Time limits most commonly missed in relation to wills, a claim example and lessons learned.
What's on this page?
Wills limitations
| Action | Time limit | Legislation | Extension availability |
|---|---|---|---|
|
Action
Rectification of will |
Time limit
6 months from the date of grant of probate. |
Legislation
s.31 Wills Act 1997 (Vic) |
Extension availability
The court can extend time if it thinks fit, provided the final distribution of the estate has not been made – s.31(3) Wills Act 1997 (Vic). |
|
Action
Probate caveat |
Time limit
Expires 6 months from the date the caveat is lodged or 30 days from the date the Registrar gives notice of an application for the grant unless the caveator serves an objection within the 30 days. |
Legislation
r.8.03 Supreme Court (Administration and Probate) Rules 2014 (Vic) s.58 Administration and Probate Act 1958 (Vic) |
Extension availability
No extension available |
|
Action
Family provision claims (Part 4) |
Time limit
6 months from the date of grant of probate or letters of administration. |
Legislation
s.99 Administration and Probate Act 1958 (Vic). |
Extension availability
The court can extend time if it thinks necessary provided the final distribution of the estate has not been made – s.99(2)-(3) Administration and Probate Act 1958 (Vic). |
|
Action
Grant of probate |
Time limit
14 days after publication of notice of intention to administer estate. |
Legislation
s.79 Administration and Probate Act 1958 (Vic). |
Extension availability
|
Claim example
A practitioner acted for a beneficiary who was disappointed that, pursuant to the terms of her father’s will, she received a relatively small monetary amount while her wealthy sibling received the balance of the estate worth several hundred thousand dollars.
The practitioner consulted Counsel who drafted an originating motion and affidavit in support which was sent to the practitioner for issue and service one month before the six month limitation period under section 99(1) of the Administration and Probate Act 1958 (Vic) expired.
Three days later the practitioner’s assistant attempted to file the documents electronically with the court. For unknown reasons the filing was unsuccessful. The system did not send an automated confirmation of filing or rejection and the filing could only be confirmed by logging on to the system’s website and checking.
At the same time, the practitioner’s practice management system was not operating as the office was in the process of transition to a new system. A reminder to review the filing would normally have been created on the office’s system when the documents were submitted for filing. Because the system was not functioning, the assistant did not receive the reminder.
The practitioner and the assistant were both distracted by trying to resolve the problems with the practice management system. The assistant then did not review the matter for several weeks because she was being trained on the new computer system and when she came back to the matter, she did not think to review the filing. The practitioner discovered the failed lodgement almost 12 months later and in the meantime, the estate had been distributed.
Lesson
- When there is disruption in the office such as implementing a new practice management system or moving, put processes in place to ensure all necessary steps on matters are completed, especially when close to limitation deadlines.
