McCann v Ward & Anor

McCann v Ward & Anor involved a dispute regarding an application for family provision under Part IV of the Administration and Probate Act 1958 (Vic). The applicant sought to have her claim for family provision extended beyond the statutory time limit. The respondents, the executors of the deceased's estate, opposed the application on the grounds of significant delay and lack of justification. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the applicant's delay in lodging her application for family provision could be excused under Section 99 of the Administration and Probate Act 1958 (Vic). The court needed to consider the relevant factors outlined in the statute, including the length of the delay, the reason for the delay, and whether any prejudice would result to other interested parties if the time was extended. Additionally, the court had to assess whether the applicant had a reasonable excuse for the delay and whether it was just and equitable to grant the extension.

In delivering the judgment, the court held that the applicant's delay of 14 months was significant, but not insurmountable. The court found that the applicant had provided a reasonable explanation for the delay, which involved a complex family dispute and a genuine misunderstanding about her entitlement to make a claim. The court also noted that the delay had not caused any prejudice to the respondents, as they were already aware of the potential claim. Based on these considerations, the court exercised its discretion under Section 99 and granted the application for an extension of time.

The court's final orders included an extension of time for the applicant to lodge her family provision application and directed the parties to proceed with the substantive hearing of the claim. The court emphasised the importance of timely applications for family provision while also recognising the need for flexibility in exceptional circumstances.