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[2017] VCC 1501
defendant. The plaintiff's application to extend the time within which to file a family provision claim under s99 was refused, and the proceeding was dismissed (para 38).
The son sought leave to bring a family provision claim more than six years after probate of his mother's will. The Court refused to extend the statutory six-month period. Key reasons: long unexplained delay, inadequate evidence to justify delay (claims of emotional incapacity were not sufficiently particularised), and weak prospects because the will already gave him a life interest and trust funds, and alternative relief from the trustee was available. The application was dismissed.
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1,794 words · generated 10/07/2026
Ahmed Daicos (the plaintiff) applied to the County Court of Victoria for an extension of time under s99 of the Administration and Probate Act 1958 to bring a family provision claim out of time in respect of the estate of his mother, Alexandra Daicos. Probate of Alexandra's Will was granted on 4 October 2010. The plaintiff filed an Originating Motion seeking extension on 9 January 2017, approximately six years after probate and well beyond the six-month statutory limitation period (paras 1, 10, 36).
1 cited instrument linked from this judgment.
The defendant was Phillip Daicos, Alexandra's executor and one of the plaintiff's siblings. The defendant sought orders dismissing the application (para 2). Evidence before the Court comprised affidavits from the plaintiff and the executor, material from solicitors, and a table of the estate's assets and liabilities (para 4). The estate had a net value of $5,093,280.60; the plaintiff's specific testamentary entitlements, including a life interest in 66 Freeman Street and entitlements to funds held in 'George Daicos Fund 2', amounted to $2,242,659.15 with an unallocated cash fund of $1,172,243.16 (paras 11-12).
The plaintiff explained his delay by reference to the intense psychological and emotional impact of losing both parents in quick succession and related personal difficulties (paras 15, 79-82). He sought, in substance, payment of the trust monies to him absolutely so he could purchase a freehold dwelling and meet his health and living expenses (para 16). The only live substantive issue the plaintiff intended to pursue was that relief described in paragraph 84 of his affidavit (para 17).
His Honour Judge Misso refused the extension and dismissed the proceeding on the grounds that the delay was significant and unexplained, the plaintiff had been aware of his rights and time limits, and, importantly, his prospects of success on the substantive claim were hopeless because the will already afforded him a life interest and access to trust funds and alternative relief from the trustee had not been exhausted (paras 35-38; 29-34). The orders effectively sought in the defendant's Summons were made (para 38).
The decision turns on two connected axes: delay/explanation for delay, and the merits (prospects) of the substantive family provision claim.
Statutory framework and discretionary standard (s99): Section 99(1) imposes a strict six-month limit for family provision applications. Section 99(2) gives the court discretion to extend the period but the discretion must be exercised judicially (para 13). The authorities cited by the Judge underscore that the statutory period is substantive and the applicant carries the burden of demonstrating circumstances that make it unjust to penalise them for delay; promptness and a good reason for delay are important considerations (para 14).
Delay and explanation: The plaintiff's delay, approximately six years, was substantial (para 36). His explanation rested on psychological, emotional and domestic difficulties following bereavement (paras 15, 79-82). However the Judge found that explanation to be "thin at best" (para 22). The Judge noted the absence of clinical or more particularised evidence demonstrating incapacity that would have prevented timely action (para 20). The fact that the plaintiff only recently sought legal advice and filed the application suggested his difficulties had materially eased (para 21). On the facts, the Court was not satisfied the plaintiff had given an acceptable explanation for the prolonged delay (paras 20-22, 36).
Merits and hopelessness: Even if the Court were to consider the delay less weighty, the merits of the plaintiff's claim were independently weak. The will provided the plaintiff with a life interest in Freeman Street and a trust fund. The Judge observed that the plaintiff could obtain vacant possession of Freeman Street (his former wife was occupying it without an enforceable proprietary interest) and, if successful, obtain the secure accommodation he sought and access to trust monies for living expenses (paras 30-32). Alternatively, he could apply to the trustee for funds to purchase alternative accommodation, an unexplored avenue (para 33). The plaintiff had not demonstrated specific unmet expenses or explained why the estate would not meet reasonable claims; the trustee had a duty to act reasonably (para 34). The Judge concluded the plaintiff lacked an arguable case; prospects were "hopeless" (paras 28-29, 34).
