Time is of the essence with Family Provision Claims

Published 25 Jun 2013

If you believe that you have not received your fair share in the Will of a loved one after they pass away, you may be able to make a Family Provision Claim on their Estate.

The following case, recently before the NSW Supreme Court, illustrates the importance of making any such application with minimum delay.

Background

The Will of a father who passed away in July 2010 dictated that his estate be divided among his nine children.

However, the Will stipulated that one of the children would be entitled to stay in the deceased’s house as long as they required or whilst they remained single or were not in a de facto relationship.

Furthermore, two additional of the deceased’s children were allowed to stay with the daughter, who is unemployed and has a disabled son.

One of the other daughters was not happy with this provision, and resolved to contest the Will.

She made an application to Legal Aid New South Wales in September 2010. In response, she was asked to provide certain information so that the merit of her circumstances in relation to the provision of legal aid could be judged.

She did not provide this information, and in January 2011 she received a letter instructing that her application had been refused.

In January 2012, her brother informed her that he had talked to someone from a law firm about making a Family Provision Claim. This firm had requested more information and encouraged that a claim be filed without further delay, as the 12 month timeframe for applications had already expired.

Two of the daughters then filed Summons in November 2012 – nine months later – even though one of them swore their first affidavit in September 2012.

One of the plaintiffs claimed that they were not aware of their rights regarding the timeframe for making an application for family provision.

Decision

The judge was not satisfied with the Plaintiffs’ contention that they were not aware of their rights in respect to the 12 month timeframe for applications.

Furthermore, they found that there was no explanation for the delay in filing the Summons after the Plaintiffs were advised to act without delay, and as such insufficient justification to extend the time relating to the application.

Key Points

– Applications for Family Provision Claims need to be made within 12 months of the date of the death of the deceased.

– It is important to seek advice at an early stage if you are unhappy with the distribution of a loved one’s Estate.

– Contesting Wills lawyers can give you expert advice on all kinds of Inheritance Disputes and Family Provision Claims.

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