While dealing with the wide range of emotions associated with the loss of a loved one, you also have a number of practicalities to consider. From obtaining the necessary medical certifications to organising the funeral and dealing with outstanding financial circumstances such as accounting obligations and insurance policies; the months after your loved one’s death are filled with obligations and responsibilities.
During this time, your own entitlements in relation to the will are often last on your mind. However it is important to understand your rights. If you have been left out of a will or treated unfairly, you may decide to take further action and contest the will under Victorian Law. Although this decision should not be taken lightly, it’s important to be aware that certain time restraints apply to these matters.
TIME FRAMES FOR CONTESTING A WILL IN VICTORIA
In the event that you decide to contest the will, your application must be made:
- Within six months after the date of the grant of probate or administration, OR
- Three months from the time you give notice to the estate.
In some cases the court may give an extension to this time so long as the estate has not been completely administrated; however it’s important to remember that this extension is not a guarantee. A recent case heard in the Victorian Court highlighted the importance of taking action within the legally set timeframe.
TIME LIMITS FOR CONTESTING A WILL: CASE STUDY
In the matter of Robbins v Hume  VSC 128, Justice McMillan dismissed an application to extend the time to contest a will.
This particular case concerned a daughter of the deceased who made an application to extend the period of time to contest the will by one year. At the time of the daughter’s application, the estate assets had been fully distributed and the application was rejected. Justice McMillan confirmed that the executors were entitled to distribute the estate as there was no notice of a claim within the six months deadline after the grant of probate, or three months after receiving notice of a claim.
While the daughter had received a copy of the deceased’s will and an explanation of what she was to receive, she failed to bring her claim within the six months and also failed to provide any notice within this time. Accordingly, Justice McMillan dismissed the daughter’s application on the grounds that the court had no discretion to extend time when the estate had been completely administered.
This case illustrates that the court will rarely grant an extension of time for lodging an estate claim. Therefore, if you believe you have not been fairly provided for in a will, it is critical for you to seek immediate legal advice to ensure your potential claim is made within the time limit.
We understand that this can be a confusing process, made all the more difficult due to the emotional circumstances. The lawyers at Hentys can help you make sense of the legalities of your case and assist you in lodging your claim within the imposed time restrictions.