Discretion exercised against extension: The principal question under s99 is whether it would be unjust to penalise the applicant. Balancing the significant unexplained delay against the weak merits and the availability of alternative remedies, the Judge concluded it would not be unjust to dismiss the proceeding (paras 35-37). That finding was dispositive and led to refusal of the extension and dismissal (para 38).
Before this decision, the legal principles governing extension of time under s99 were well-established: the power is discretionary, the six-month limit substantive, the applicant has the onus to justify delay, promptness and merits are relevant, and hopeless claims should not be revived by indulgence (authorities collected at para 14 and footnotes [1]-[9]). The Judge's reasoning adheres closely to those pre-existing principles rather than altering or announcing novel law.
After this decision, the practical import for practitioners is reinforced rather than novel: a prolonged unexplained delay (here six years) in family provision litigation is likely to be fatal where the applicant cannot substantially demonstrate incapacity or exceptional circumstances preventing timely action, and where the substantive claim lacks reasonable prospects because the testator's will already provides meaningful and practicable relief. The decision serves as a contemporary application of established tests in the Victorian County Court.
Section 99 recited (para 13):
Plaintiff's affidavit explaining delay (para 15):
Judge's assessment of that explanation (para 22):
Finding on available remedies and merits (paras 30-34):
Conclusion on unjustness (paras 35-38):
This decision will be most directly relevant where:
Practitioners should note that these facts combined produced refusal; different facts (shorter delay, stronger explanation, a realistic chance of success) could yield a different result.
This decision itself summarises and applies established authorities (Bennett v Pettitt, Re Guskett, Re Nassim, Ansett v Moss, Groser, Re Walker, Coates, Blore, Prosser) and does not purport to depart from them (see para 14 and footnotes). It is therefore best read as an application of existing Victorian authority on s99 rather than a landmark change. Later courts will likely cite Daicos v Daicos as an example at County Court level of refusing extension where delay is long, the explanation is thin, and the merits are weak. For persuasive effect, appellate courts will weigh the particular facts; no appellate reversal is indicated in this judgment record.
Conclusion
Daicos v Daicos is a clear, practical application of the established principles governing extension of time under s99. Its central lessons for practitioners are: (1) act promptly; (2) particularise and, where appropriate, support with contemporaneous evidence any explanation of incapacity or other good reason for delay; (3) demonstrate a realistic prospect of success by addressing statutory criteria and why the testamentary provision is inadequate; and (4) exhaust or at least attempt practical, non-litigious avenues (such as trustee applications) before seeking to revive a stale claim. The County Court refused the extension because the delay was long, the explanation inadequate, and the substantive case weak, a tripartite assessment that will recur in similar cases (paras 14, 20-22, 29-38).
Judgment: The plaintiff's application to have the time extended within which to file the application is refused, and as a result, the proceeding is dismissed.
1 By an Originating Motion filed 9 January 2017, the plaintiff seeks an extension of time to file a claim pursuant to s99 of the Administration and Probate Act 1958 ("the Act") and, should he be successful, then a declaration that the provision made for him out of the estate of his late mother is inadequate.
2 By a Summons dated 16 June 2017, the defendant effectively seeks orders that the plaintiff's application be refused, and otherwise that the proceeding be dismissed.
3 Ms C Sparke QC appeared for the applicant/defendant on the hearing of the Summons, and Mr G Baker appeared for the respondent/plaintiff.
