Beat the Clock: Contesting a Will in Victoria

Losing a loved one, such as a parent is an emotional and difficult time. Whilst you are processing the grief you may learn that your mother or father has left you out of their Wills. Alternatively, you may not have even been aware or informed that your parents have passed away, but only to find out several months or years later that you have not been provided for in their Wills. In these circumstances, the urgency to act becomes even more crucial if you wish to contest the Will for further provision from the estate. When contesting a Will in Victoria there are strict time limits. In Victoria, a claim should be made within 6 months from the date of the ' grant of probate (if the deceased left a will) or letters of administration (if the deceased did not leave a Will). The 6-month deadline was strictly enforced by the Court in Younan v Younan (No 2) [2015] VSC 549.

Younan v Younan (No 2) [2015] VSC 549.

Summary of facts

George Younan (the deceased) passed away on 15 August 2013. The deceased left a Will appointing his two sons ' Joseph and Akram as executors of his estate. Probate of the Will was granted to Joseph and Akram on 13 October 2014. Under his Will, the deceased left his estate to his wife (who predeceased him) and then to their sons Joseph and Akram. The deceased made no provision in his Will for his daughter Mona. Therefore, Mona engaged solicitors to contest the deceased's Will for further provision from the deceased's estate. ' Mona had 6 months from the date of the grant of probate to make an application to the Court for a family provision claim under Part IV of the Administration and Probate Act 1958 (Vic) (the Act). Despite Mona giving notice of her intention to make an application for provision, Joseph and Akram made an early distribution of the estate to themselves as beneficiaries. Under section 99 of the Act, the Court cannot hear an application for provision unless it was made 'within six months after the grant of probate of the Will'. The deadline for Mona to lodge her application for provision was 13 April 2015. Mona filed her application on 14 April 2015, which was one day late. As a result, Mona was required to make an application to the Court to seek leave to appeal out of time.

Court's decision

In determining whether an extension of time should be granted, the Court considered the following discretionary principles:

• the length of delay in bringing the application;
• the applicant's explanation for the delay;
• the strength of the applicant's case; and
• if accepting the application will cause any prejudice to the executor and the beneficiaries.

The Court determined that Mona satisfied these discretionary principles. The delay in bringing the application was one day and was the fault of her former solicitors. Mona had a strong case for an order of family provision as a child of the deceased she was owed a moral obligation for adequate provision. In addition, the only real prejudice to Joseph and Akram as executors would be in having to defend the application and if established, suffer the risk of being personally liable. However, ' section 99 of the Act only allows the Court to grant an extension when the application is made "before the final distribution of the estate". ' Joseph and Akram contended that Mona failed to file her application for provision within the six-month period of the grant of probate and the Court has no power to grant the extension as the estate has been finally distributed. If Mona had made her application for provision within time, Joseph and Akram as executors would be personally labile because they made the distributions early.'  Unfortunately, it was not the case as Mona filed her application for provision late and final distribution represents a al bar. As such, the Court 'with regret' dismissed Mona's application.

Key takeaways

This case demonstrates the strictly enforced statutory deadline that operate when contesting a Will for further provision. This also highlights the importance of acting in a timely manner to ensure that your application for provision will be considered by the Court. As established in Younan v Younan (No 2) the time limit in section 99 of the Act was not extendible because the estate had been finally distributed. However, the Court can grant an extension of time if the estate is not fully distributed and if there is a good reason for missing the deadline. If you are considering bringing a claim we can assist you to ensure that you meet the statutory deadline and advise you on the merits of your claim. ' Alternatively, we can also advise you on the prospects of making an application for an extension of time to bring a claim. Contact Hunt & Hunt's experienced Wills & Estates lawyers today to discuss on 03 8602 9202 or at [email protected]. Article written by Jack Watson (Graduate) & Linda Hart (Principal)