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“…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  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:
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:
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.
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