4 The evidence adduced on the application is as follows:
• the affidavit of the plaintiff sworn 25 May 2017 together with 34 exhibits: Exhibit A
• the first affidavit of Phillip Daicos (the executor/trustee) sworn 25 May 2017: Exhibit 1
• the second affidavit of Phillip Daicos sworn 25 May 2017: Exhibit 2
• the first affidavit of David Edward Whiting sworn 19 June 2017: Exhibit 3
• the second affidavit of David Edward Whiting (reduced to paragraph 6 and Exhibit 7) sworn 2 October 2017: Exhibit 4
• a table setting out the assets, liabilities and expenses of the subject estate: Exhibit 5
5 Peter and Alexandra Daicos, both deceased, are the parents of the plaintiff. The plaintiff has three siblings.
6 Peter died on 17 June 2009. He left a Will dated 19 February 2008. Probate of his Will was granted to Alexandra. According to the inventory of assets and liabilities, the gross value of Peter's estate was $1,597,596.00.
7 Under Peter's Will, provision was made for the plaintiff, which is set out in paragraph 6 of his affidavit. It is unnecessary to set out what that provision was, for reasons which will become plain shortly.
8 The plaintiff filed an application in the Supreme Court on 19 February 2010. It was not long after he did so that Alexandra died on 31 July 2010. The plaintiff was then advised by his solicitors to consider whether he should file an application against her estate.
9 The plaintiff lost interest in prosecuting the application for reasons set out in paragraphs 15-28 of his affidavit. Again, for reasons which will become plain shortly, it is unnecessary to set out why that loss of interest occurred. What it led to, however, was an appearance by the plaintiff in person on 25 October 2011 at which time he informed the Supreme Court that he did not intend to prosecute the application, with the result that it was dismissed.
10 Probate of Alexandra's Will was granted to Phillip Daicos, a sibling of the plaintiff, on 4 October 2010.
11 Under Alexandra's Will, provision was made for the plaintiff as set out in paragraph 13 of his affidavit. In summary, that provision was:
• a life interest in the property located at 66 Freeman Street, North Fitzroy ("Freeman Street").
• payment from a trust established for the plaintiff's benefit known as the "George Daicos Fund 2".
• twenty-five percent of the net proceeds of the sale of a property to be paid into the "George Daicos Fund 2".
• one hundred percent of the net proceeds of sale of another property to be paid into the "George Daicos Fund 2".
12 Alexandra died, leaving a net estate of $5,093,280.60. The table setting out the assets, liabilities and expenses of Alexandra's estate relevant to the plaintiff demonstrates that the specific asset distribution to the plaintiff amounts to $2,242,659.15. After taking into account the value of Freeman Street, there is an unallocated cash fund of $1,172,243.16.
13 Section 99 of the Act provides:
"(1) An application to the Court for a family provision order must be made within 6 months after the date of the grant of probate of the will or of letters of administration, as the case may be.
(2) Despite subsection (1), on application, the Court may extend the period for making an application for a family provision order if, after hearing such of the parties affected as the Court thinks necessary, the Court considers it appropriate to extend the period, including in any case where the time for making an application has already expired."
14 There are a number of considerations which are relevant to the plaintiff's application for an extension of time which I will summarise briefly:
• the power to extend time is discretionary and is a power which must be exercised judicially.[1]
• the provision in the Act providing for a time limit of six months is there for a good reason. It is a substantive provision, not merely procedural and the burden on the applicant is no triviality.[2]
• the onus is on the applicant to demonstrate circumstances which make it unjust for him to be penalised for being out of time.[3]
• the application must be made promptly.[4]
• the strength of the applicant's case is a relevant consideration.[7]
• a claim which has no chance of success or is hopeless or where it is improbable that it will succeed should be dismissed.[8]
15 The plaintiff's explanation for his failure to file the application within the relevant period, or to make an application for leave at an earlier time, is taken up by him in paragraphs 79-82 of his affidavit:
"79. Within a two year period I lost both my mother and father. I had a close relationship with both of my parents. The fact that both my parents passed away in such quick succession was an immensely grievous burden for me. I was not informed of my mother's death nor her funeral. This had a significant psychological and emotional impact upon me.
16 The reference by the plaintiff to the Court ordering further provision needs to be seen in the context of what he said in paragraph 84 of his affidavit:
" Further, I do not seek a larger share of my mother's estate at the expense of my siblings; I merely seek that payment of all that part of the estate that was to be held in trust for me, be paid to me absolutely, so that I can purchase freehold of a property to provide me with secure and permanent accommodation and that I can use the balance for my health and living expenses and reduce my reliance upon Centrelink benefits."
