Time Limits for Family Provision (TFM) Claims in Victoria

The Six-Month Rule

Section 99 of the Administration and Probate Act 1958 (Vic) requires a family provision claim to be commenced within six months of the date of the grant of probate or letters of administration. "Commenced" means filed in court — an originating motion lodged with the Supreme or County Court of Victoria. Settlement discussions, letters of demand and mediation invitations are not commencement.

The clock does not start when the deceased died, when the Will was read, or when a beneficiary first learns they have been left out. It starts on the day the grant issues. That distinction matters because the gap between death and grant is often several months, and sometimes longer if the estate is complex or the Will is unclear.

Why the Deadline Is So Strict

The strictness of the six-month rule is deliberate. The policy is to give certainty to executors and beneficiaries after a defined period. Without a firm deadline, no executor could safely distribute, no beneficiary could confidently receive, and the administration of estates would be permanently exposed to late challenge.

The Court protects that policy carefully. Extensions of time are granted, but they are exceptional. Applicants who let the deadline pass without a good reason often find that the merits of their claim are never reached.

Extensions of Time

Section 99(3) gives the Court a discretion to extend time where the Court considers it just to do so. The applicant bears the onus. The factors the Court typically weighs include:

• the length of the delay and the reason for it;
• whether the applicant gave notice of the claim within the six-month period (even if proceedings were not filed);
• whether the estate has been distributed and, if so, to what extent;
• the prejudice an extension would cause to the executor and beneficiaries — including any reliance on the expiry of the period;
• the apparent strength of the proposed claim; and
• the conduct of the parties, including any explanations for delay and any attempts to negotiate before commencing.

An applicant who acts promptly, puts the executor on notice within the six months, and has a reason for the short delay (for example, awaiting probate from a contested grant) stands a meaningfully better chance than an applicant who simply lets the deadline pass.

What Executors Should Do During the Window

For executors, the six-month window is a period of controlled risk. The estate should be gathered in and preserved, but substantial distribution before the window closes can expose the executor personally if a claim is then made and succeeds.

Practical steps during the window typically include:

1. Confirm the date of the grant. The entire calculation depends on it. Diary the six-month-and-a-day date.
2. Identify potential claimants. Anyone within the statutory categories — spouse, child, stepchild, dependant — who could foreseeably bring a claim should be on the executor's radar.
3. Communicate carefully. Beneficiaries and potential claimants are entitled to know that the grant has issued. Executors should respond promptly to reasonable requests for information.
4. Avoid premature distribution. Interim distributions are sometimes necessary (for example, releasing a specific gift of personal effects), but substantial distributions before the window closes should be the exception, not the rule.
5. Take advice on any indication of a claim. A letter of complaint, a request for the Will, or an approach from a lawyer is enough to warrant advice. Acting quickly on early signals costs little and avoids a great deal later.

Our companion guide on defending a family provision claim sets out the executor's role in more detail once a claim has actually been brought.

Common Traps for Applicants

• Counting from the wrong date. The deadline runs from the grant, not the date of death or the date of the funeral. Applicants who count from the wrong date often run out of time without realising it.
• Assuming negotiations preserve rights. They do not. Even if the executor is corresponding in good faith, the claim must still be filed in court within six months or extended by order.
• Waiting for "more information". The estate position will rarely be fully clear inside six months. The proceeding can be filed and then refined as disclosure progresses. Waiting for perfect information is how applicants miss the deadline.
• Mistaking informal probate notice for the grant. The date that matters is the date the grant is sealed by the Registry, not the date of a probate advertisement or the date the executor first applied.

What Counts as "Commencement"

A claim is commenced when an originating motion is filed in the Supreme Court of Victoria (or, where jurisdictional limits permit, the County Court). The filing date is the date that stops the clock. The supporting affidavit can follow within the time fixed by the Court's directions.

Filing in time but in the wrong court can create problems, though they are usually fixable. The safer course is to file in the Supreme Court unless a clear jurisdictional reason exists to do otherwise.

Where Time Limits Sit in the Wider Picture

The six-month deadline is one of several time pressures in estate litigation. The eligibility rules, the evidence of need, the size of the estate and any competing claims all have to be assessed alongside it. For a fuller view of who can claim and what the Court weighs, see Family Provision Claims in Victoria: Who Can Challenge a Will? For executor-side disputes that often run alongside family provision claims, see Executor Disputes in Victoria.

Validity challenges — including claims that the will-maker lacked testamentary capacity — are governed by different limitation rules and are often brought alongside or in the alternative to a family provision claim.

For an overview of the firm's broader work on contested estates — including the strategic options open to applicants and executors before formal proceedings — see our pillar guide on estate litigation lawyers in Melbourne, or read about the underlying estate litigation and TFM claims service.

Frequently Asked Questions