FURTHER PROVISIONS - THE COMMON REASON WHY APPLICATIONS MADE IN 2012 WERE DISMISSED

Published 24 Jun 2013

Author: Garbis Kolokossian

As litigators and as lawyers who provide advice to deserving clients  who deserve the best, GMP Contesting Wills Lawyers continues to stay one step ahead of our opponents by continuously reviewing cases that have taken place throughout the year and assessing the common reasons and grounds why cases are lost and the common reasons and grounds why cases are won. This is important for a number of vital reasons:

  1. It allows the practitioner to generate an understanding of how and what will constitute a good case;
  1. It allows the practitioner to provide frank and current advice to deserving clients in order to minimise costs and increase gain;
  1. It allows the practitioner to be able to appropriately articulate ranges of verdicts that could be anticipated.

In order to understand how cases are successful I draw your attention to the articles published by myself and my colleague David Cossalter on our website.

You will notice by reading through the information on our website that thorough and concrete information is being provided with respect to issues of eligibility, time limit, moral obligation and other more legally complicated notions such as notional estate. After understanding and having a grasp of the circumstances in which and eligible person is likely to receive a benefit from an estate it is then imperative to consider why applicants fail when they progress matters to the Supreme Court of NSW.

In 2012 that is between 1 January 2012 to 31 December 2012 a total of 17 applications were dismissed. In order to assist our readers I have decided to break down each of these cases by identifying the name of the case, the relationship the applicant had to the deceased and a short synopsis of the reason for the dismissal.

From those applicants who failed out of the 17 dismissed cases;

  • five (5) of them were the biological son of the deceased,
  • eight (8) of them were the biological daughter of the deceased,
  • one was a grandchild and
  • one was a former wife.

The most common reason for the dismissal of cases was inadequate financial disclosure, (I draw your attention to the case of Ogburn V Ogburn [2012] NSWSC 79, Nashaty V NSW Trustee and Guardian [2012] NSWSC 1063) that is failure  to appropriately and adequately disclose to the Court and to the Defendant/s the financial circumstances of the applicant. One of the major considerations the Court needs to review is the needs of an individual. If it is evident to the Court that an individual has adequate financial resources and the estate assets are not substantial and that applicant has already received a benefit, it is more likely than not that the Court (subject to the facts of each individual case) will find against the applicant.

Other circumstances where cases have been lost are in circumstances where the provision previously provided to the applicant under the Will was not inadequate (I refer you to the cases of Hatton V Hatton [2012] NSWSC 182, Bowditch V MSW Trustee and Guardian [2012] NSWSC 275, Allen V Allen [2012] NSWSC 140, Varis V Varis [2012] NSWSC 1553). It is not uncommon when providing advice to clients to learn that our client has already received a benefit under the estate. Both legal practitioners and clients all need to understand that the system of applying for further provision under the estate is not a guarantee that the Court will rewrite the deceased’s Will. As a matter of rule the Last Will and Testament of the deceased is the last document prepared by that individual demonstrating his or her testamentary intentions. The Court will only make orders in favour of the applicant when the Judge is of the view that the provision that was made for the applicant or the lack of provision made for that applicant is “insufficient”.

Another common reason why people seek further provision out of an estate is to provide for a person that is not eligible to make a claim. Hypothetically in circumstances where a biological child of the deceased is seeking further provision out of the estate in order to provide a gift or benefit to the grandchildren of the deceased who are not eligible to make a claim will most likely be unsuccessful if the judge is sufficiently satisfied that the provision made out of the estate for the applicant is sufficient in the first instant.

I refer you to the case of Dugac V Dugac [2012] NSWSC 192.  In this case the Judge concluded that the application made by 61 year old daughter will be unsuccessful because it was this person’s evidence that the reason for her claim and her intention was to use any provision received out of the estate to make a gift to her children. In its simplest form making a claim to provide for further provision for other persons will be a clear ground for failure.

The process of making a claim for further provision or more commonly known as contesting a Will is an avenue of address which has been developed by the legislation to provide for those persons who require assistance for their maintenance, education or advancement in life. If an eligible person has no need for maintenance, education or advancement in life and is making a claim for the pure reason of attempting to assist other persons who are not eligible to seek further provision it will be clear that, subject to the facts, that that claim will fail.

Another reason for dismissing cases in the year 2012 was that claims were made out of time. It is has been previously explained throughout our website and articles prepared by myself and my colleague David Cossalter that depending of the State the deceased resided in at the time of passing and depending on where the deceased’s main place of residence was considered to be at the time of passing, different limitation periods apply. In NSW an applicant has 12 moths from the date of death to commence formal proceedings by way of a Summons in the Supreme Court of NSW. Failure to commence formal proceedings in NSW within the 12 month period does not immediately mean that that person does not have of is not eligible to continue to make a claim. When discussing and considering the issue of a late claim the Court takes into consideration a number or viable factors, this includes but is not limited to:

  1. The size of the estate;
  2. Have the assets of the estate been distributed;
  3. The delay in making a claim;
  4. The reason for the delay in making a claim;
  5. The prospects of success of the applicant in seeking further provision out of the estate.
  6. The knowledge of the applicant of the limitation periods
  7. Whether the applicant was provided with any formal legal advice.

Not withstanding the matters set out above the Court in 2012 on three (3) separate occasions dismissed the application made by an applicant on the basis that it was out of time and the Court was not sufficiently satisfied that the application for the extension of time under Section 58(2) of the Succession Act 2006 should be granted.

Practitioners will always adequately consider multiple factors when advising on circumstances where a claim is made out of time. As a general rule at GMP Contesting Wills Lawyers we do not turn away clients for the simple fact that the claim is our of time. When advising a client on his or her entitlements we consider the factors relating to the delay and consider what the prospects of success will be if the matter was to be heard before a judge of the Supreme Court of NSW.

These are some of the main causes of the reasons why applications made for further provision in NSW have been dismissed in 2012. If you are concerned about your Family Provisions Claim and you require advice you should contact myself at GMP Contesting Wills Lawyers where you will have the opportunity to speak to a practitioner who deals in this area on a daily basis and can provided you with legal advice.

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