of the relevant factors, it was held that a wise and just testator in the position of the deceased would have viewed it as her moral duty to make provision for the proper maintenance and support of the applicant. For this reason, the court ordered that provision be made for payment of 50 per cent of the net proceeds of the estate to be paid to the applicant.

This case highlights that it is essential that an eligible applicant make an application for family provision without unreasonable delay, as the court will exercise its discretion when allowing an extension of time only if convinced the applicant has a strong case and that there were good reasons for the delay.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

This article was written by Jodie Hall - Associate - Melbourne

Jodie graduated from Monash University in 2016 with a Bachelor of Laws and graduated from RMIT University in 2010 with a Bachelor of Arts (Criminal Justice) degree. She completed her Graduate Diploma of Legal Practice at Leo Cussen Centre for Law in 2017. Jodie was admitted to practice in the Supreme Court of Victoria in September 2017 and worked as...

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