Calculating the 6 month time limit for claiming further provision from a deceased estate

By Deborah Kliger, Law Graduate, MST Lawyers

The recent Supreme Court case of Younan v Younan and Anor [2015] VSC 258 clarifies the method of calculating the 6 month time limit for making estate claims. In this case the plaintiff brought her claim for further provision one day out of time. Associate Justice Lansdowne dismissed the application on the grounds that it was brought outside the 6 month time limit. This decision reinforces the importance of seeking immediate legal advice to ensure your estate claim is made within time.

In this case the deceased died on 15 August 2013. Probate of his last will was granted on 13 October 2014. The deceased’s daughter, the plaintiff, filed an originating motion seeking further provision on 14 April 2015. The defendants objected to the originating motion on the basis that it was filed one day out of time.

The time limit for bringing an estate claim is set out in the Administration and Probate Act 1958 (“APA”). Section 99 of the APA requires that an application for further provision “is made within 6 months after the date of the grant of probate or letters of administration”. The wording of this provision is ambiguous and has been the cause of much confusion for lawyers and claimants alike.

Section 44(1) of the Interpretation of Legislation Act 1984 (“ILA”) states that where “a period of time is expressed to begin on, or to be reckoned from a particular day, that day shall not be included in that period”. Accordingly, it was held that the 6 month period starts running from the day after the grant of probate. Further, the term ‘six months’ was interpreted to mean ‘six calendar months’ as per section 44(6)(b) of the ILA.

Following the above principles, Associate Justice Lansdowne held that the time period commenced on 14 October 2014 and ended 6 calendar months later, being 13 April 2015. Based on this calculation, the plaintiff’s originating motion was filed one day out of time. As a result, the originating motion for further provision was set aside.

This case highlights the importance of seeking legal assistance to make a family provision claim within the prescribed time. You cannot bring a claim out of time without leave of the court and leave will not be granted if the estate has been distributed.  

This article focuses on claims for further provision from a deceased estate. However, if you wish to challenge the validity of a Will due to lack of capacity, undue influence or any other reason, please seek advice immediately in case a caveat needs to be lodged against the probate application.

For further information, please contact our Wills & Estates team by email wills-estates@mst.com.au or by telephone +613 8540 0200.