Late Family Provision claims may well have a lifeline!

Published 22 Mar 2016

Author: Garbis Kolokossian

Grover v NSW Trustee & Guardian [2015] NSWSC 1048 (4 August 2015)

Facts

This was a claim for a family provision order under the Succession Act 2006  (NSW) (“the Act”) out of the estate of Robert John Real (“the deceased”). The claim was made some 6 days later than the time prescribed by the Act. In family provision cases, an eligible person may within one year from the date of the deceased’s death apply for a family provision order from the Court. The plaintiff in the proceedings being the grandson of the deceased sought to seek for a family provision order outside of the one year limitation period.

Extension of Time

The plaintiff’s solicitor had obtained instructions from the plaintiff on 10 October 2012 and at the time, his instructions were that the deceased died on 16 July 2012. In fact, the date of death was on 9 July 2012. The plaintiff had only become aware of the error, when it was pointed out by counsel reviewing the material in preparation of the hearing.

Accordingly, the Court had to determine whether the time for the making of the Plaintiff’s application was to be extended.

The court considered section 58(2) of the Act, which provides that an application for a family provision order must be made no later than 12 months after the date of the death of the deceased person, unless the court otherwise orders on sufficient cause being shown.

Through interpreting the words “otherwise order” the Court was of the view that the legislation permitted the Court to avoid the section in becoming an instrument of injustice through the strict application of the Act. Importantly, sufficient cause had to be demonstrated in extending the time for a family provision claim.

The Court revised numerous past authorities on the meaning of “sufficient cause” and it followed that there must be some positive reason for concluding that it would be just to extend the period for making a family provision claim. In addressing this question, the Court considered and focused on a number of factors, namely:

(a)The excuse for not filing the claim in time.
(b)The knowledge of the plaintiffs of their rights.
(c)The strength of the plaintiffs’ case.
(d)Negligence of the solicitor involved.
(e)Prejudice to the defendant.
(f)Any unconscionable conduct.”

The Court evaluated the circumstances surrounding the delay in making the family provision claim and established that there was no evidence of any conduct, on the part of the plaintiff, which could be regarded as “unconscionable”. The error appeared to have been the mistaken instructions given as to the date of the deceased’s death.

It was further decided that in the event prompt action is taken to rectify the mistake or oversight, the court would tend to extend time to bring proceedings, particularly if the applicant’s case was a strong one. This case is a welcoming authority for any persons who may have not applied for a family provision order under the prescribed statutory time period.

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