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The critical time limit for bringing claims against an estate

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By Deborah Kliger, Law Graduate, MST Lawyers

In the recent Supreme Court case of Robbins v Hume [2015] VSC 128 Justice McMillan dismissed an application to extend the time for making an estate claim. The decision highlights the importance of seeking immediate legal advice and making a claim within the statutory time limit, namely 6 months from the grant of probate.   

The deceased’s estate:

The case concerned a deceased’s estate valued at $741,593. The estate comprised of a $600,000 property in Vermont and a personal estate of $141,593. The deceased appointed his son as executor of his will. The deceased left his Vermont property to his son and a sum of $28,228.20 to each of his five daughters.

The plaintiff’s estate claim:

A daughter of the deceased (“the plaintiff”) made an estate claim more than one year out of time. The plaintiff applied to the court to extend the period for making her claim. By this stage, the estate assets had been finally distributed.

The plaintiff sought an order restraining her brother from dealing with or disposing of the sale proceeds of the Vermont property. The plaintiff also sought a declaration that her brother held the sale proceeds as a constructive trustee. The plaintiff advanced the following arguments:

  1. As an executor, the plaintiff’s brother has a fiduciary obligation (an equitable duty) to safeguard her interests. The plaintiff’s brother failed in his duty;
  2. Alternatively, as executor and trustee the plaintiff’s brother has a duty to be even- handed between all beneficiaries of the estate. This duty extends to the plaintiff being a potential claimant for further provision.

Strict enforcement of the time limit:

The court rejected the plaintiff’s arguments. Justice McMillan confirmed that executors are entitled to distribute an estate if there is no notice of a claim within the time limit. The plaintiff received a copy of the deceased’s will and an explanation of what she was to receive. However, the plaintiff failed to bring her claim within the statutory timeframe. Accordingly, Justice McMillan dismissed the plaintiff’s application as the court has no discretion to extend time when an estate has been finally distributed.

The case illustrates that the court will rarely grant an extension of time for bringing an estate claim. It is therefore critical that potential claimants seek immediate legal advice and bring claims within the time limit.

For further information, please contact our Wills & Estates team by email wills-estates@mst.com.au or by telephone +613 8540 0230.