Extension Of Time Limit To Contest a Will (Vic)

In Victoria, an eligible claimant only has a certain amount of time to make a Testators Family Maintenance Claim against a deceased estate. There may be valid reasons why a claimant cannot file within this time frame. The Supreme Court of Victoria may agree to hear a claim after the deadline if the claimant has sufficient justification. This article explores the circumstances that might prompt the Supreme Court to allow an extension of time limit to contest a will in Victoria.

Testators Family Maintenance Claim

Under the Administration and Probate Act 1958, an eligible person can make a Testators Family Maintenance (TFM) Claim if they are unfairly omitted from a testator’s will, or received an inadequate portion to meet their financial needs.

A Family Maintenance Claim is assessed based on a number of factors, including the history of the relationship between the deceased and the claimant, the total value of the estate, and the claimant’s financial need. The claimant is responsible for proving the strength of their case by demonstrating that they have financial needs which the testator has not accounted for in the will. The court then assesses the claim against the strength of other claims, including those of the existing beneficiaries of the will.

Time Limit To Contest A Will In Victoria

There are statutory time limits that apply to contesting a will in each state and territory of Australia. In Victoria, a claimant only has six months after the court issues a Grant of Probate. While this might seem like a reasonably long time, a grieving relative can find that the time following a loved one’s death is taken up with practical necessities such as paperwork and funeral arrangements. A prospective claimant may also hold back because he or she is unwilling to question the last wishes of the deceased.

It is imperative that anyone who is dissatisfied with their provision under a will act swiftly to meet the statutory deadline.

Extension Of Time Limit Victoria

The court can grant an extension of time limit in Victoria if the delay is minimal, the estate is not fully distributed, and the claimant has a good reason for missing the deadline. For instance, the court may look kindly on a late application if the claimant was unaware of the testator’s death, or the time limit, and subsequently moved quickly to obtain an extension. Another reason why the court may grant an extension is if the claimant received incorrect advice from a solicitor as to the applicable time limit. The onus is on the claimant to prove that a late claim will not negatively impact the current beneficiaries, or otherwise prejudice the estate.

An application for an extension of time limit will not succeed if the executor has fully administered the estate. If the estate is partly distributed, then the claim can only seek distribution from the undistributed section of the estate.

Recent Case Studies

In Robbins v Hume (2015), Justice McMillan refused to grant an extension of time limit for a Family Maintenance Claim. The daughter of a testator filed a claim a year past the deadline after the estate was fully distributed. The claimant was aware of the testator’s death and received a copy of the will in short order. However, she neglected to notify the executor of her intention to contest the will before the six-month time limit. As such, Justice McMillan decided that the executor had acted appropriately in distributing the estate. She further ruled that she could not grant an extension of the time limit for a claim on a completely administered estate.

Similarly, in Maher v Maher (2019), the Court of Appeal upheld the Supreme Court of Victoria’s decision not to allow an extension of the time limit on a TFM Claim. The plaintiffs, in this case, wanted leave to contest the will of their father, who had died in 1976. They claimed that they had always been dissatisfied with their father’s will, but held off on contesting it for forty years as their mother had promised to rectify the situation when she died. The mother did not follow this promise and the sons, therefore, sought to contest their father’s will.

Associate Justice Daly decided not to grant the extension of the time limit for a variety of reasons, including:

• The plaintiffs were aware of their right to contest the will at the time and chose not to in reliance of their mother’s promise;
• The extreme length of the delay was a factor against obtaining an extension;
• There was a real prejudice to the beneficiaries of the will. Due to the passage of time, it would be difficult to gather evidence and assess the plaintiff’s financial position at the time of the testator’s death; and
• The merits of the claim (while not determinative) were not strong.

The judgment in these cases demonstrates the importance of contacting a contested wills solicitor as soon as possible. While there are limited circumstances that may prompt an extension of the time limit, it is far better to meet the deadlines.

The Armstrong Legal contested wills team can answer your questions on making a claim either within the time limit or prepare a late application given your specific circumstances. Please get in touch with the team without delay on 1300 038 223.