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Late to the party: Out-of-time family provision claims


“…a deserving daughter living in a Buddhist monastery and out of touch with the world possibly may have a powerful case for an extension of time…”

Justice Pembroke in Madden-Smith v Madden [2012] NSWSC 146

s58(2) of the Succession Act 2006 (NSW) states that a family provision application must be made within 12 months of the deceased’s death, unless the Court orders that sufficient cause is shown to allow an out-of-time application.

Whilst living in a Himalayan cave seems like it might be an acceptable excuse for out-of-time applications, what other reasons might a court accept as showing ‘sufficient cause’ for an out-of-time application for family provisions?

It must be noted that an application to extend the time for a claim is not taken lightly. In the above quoted case of Madden-Smith v Madden the claimant acted on her solicitor’s advice that she had 18 months to make the claim, whereas in fact she only had 12. This explanation, by itself, was not ‘sufficient case’ and the claimant’s application failed.

The most important consideration in applications to extend time is:

What are the reasons for the delay?

All of the circumstances of the case are taken into account, including:

  • What prejudice would the beneficiaries suffer?
  • Is the time delay great or not?
  • Was there any unconscionable conduct by either side?
  • Does the applicant otherwise have a strong family provision case?

Although the court is very hesitant to extend the strict limit of time imposed by legislation, there are many examples of cases where they have done so, which include: where the claimant:

  • Was a minor;
  • Had an intellectual disability;
  • Acted in an altruistic manner which occasioned their delay;
  • Was unaware of their entitlement to make a family provisions application;
  • Instructed a solicitor to commence proceedings, who did not follow these instructions.

The above are only a few examples of situations where the time limit was extended. It must be noted that they were not successful merely because, for example, the claimant had an intellectual disability, but because as a whole their case and actions were seen to present the necessary ‘factors warranting’ to extend the 12 month time limit.

Image Credit – Bacho12345 © 123RF.com

Written by Alun Hill on December 18, 2016

Alun Hill is the Division Head of the Contested Estates division of Armstrong Legal. He has worked on a wide range of estate litigation matters including family provision, probate and administration, will validity claims, estate administration disputes, equitable estoppel, superannuation claims and will construction. He has appeared in estate litigation matters in the Supreme Court of New South Wales, the New South Wales Court of Appeal, the Supreme Court of Victoria and the Queensland District Court. In 2018 Alun was named by Doyles as one of the Leading Wills & Estates Litigation Lawyers in NSW. View Alun’s profile


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