Late Testators Family Maintenance Claims (Vic)

In Victoria, an eligible person can make a testators family maintenance claim under Part IV of the Administration and Probate Act 1958. This provision allows certain people to seek an adequate share from a deceased person’s estate if they believe they have been left without proper financial support. While there are strict statutory timeframes for making such claims, a late application is possible under some circumstances. The process for lodging a late claim can be complex, and the decision to permit such claims rests with the Supreme Court. The eligibility of the claimant is a threshold issue, and it is considered alongside the reason for the delay when determining whether to allow a late claim. This article examines the legal framework, procedures, and key considerations for late testators family maintenance claims in Victoria.

Time limits for testators family maintenance claims

Under Victorian law, a testators family maintenance claim must be filed within six months of the grant of probate or letters of administration. This time limit is relatively strict and intended to ensure the timely administration of estates. Executors need certainty to distribute assets and finalise estates, and delays in resolving claims can create financial and emotional strain on all parties involved. A claim is considered “late” if it is filed after the six-month deadline has expired. The court has discretion to permit late claims, but only in limited circumstances. If an individual wants to pursue a late claim, they must first apply for the court’s permission, providing reasons for the delay and demonstrating that their claim has merit.

Reason for late claims

Courts in Victoria have discretion to permit late claims but are cautious to allow this type of exception. The claimant must provide compelling reasons for the delay and demonstrate that it is just and equitable to allow the claim. Particularly relevant factors include:

Length of the delay

A delay of a few days or weeks is more likely to be excused than a delay of several months or years. The court has indicated that the longer the delay, the harder it is to justify the claim.

Reason for the delay

The court examines the reasons provided by the claimant for filing the claim after the deadline. Legitimate reasons carry more weight than simple oversight. For instance, claimants may be unaware that the testator has passed or that the executor has applied for probate. If the executor delays notifying potential claimants about their rights, or provides incomplete or misleading information about the estate, this may justify allowing a late claim. Similarly, if the claimant received incorrect legal advice, this may be accepted as a legitimate reason for a delay.

Prejudice to the estate

The court will consider how a late claim might prejudice the estate and other interested parties. Courts are mindful of the need for finality in estate administration. Permitting late claims too readily undermines this principle and creates uncertainty for executors and beneficiaries. For example, if the estate has already been distributed, allowing a late claim may require clawing back funds from beneficiaries, causing financial and emotional disruption. On the other hand, if the estate remains largely intact, the prejudice would likely be minimal.

Personal circumstances of claimant

Claimants may delay seeking legal advice, particularly if they face financial, medical, or personal challenges. Courts are sometimes sympathetic to individuals who demonstrate genuine difficulties in accessing legal assistance due to circumstances beyond their control.

Strength of the claim

The court also evaluates the merits of the claim to decide whether the claimant has a strong case for provision from the estate. Even if the delay is substantial, courts may permit a late claim if the claimant demonstrates strong grounds for financial provision and clear evidence of need or dependency. Conversely, if the claim appears unlikely to succeed, the court may be less inclined to allow a late claim, even if the delay would otherwise be excusable.

Eligibility to make a testators family maintenance claim

Only eligible persons can bring a testators family maintenance claim, whether on time or late. In Victoria, the following people are eligible to make a claim, including the deceased’s:

• spouse or domestic partner (someone living with the deceased on a genuine domestic basis);
• former spouse or domestic partner who, because of the deceased’s death, was prevented from initiating or finalising proceedings under the Family Law Act 1975;
• child who is under 18 (including a stepchild, adopted child or assumed child), or a child under 25 who is a full-time student, or has a disability;
• adult child who is struggling financially and cannot reasonably provide for themselves;
• grandchild, in certain circumstances (for instance, where they were financially dependent on the deceased); and
• registered caring partner who was not acting for fee or reward.

In addition, a person who was a member of the deceased’s household and who was wholly or partially dependent on the deceased may be eligible to make a claim against their estate.

Process for filing a late family provision claim

There are two stages in the process of lodging a late claim. The claimant must first file an application seeking the court’s permission to lodge the testators family maintenance claim out of time. This application should include:

• an affidavit explaining the reasons for the delay;
• evidence demonstrating the merits of the claim; and
• information about the estate’s distribution status and any potential prejudice to the beneficiaries.

If the court grants the extension, the next step is for the substantive claim for provision to proceed in the usual manner. The court will then assess whether the claimant is entitled to receive provision from the estate and, if so, determine the appropriate amount.

In Re Monument; Monument v Monument [2022], the Supreme Court addressed an application from an adult daughter seeking an extension of time to bring a family provision claim against her late mother’s estate. Despite the claim being 55 days out of time, the court granted the extension, citing the applicant’s efforts to settle the matter cost-effectively and the lack of prejudice to other parties resulting from the delay. The court found the deceased had a moral duty to support the applicant, who had endured a challenging upbringing. The applicant was awarded 50% of the estate’s net proceeds.

Please get in touch with Go To Court Lawyers on 1300 636 846 if you have questions about an unfair will or any other legal matter.