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Time passed influences outcome of family provision claim

A daughter’s family provision claim has demonstrated the importance of applying for proceedings within a timely manner. Additionally, the case sheds light into the influence of relationships on the Supreme Court’s decisions.

The contesting wills case was filed in October 2013, more than three years after the death of the plaintiff’s mother. Unfortunately, the Succession Act requires orders to be made no later than 12 months after the date the individual has passed away.

However, there are some circumstances when a late family provision claim may be considered by the Supreme Court of NSW. In particular, if the plaintiff can prove there was good reason behind the delayed application, their case will generally proceed as normal.

In this case, the daughter – who was not named as a beneficiary in her mother’s will – claimed that she started proceedings as soon as her mother’s death was made aware to her.

The fact that the daughter was not aware of her mother’s passing until November 2011, more than a year after her death, was due to a significant falling out between the two approximately 20 years prior. The strained relationship was caused by a number of personal reasons and resulted in the mother filing a lawsuit against her daughter in order to remove her from the family home.

In addition to the historic proceedings, the mother specifically mentioned her daughter in her will – indicating a purposeful reasoning behind not awarding her any of the estate.

After uncovering the fact of her mother’s death, the daughter claims to have started family provision claim proceedings immediately. However, legal records show that while a letter by the daughter’s lawyers was received on November 28, 2011, proceedings were not officially started until October 2013.

Considering these two factors, the Supreme Court of NSW decided that the daughter’s family provision claim would not be successful. The case was dismissed and no allowances were made for the legal costs of either the plaintiff or the defendants.

This case demonstrates how important it is to know the rules and regulations regarding contesting wills cases. For instance, if daughter had pursued the issue in November 2011, the results of the case may have been much different. Instead, because of the delay, her claim was denied and she received nothing.

Therefore, if you’re considering making a family provision claim, you should contact a contesting wills lawyer sooner rather than later.

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Contesting Wills
 — Gerard Malouf & Partners

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