Justine Aubin: Good morning everyone, my name is Justine Aubin and I’m one of the lawyers in the Contested Estates department here at Turnbull Hill Lawyers.
Adrian Corbould: And I’m Adrian Corbould, Accredited Specialist in Wills and Estates, also at Turnbull Hill.
Adrian: So, Justine, you’ve been having a series of repeating enquiries, so I thought we’d talk about that today.
Justine: That’s right.
Adrian: We could talk about that?
Justine: Yes, so I had a few enquiries lately in which people have been asking me about the 12-month time limits in Family Provision claims here in New South Wales and one of the things that I’ve noticed people being a bit confused about are the fact that there are circumstances in which you can bring a claim out of time. So, I just want to go through the factors that the court will consider.
Adrian: So, bringing a claim, what does that mean?
Justine: So, commence proceedings in the Supreme Court. That’s right.
Adrian: So, if I might use myself as an example. I’ll pretend to be an enquirer. So, I call up and I say I’m, my father has died. He died two years ago. We drifted apart, not through any and animosities, just I was leaving overseas. I’ve only just found out that he died. I know nothing about this area of law whatsoever and I’ve come to you.
Justine: So, the first thing that I would probably want to discuss with you is the reason why you haven’t commenced proceedings within time. So, I’ll ask you as to whether you knew your father’s date of death. Whether you knew about the time limit.
Adrian: Yep, so I’ve only just learned of the death and I’ve only just learned of the time limit from you.
Justine: Okay, well in that case, so if you’ve only just found out about the date of death and a time limit now from me then, I would move on to the next thing that the court would consider. So, I would then ask you questions as to your claim, so I want to try and find out whether your claim’s got merit.
Adrian: Just on that other one, possibly I may have known of the date of death, but I had no knowledge of that this law even existed.
Justine: Yep, then that would be fine. Then we still go on and talk about other factors. So, then we’d talk about whether your claim’s got merit. So, we’d make sure your eligible, you’ve got need.
Adrian: Yep, I’m a child, I’ve got debts, I’ve got a mortgage, credit card debts.
Justine: Whether the estate would be sufficient to find a claim as well.
Adrian: Yep, so let’s say it’s a million-dollar estate, okay.
Justine: So, we go through a few different things like that. If it sounds like your claim’s got merit, then I’d also want to find out whether you bringing a claim out of time would be prejudicial to other beneficiaries. By that I mean, if for example the estate’s already been distributed, so after the 12 months’ time limit, no claims are brought, estates being distributed.
Adrian: And what does distributed mean?
Justine: So, for example there’s cash, money’s been distributed equally to the beneficiaries for example.
Adrian: Paid out?
Justine: Paid out, Yes. If you bring, let’s say the beneficiaries have spent the money, They spent the money, the money’s gone. You bring a claim out of time would then mean that the beneficiaries would have to somehow get the money back together. That would be prejudicial to them. So, the beneficiaries in that case would need to be added as defendants to the proceedings.
Adrian: Sure, so if they haven’t spent it, they’ve still got it in a bank account, it would be an inconvenience, but it might not be prejudicial. But if they went on a holiday and did renovations to the house and the money’s actually left their control, that would be a prejudice to them.
Justine: That’s right. So, if for example the estate was comprised of a house, the house hasn’t been sold, then in your case for example, if the estate is a house it hasn’t been sold then there’s no prejudice to anybody.
Adrian: Okay and the next…
Justine: The next thing that court will look at is whether there’s been any unconscionable conduct by either party. So, whether there’s been any bad behaviour by either party. So, for example, you’ve been trying to find out, you’ve been trying to obtain a copy of the Will or trying to find information about the estate, and nobody’s been giving it to you on purpose. If the executors have been withholding information from you. The unconscionable contact can be from either side.
Adrian: So, I could have actually known about the time limit and just not done anything about it.
Justine: That’s right.
Adrian: And have not disclosed that to anyone.
Justine: Yeah, that’s right. So, they’re the main things that the court will look at in deciding whether they should grant leave to a claimant to commence out of times. Just to be clear, if you do commence out of time, you will have to get all that evidence together and that issue will be determined at hearing.
Adrian: At hearing. So is there not some kind of initial little mini-hearing I can have to see if I go ahead? I’ve got to go through the full gamut of the claim.
Justine: That’s right.
Adrian: Okay. Well that has been a very excellent summary of everything. Thank you very much Justine.
Justine: Thank you.
Adrian: If you need some more information, whether as a claimant or an executor, please contact us to discuss further.