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Time to Act Promptly – Extension of time denied where sons delayed challenging a will for 40 years – because of their dead mother’s promise


Time to Act Promptly – Extension of time denied where sons delayed challenging a will for 40 years – because of their dead mother’s promise

A recent case in the Supreme Court of Victoria has emphasised the need to act promptly in disputing a will, and for fulsome legal advice on structuring – whilst all parties are still alive.

The decision of Maher v Maher [2018] VSC 318, involved a farming family in Euroa with twelve children. Four of the sons worked on the farm.

The farming business had a structure that can be typical of farming families. Some of the farming land was owned solely by the father, some by the mother, the business was operated in a partnership between some of the sons and the father (with the participants fluctuating), some sons also owned some parcels of land and there were other ancillary structures.

The father died in 1975, leaving his widow a life interest in the farming land and giving livestock and plant and equipment to the brothers’ partnership and his widow. The will explicitly provided that, upon the widow’s death, the farming land was to be divided between the non-farming children.

The four farming brothers argued this was unfair. They spoke with their mother about challenging their father’s will. They had worked for no wages for the entirety of their lives, and believed that, as the children working on the farm, they should inherit the farming land.

The brothers gave evidence that their mother promised them that if they did not challenge their father’s estate, she would leave all of her farming property to them. So they did not challenge it, and instead continued to operate the farming business.

When their mother died in 2014, it was revealed she hadn’t kept her promise. She divided the farming property in her name between the farming children and the non-farming children. The brothers applied to challenge both their mother’s and father’s estates.

In Victoria, challenges to wills need to be lodged within 6 months of granting probate. The brothers sought an extension of time from the Court, which comes down to the Judge’s discretion.

Associate Justice Daly refused to grant the extension of time. Despite their extensive evidence about their delays, they were unable to challenge the estates.

Key take away points

We see many scenarios of second marriages, where a biological parent dies, giving the entirety of their estate to their new spouse. Their children do not seek to challenge that will until they discover, many years later, that their former step parent has disinherited them.

While it is unusual for a delay of 40 years to occur, Maher v Maher emphasises that if a will does not adequately provide for a dependent’s proper maintenance and support (i.e. the will doesn’t provide enough money to the dependant to live off in the circumstances), challenging it quickly is crucial. Waiting for the deceased’s partner to die is not an excuse for delay, and legal advice should be sought promptly.

The Estates team at MMRB is well versed in disputes of this nature and all of the complexities and nuances that may arise.

Please do not hesitate to contact Anthony Maher or Annette Templeton on 03 9604 9400 with any questions.

Disclaimer: This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.