17 During submissions made by both counsel, I was informed that the sole issue which the plaintiff will pursue at trial is defined by what he said in paragraph 84.
18 The plaintiff's evidence that the death of his parents had a significant psychological and emotional impact upon him and rendered him vulnerable was not directly challenged. Nor was his evidence that his mental state deprived him of the capacity to carefully consider the legal advice that he received at that time. Nor was his evidence that he was having other issues in his life, among other things, the breakdown of his marriage and the unfortunate circumstances he found himself in, which are set out in paragraphs 30-39 and 81 of his affidavit, which caused him to suffer stress and anxiety.
19 The attack that was made upon the plaintiff's explanation for the delay in bringing this proceeding was based upon the fact that:
• he engaged solicitors to act for him to obtain advice on whether he had any prospects of succeeding in a claim against Peter's estate.
• he obviously accepted the advice he was given because he filed an application against Peter's estate.
• inferentially, he must have understood the advice he was given that if he was dissatisfied with the provision made for him out of Peter's estate, that there was a basis to challenge the adequacy of the provision made for him, and therefore, he must have understood that the same advice would apply to any dissatisfaction he had with the provision made for him out of Alexandra's estate.
20 I think it is very unsatisfactory for the plaintiff to just blandly describe the impact on him of his parents' death and of his domestic circumstances without describing the same in more detail and without additional evidence. There is no evidence which permits me to determine whether his reference to his psychological, emotional, stressful and anxious state are clinical disorders. Whether they are clinical disorders or not, he did not adduce any evidence to demonstrate that whatever the level of those difficulties has been, that they interfered with his capacity to think logically and to clearly reason whether he should seek legal advice and file this application.
21 What is now clear is that whatever burden the plaintiff's psychological, emotional, stressful and anxious state caused him, must have lifted to a material degree in recent days because he sought legal advice, and, subsequently, filed this application.
22 The evidence relied upon by the plaintiff to explain the delay is thin at best. I am not satisfied that the explanation he has given is an explanation I should accept.
23 The plaintiff's unsatisfactory explanation for the delay in filing this proceeding is not the end of the matter. That is apparent from some of the authorities which I have briefly summarised above.
24 In paragraphs 29 and 41-78 of the plaintiff's affidavit, he set out his domestic, work and financial circumstances in some detail. It is sufficient to say that since he separated from his wife and left Freeman Street in 2010, he has lived in his car, at the home of friends, in hotels and in rental accommodation. He has pursued some work. He has required some medical and dental treatment.
25 What resonates from those paragraphs is the plaintiff's dissatisfaction with the conduct of Phillip in his role as executor/trustee and the estate's solicitors. It is those complaints which constitute the basis upon which he said, in paragraph 84, that he wants to exercise dominion over the monies held in trust for him, rather than being beholden to Phillip and the estate's solicitors.
26 I have read each of the exhibits to the plaintiff's affidavit which are relevant to the complaints he makes about Phillip and the estate's solicitors and the allegations he makes about their conduct relevant to claims he has made for the payment of claimed expenses. The relevant exhibits comprise correspondence largely directed to questions of Phillip's application for executor/trustee commission, the quantum of the monies held in trust for the plaintiff, and issues relating to the exercise of the discretion by Phillip in his role as executor/trustee in dealing with applications by the plaintiff for the payment of claimed expenses.
27 In considering the merits of the plaintiff's claim, I must have regard to the criteria set out in s91(4)(e)-(f) of the Act. In short, whether Alexandra failed to make adequate provision for the proper maintenance and support of the plaintiff which must be determined by a consideration of the facts known to the deceased at the time of her death. Alexandra is deemed to be aware of the relevant circumstances of the plaintiff at the time of her death, but she will only be deemed to be aware of subsequent events to the extent that they were reasonably foreseeable at the time of her death.[9]
28 In dealing with the summons, I am not required to determine the plaintiff's claim for further provision. What I am to determine is whether the plaintiff has adduced evidence to demonstrate that he has an arguable case. Evidence that there is an arguable case is a relevant consideration, but is insufficient of itself to be reason enough to grant an extension of time.
