Time constraints lead to failed provision claim

Published 14 Apr 2016

Timing is everything, as the common saying goes and this is especially true for those looking to contest a will. Under New South Wales law, a family provision claim is governed by strict time limits that can only be overturned through a court order.

A recent case that was brought before the Supreme Court of New South Wales illuminates the importance of making a family provision case within the time constraints set out by the relevant legislation. If you are looking to make a claim, it is essential to seek advice from experienced contesting wills lawyers as soon as possible.

Time limits and failure to sway the courts

The deceased passed away in 2006 and left her entire estate to her husband, who is also the defendant. The estate included a number of assets such as the family home and a joint bank account.

Nearly six years later, the plaintiff, the deceased’s daughter of another relationship, made a family provision claim against the estate. The plaintiff is an eligible person, so as the daughter of the deceased her provision would be taken from the notional estate if she won.

One of the main questions the Court considered was whether the plaintiff had outlined a satisfactory reason for not making an application within the allocated time frame. The plaintiff was able to present sufficient cause for her failure to commence proceedings until 2009. However, her failure to begin proceedings at the end of the 2009, after she received legal advice, indicated that her decision making was driven by her desire to secure a loan from the defendant.

Section 58(2) of the Succession Act 2006 states that an individual has 12 months after the date of the deceased’s death to make a family provision claim. While the courts can make orders that override this condition, as the case above highlights, there needs to be sufficient evidence to do so.

For those looking to make a claim, it is essential to contact a lawyer with experience contesting wills – sooner rather than later. By talking to specialists early, you can get the right advice in relation to making a family provision claim.

At Gerard Malouf and Partners, we offer a no win, no fee guarantee that ensures you face no upfront costs when making a family provision claim. Instead, we only take payment if your claim is successful and leads to a settlement.

If you would like to learn more about the specifics of the Succession Act, talk to the experts at Gerard Malouf and Partners today.

Free Call 1800 004 878 Make An EmailEnquiry

COVID-19 Notice

We are committed to looking after the health and safety interests of our clients and staff, find out how in our
COVID-19 Notice
 
  • Nsw Offices

    • North Parramatta
    • Sydney
    • Penrith
    • Ryde
    • Blacktown
    • Liverpool
    • Chatswood
    • Campbelltown
    • Erina
    • Newcastle
    • Wollongong
    • Ballina
    • Tamworth
    • Wagga Wagga
    • Rockdale
    • Baulkham Hills
    • Bondi Junction
    • Mudgee
    • Tweed Heads
  • Vic Offices

    • Melbourne
  • Qld Offices

    • Brisbane
    • Bundall
  • ACT OFFICES

    • Canberra City