Time limits and extension of time

 

2.38    An application for family provision must be made within six months of the grant of probate or letters of administration, although the court may extend the time a person has to make an application. 65

2.39   The principles that govern extension of time, as set out by Justice Gillard in Groser v Equity Trustees, are:66

•    whether the estate has been finally distributed, because once the estate has been distributed, the rights of the beneficiaries become ‘conclusive and indefeasible’

•    whether beneficiaries are likely to be prejudiced by an extension of time

•    the period of delay and the reason given for it, and

•    the strength of the substantive claim—if the claim is unlikely to succeed, there would be little point in granting an extension of time in which to bring it.

2.40   However, the Victorian Court of Appeal has held that the discretion conferred on the court to grant an extension of time ‘should not be confined by any rigid rules’.67  This suggests that the criteria the courts consider in determining whether or not to grant an extension of time should serve as a guide only, rather than as rules of strict application.

2.41   If the court grants an extension of time for a party to make an application for family provision, any property that has already been distributed cannot be made subject to an order for family provision.68

2.42   The National Committee for Uniform Succession Laws recommended that applications for family provision should be made no later than 12 months after the date of the deceased person’s death, with a discretion of the court to extend time.69

 

Question

FP2   Is the current period within which an application for family provision can be made in Victoria(six months from the grant of representation):

(a) satisfactory?

(b) too short?

(c) too long?

 

FOOTNOTES

 65   Administration and Probate Act 1958 (Vic) s 99.<br 66   Groser v Equity Trustees Ltd (2007) 16 VR 101, 105 [27], 107 [36] (Gillard J).
 67   Ansett v Moss [2007] VSCA 161 (22 October 2007) [6] (Buchanan JA, Redlich JA and Cavanough AJA agreeing).
 68   Administration and Probate Act 1958 (Vic) s 99.
 69   National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General, Queensland Law Reform Commission Report 58 (2004) Draft Family Provision Bill 2004 cl 9 (‘2004 Supplementary Report’).

 

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