Vogdanas v Kriaris [2012] VSC 248

In June 2012, the Victorian Supreme Court was asked to consider an inheritance claim by the son of the deceased which had been brought after the time limitations set out in the Administration and Probate Act 1958 (Vic). The son was an adult, who had many and significant medical conditions, his only assets were his clothes. The executors and beneficiaries of the estate of the deceased were the deceased’s daughters. They had not given their brother a copy of the deceased’s will after his death and the son was not aware that probate had been granted or even what a grant of probate meant. The son was aware that the home in which he had been living with his father had been sold because his sisters had required him to not be in attendance during times the home was marketed for sale.

After becoming aware of his right to seek provision from his father’s estate, the son’s solicitors promptly made an application to the Victorian Supreme Court although it was made 25 days after the time limitation period set out in the Act had expired.

The son’s application for an extension of time to bring his claim was granted, not only because he could establish an arguable case, but importantly, he was ignorant as to his rights under the Act.

Comment – Ignorance of rights under the Act and similar legislation in other jurisdictions should not be taken for granted as a basis for obtaining an extension of time. However, in this case not only did the son establish his ignorance, but he was also able to demonstrate that he acted promptly once becoming aware of those rights and that there was no prejudice to his sisters by the delay. Inheritance provision legislation in all Australian jurisdictions provides a specific procedure and time frame in which claims must be notified and acted upon. Failure to comply could lead to prejudice to the executors and other beneficiaries of a will and may preclude an application for provision being heard at all.