Information Centre · Contested Wills & TFM Claims
Time Limits for Family Provision (TFM) Claims in Victoria
The six-month deadline, when it runs from, when the Court will extend it, and what executors and applicants should do during the window.
Time limits shape much of Victorian estate litigation. Part IV of the Administration and Probate Act 1958 (Vic) sets a six-month deadline from the date of the grant of probate or letters of administration for making a family provision application. Under section 99(2), the Court may extend that time where it considers it appropriate.
This article explains when the deadline runs from, how extensions of time work in Victoria, what executors need to consider during the six-month window and the section 99A executor-protection framework.
The Six-Month Rule
Section 99 of the Administration and Probate Act 1958 (Vic) requires an application under Part IV to be made within six months after the grant of probate or letters of administration. The application is made by filing in a court with jurisdiction to hear the claim. Under section 90, "the Court" for Part IV means the Supreme Court of Victoria or the County Court of Victoria. Correspondence, demands and mediation invitations are not the filing of an application; a written notice of intention complying with section 99A(4) can, however, be relevant to executor protection under section 99A (discussed below).
The six months runs from the day the grant issues, not from the date of death and not from the date the Will is read or a beneficiary first learns of its terms.
Extensions of Time
Section 99(2) empowers the Court to extend time where the Court considers it appropriate, including after the six-month period has expired. Section 99(3) requires the extension application to be made before the final distribution of the estate. Section 99(4) provides that an extension does not disturb distributions made before the application for extension.
Case law identifies matters that may be relevant to how the Court exercises the discretion in a particular case. These may include:
- the length of the delay and the reasons for it;
- whether the applicant gave the executor notice of the intended claim within the six-month period;
- whether the estate has been distributed and, if so, to what extent;
- any prejudice to the estate, beneficiaries or others, including reliance on the expiry of the period;
- the apparent merits of the proposed claim; and
- the conduct of the parties.
These are not statutory prerequisites and no outcome can be predicted in advance. An applicant considering a late application should obtain advice on the section 99(2) discretion and on the section 99(3) requirement that the application be made before final distribution.
What Executors Should Consider During the Window
The six-month window is a period of controlled risk for executors. The estate should be gathered in and preserved. Distribution during the window carries risk if a family provision application is then made and succeeds. Section 99A of the Act provides a statutory protection for distributions made after the six-month period in the circumstances the section defines; it does not automatically apply merely because six months have elapsed.
Practical steps during the window may include:
- Confirm the date of the grant. The whole calculation depends on it.
- Identify potential eligible persons. Persons within the statutory eligibility categories who may bring a claim should be identified.
- Respond to enquiries appropriately. Executors should respond to requests from beneficiaries and potential claimants in accordance with applicable disclosure obligations and legal advice on the particular matter.
- Consider timing of distributions carefully. The exposure of any distribution during the six-month window should be considered against section 99A and the general law.
- Take advice on any written notice of intention or filed application. A written notice of intention complying with section 99A(4), or a filed application, may affect executor protection under section 99A and warrants advice.
Our companion guide on defending a family provision claim deals with the executor's role once a claim has been brought.
Section 99A: Executor Protection
Executor protection for distributions of the estate is provided by section 99A of the Administration and Probate Act 1958 (Vic), not section 99. Section 99A(3) provides protection for a legal personal representative who makes a distribution after the six-month period where the representative has not had notice of an application; or, where a written notice of intention has been given in accordance with section 99A(4), no written notice of a filed application is received within three months after the notice of intention. The interaction between the notice regime and the section 99A protection is technical, and each part of section 99A must be considered on its own terms — advice before distribution is prudent.
Points for Applicants to Note
- Counting from the wrong date. The six-month period runs from the grant, not the date of death.
- Correspondence does not commence proceedings. A letter of demand or notice of intention is not itself the filing of an application under section 99.
- Extension application must precede final distribution. Under section 99(3), an application for extension must be made before final distribution of the estate; under section 99(4), an extension does not disturb distributions already made.
- Advertisement dates vs the date of the grant. The date that matters for section 99 is the date the grant is sealed by the Registry.
What Counts as Making an Application
An application under Part IV is made by filing in a court with jurisdiction to hear the claim. Under section 90 that is the Supreme Court of Victoria or the County Court of Victoria. Jurisdictional considerations may inform the choice of court in a particular case, and legal advice on the appropriate court is prudent.
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 may arise 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 may be 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
What is the deadline for a family provision claim in Victoria?
Section 99 of the Administration and Probate Act 1958 (Vic) requires an application to be made within six months after the grant of probate or letters of administration. Section 99(2) empowers the Court to extend that time where it considers it appropriate, including after the six months have expired. Under section 99(3), an application to extend time must be made before the final distribution of the estate. Under section 99(4), an extension does not disturb any distribution made before the application for extension.
Can the Court extend the six-month deadline?
Yes. Under section 99(2) the Court may extend time where it considers it appropriate, whether before or after expiry of the six-month period. Section 99(3) requires the extension application to be made before final distribution of the estate, and section 99(4) provides that an extension does not disturb distributions already made. What the Court takes into account depends on the circumstances; matters such as delay, prejudice and the merits of the underlying claim may be relevant under case law, but are not fixed statutory prerequisites.
Does the deadline run from the date of death?
No. Under section 99 the six-month period runs from the date of the grant of probate or letters of administration, not from the date of death.
Can an executor distribute the estate inside the six-month window?
Distribution during the six-month window carries risk. The statutory protection for properly made post-six-month distributions is under section 99A of the Administration and Probate Act 1958 (Vic), not section 99. Executors should obtain advice on the timing of distributions and on any notice of intention or filed application received.
Is waiting six months enough on its own to protect an executor?
Not automatically. Section 99A(3) provides protection for a legal personal representative who makes a distribution after the six-month period where the representative has not had notice of an application, or, where a written notice of intention has been given in accordance with section 99A(4), no written notice of a filed application is received within three months after the notice of intention. The interaction between the notice-of-intention regime and section 99A is technical and warrants advice before distribution.
What happens if a claim is filed late without an extension?
An application made outside the six-month period requires an extension of time under section 99(2). Under section 99(3) the extension application must be made before the final distribution of the estate. An applicant who knows the six-month period has passed should obtain advice on whether an extension application is available in the circumstances.
Does sending a letter of demand or notice of intention stop the six-month clock?
No. A letter of demand or notice of intention is not the commencement of a proceeding under section 99; commencement requires filing in a court with jurisdiction. A written notice of intention that complies with section 99A(4) can, however, be relevant to executor protection under section 99A(3), for up to three months from the notice.
Which court hears family provision claims?
Under section 90 of the Administration and Probate Act 1958 (Vic), 'the Court' for the purposes of Part IV means the Supreme Court of Victoria or the County Court of Victoria. Legal advice should be obtained on the appropriate court in the particular estate.
What if I only discover the Will after the deadline has passed?
Late discovery of the Will or of the death may be relevant to an application to extend time under section 99(2). It does not create an automatic entitlement to an extension; the Court weighs the circumstances of the case.
Does the six-month period apply to all estate claims?
No. The six-month period applies to family provision applications under Part IV. Other estate-related claims — such as claims by creditors, claims to challenge the validity of a Will, or trust-based claims — have their own time rules. Prompt legal advice is important because time limits vary.
Contested Wills & TFM Claims
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This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.