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Time Limits To Contest A Will (Vic)

After the death of a loved one, a grieving relative often finds it difficult to focus on anything besides the practical necessities of funeral arrangements and paperwork. It can also seem inappropriate during this time to quarrel over the last wishes of the deceased. Even so, it is imperative that someone who is dissatisfied with the terms of a will acts swiftly because there are time limits to contest a will in Victoria. This article summarises the statutory time frames for bringing a Testator’s Family Maintenance (TFM) Claim in Victoria and notes the limited justifications that the court will accept for late applications.

What Is A Testator’s Family Maintenance Claim

An eligible person is able to contest a will during certain time limits through filing a TFM claim with the Supreme Court of Victoria. Such a claim is warranted when someone feels they have been unfairly omitted from a person’s will, or bequeathed an insufficient portion for their financial needs. The claimant applies to the court seeking adequate provision from the deceased estate.

Who Can Contest A Will In Victoria?

The list of claimants eligible to contest a will in Victoria include:

  • The current domestic, de facto or marital spouse of the deceased;
  • The current registered partner of the deceased;
  • The former spouse or partner of the deceased;
  • A registered caring partner of the deceased;
  • A biological or adopted child of the deceased (under certain circumstances);
  • A stepchild of the deceased (under certain circumstances);
  • An “assumed” child of the deceased (under certain circumstances);
  • A dependent of the deceased.

From this list, it is clear that the deceased’s parents, siblings, grandchildren, nieces and nephews, and cousins are not automatically eligible to lodge a claim against an estate. However, the final category of “dependent of the deceased” does allow any of these individuals, or indeed anyone who was close to the deceased, to lodge a claim if they were financially dependent on the testator prior to their death.

Time Limits To Contest A Will In Victoria

Before lodging a TFM claim, a claimant must notify the executor of the estate in a signed written statement of their intention to contest a will. This notification cannot be renewed and lapses after three months unless the claimant has commenced proceedings in court.

It is important that care is taken to check the time limits to contest a will, as deadlines vary across Australian states and territories. Under section 99 of the Administration and Probate Act 1958, an eligible applicant has six months from the issuance of a Grant of probate or Letters of Administration to contest a will in Victoria.

Can You Contest A Will After Time Limits?

In limited circumstances, the Supreme Court will give leave for a claimant to contest a will outside the time limits. The onus is on the claimant to prove that their late claim will not prejudice the estate or negatively impact the existing beneficiaries. The court will hear from any interested parties and decide whether there is a sufficient explanation for the delay. If the claimant was unaware of the testator’s death or the time limits that attend to contesting a will or received incorrect advice from a solicitor, then the court may decide there are reasonable grounds for a delayed claim.

The court will not hear a claim if the executor has completed the administration of the estate and the assets have been distributed to the beneficiaries. In the event that the executor has only partially completed their duties, then the application and any attendant court order must not impact on any pre-existing distribution.

Case Study On Time Limits To Contest A Will

In the 2015 case of Robbins v Hume, Justice McMillan denied a deceased’s daughter the right to make a late application to contest a will. In this matter, the daughter brought a claim a year past the time limit, when the estate was fully distributed. The court heard that the claimant was aware of both the deceased’s death and received a copy of the will, but failed to notify the executor of her intent to contest the will before the limitation date. In that event, Justice McMillan found that the executor acted correctly in distributing the estate and ruled that the court had no discretion to hear a late claim against a completely administered estate. This case demonstrates the importance of contacting a solicitor as swiftly as possible if you are considering contesting an estate, as the court rarely grants extensions to the time limits to contest a will in Victoria.

Our Contested Wills Team can answer any questions you have about time limits to contest a will in Victoria. We can help you to lodge a claim within time restrictions, or help you draft a case for late application. If you require any advice on probate law or any other legal matter, please make contact with our team or call Armstrong Legal on 1300 038 223.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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