Like the vast majority of legal claims, individuals wishing to pursue their Estate claim must do so within a certain time frame. While this time limit varies from claim to claim, Family Provision claims seeking to challenge an Estate normally have only six months within which they must lodge their claim. This ‘effective’ time limit is imposed by a requirement of the Administration and Probate Act 1958 (Vic) that such claims be brought within six months of the Grant of Probate.
This being said, it is certainly possible to bring claims after six months, however, Courts will only provide a time extension where circumstances are reasonable enough to permit it. Furthermore, one of the greatest considerations when granting an extension of time is whether the Estate has been distributed. The net effect of this is that if the Executor is particularly diligent and has already distributed the Estate after six months, there may not be an Estate left to challenge.
While it is possible to apply for this time extension where circumstances permit, an application for an extension is fraught with difficulties and complexities. The recent case of Robbins v Hume  in the Victorian Supreme Court provides an excellent exploration of these difficulties.
Case Study: Robbins v Hume
The Deceased in this case passed away on 7 June 2013, leaving behind six children. In the Deceased’s Will, he nominated one of his sons as the Executor of the Estate and left him a house in Vermont worth roughly $600,000, and the rest of his Estate to be divided equally amongst the other five children. By June 2014, all of the assets of the Estate had been distributed amongst the beneficiaries.
On 2 March 2015, one of the daughters, the Plaintiff, made an application to the Supreme Court for an injunction against her brother to try to stop him from spending any more of the money he had received from the sale of the Vermont property, and also requested that the Court extend time for her to make a Family Provision claim.
To support these applications, the Plaintiff contended that she had suffered a stroke in April 2012, and since then was living in a nursing home and required fairly comprehensive care – she was physically and mentally unable to bring a claim any earlier, and was unaware of any right to do so at the time the Estate was distributed.
The Court, in considering her application to extend the time limit, made it clear that the fact that the claim was brought much longer than six months after the Grant of Probate as well as the fact that the Estate had already been completely distributed meant that granting the extension would be impossible. This would be impossible simply because the Court could not reach into the pockets of people legitimately granted funds or property under the Will unless some impropriety could be demonstrated.
The Plaintiff argued that this impropriety had occurred, and that it came in form of the Executor failing to inform her of her right to lodge a Family Provision claim. In determining this issue, the Court went on to say that although the Executor had a number of duties and rights, letting the beneficiaries know that they had a right to bring a Family Provision claim was not one of them – in fact, the Executor has no obligation whatsoever to safeguard the interest of a potential claimant.
What Should We Take Away From Robbins v Hume?
There are two crucial points to take away from Robbins v Hume. The first is that although an application for an extension of time is possible, a claimant cannot expect a Court to reach into the pockets of people who have not done anything wrong. When a Will is challenged, the Estate, rather than the beneficiaries, are involved – it would be unfair to drag in parties who had nothing to do with the distribution of the Estate and punish them. Similarly, where the Estate has already been distributed, a Court cannot award money where there is none left.
The second point to make is that your rights as a Claimant are entirely your own, and there cannot be an expectation that the Executor will keep you up to speed as to the six month time frame.
The greatest take-away from Robbins v Hume is that where you harbour some concerns about the way in which the Estate is being distributed, or the extent of (or total lack thereof) your own provision under a Will, it is extremely important that you act on it as soon as possible.
At Hentys we can help you contest a Will, so contact our experts today!
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