29 I am not satisfied that the plaintiff has an arguable case. For reasons which I will now set out, I consider that his prospects are hopeless.
30 Firstly, the plaintiff has an entitlement to a life interest in Freeman Street. As I understand it, his former wife has no proprietary interest or equitable interest in that property, and indeed, no enforceable right to remain in possession of that property. Neither counsel made any submissions to the contrary.
31 The plaintiff has only recently engaged solicitors to take the necessary steps to have his former wife vacate Freeman Street. By letter dated 24 August 2017, she has been informed that she should vacate Freeman Street forthwith, and that the plaintiff will "press" Phillip to assist her with the costs associated with her relocating to an alternative residence.
32 Should the demand for vacant possession be successful, then the plaintiff will have what he now wants, and that is, secure and permanent accommodation. Additionally, he will have the benefit of the monies held in trust to meet his reasonable living expenses.
33 Secondly, and as an alternative to obtaining vacant possession of Freeman Street, the plaintiff can apply to Phillip for the purchase of an alternative residence. There is no evidence that he has made such an application, and no evidence that it will not be entertained and met.
34 Thirdly, the plaintiff has not explained what the expenses are associated with maintaining his health and meeting living expenses, and why they will not be met by the estate. It must be remembered that just because the plaintiff makes a claim for expenses, that the claim should be met. Phillip has a duty at law to act reasonably on behalf of the estate in assessing each claim on its merits.
35 The primary factor in determining an application of this kind is whether it is unjust for the plaintiff to be penalised for being out of time by dismissing his application.
36 In this case, the delay is significant. From the time of the effluxion of the six-month period after Alexandra's death to the time when the plaintiff filed the Originating Motion is approximately six years. It can hardly be said that the application was filed promptly. The plaintiff was aware of his entitlement to make a claim for the reasons which I have set out above. He would have been aware of the time in which such a claim needed to be made.
37 Even taking the most beneficial view of the plaintiff's evidence, I do not consider that it would be unjust to dismiss the plaintiff's proceeding.
38 Therefore, I will make the orders effectively sought in the Summons refusing the plaintiff's application to have the time extended within which to file the application, and as a result, the proceeding on foot must be dismissed.
[1] Bennett v Pettitt [2012] VSC 234 at paragraph [22] ("Bennett"), and Lexis Nexis Butterworths, Wills Probate and Administration Service (Vic), Vol 1 (at Service 46) [39,050] and the cases cited therein ("Lexis Nexis")
[2] Bennett at paragraph [22] and Lexis-Nexis at [39,050]
[3] Re Guskett [1947] VicLawRp 28; [1947] VLR 212 at 214; Re Barrot (decd) [1953] VicLawRp 45; [1953] VLR 308 at 312; Re Nassim (decd) [1984] VicRp 5; [1984] VR 51 at 55, and Bennett at paragraph [25]
[6] Ansett v Moss [2007] VSCA 161 at paragraph [6]
[7] Valbe v Irlicht [2001] VSC 53 at paragraph [31], Groser v Equity Trustees Ltd [2007] VSC 27; (2007) 16 VR 101 at paragraphs [36]-[37] ("Groser") and the authorities referred to in paragraph [37]
[8] Re Walker (decd) [1967] VicRp 116; [1967] VR 890 at 892 and Groser at paragraphs [32]-[33]
[9] Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494; Blore v Lang [1960] HCA 73; (1960) 104 CLR 124, and Prosser v Twiss [1970] VicRp 29; [1970] VR 225
Daicos
Daicos
(2007) 16 VR 101
(1956) 95 CLR 494
(1960) 104 CLR 124
The plaintiff's application to extend the time within which to file a family provision claim under s99 was refused, and the proceeding was dismissed (para 38).