Hello, I’m Adrian Corbould, Accredited Specialist in Wills and Estates at Turnbull Hill Lawyers with Battle of Wills,, where I discuss contested estates and wills generally.
Family provision claims and the Extension of time – New South Wales edition
In New South Wales there is a time limit of 12 months from the date of the deceased’s death to commence legal proceedings to make a family provision claim.
Again, a family provision claim is one where a claimant can establish:
They are an eligible person to make such claim; and
they can establish the deceased did not make adequate provision for them in their will.
Now there are hundreds of cases running dozens of pages as to determining the above two matters where the claims have been brought ‘within time’, that is, within 12 months of death.
So, you might think this 12-months is a hard and fast rule, and that if the claim is not brought a sliding stone door is brought down blocking any claim, not unlike Indiana Jones in one of his multiple tomb-raiding adventures.
Well, there are exceptions.
The first one is one of my favourite legal expressions – “consent makes the law”.
If the parties involved consent to the application being brought outside of the 12-month time limit, then generally a court cannot interfere with this agreement and will treat the matter as if it was brought within time.
The second is when the court rules that although being out of time, an extension of time is permitted.
In making such a decision, the court reviews four general considerations:
Is it a good claim?
Would there be any prejudice to any beneficiaries in allowing the claim – that is, generally someone who has received a distribution from the estate (eg. “I received money from the estate and I spent it/paid off loan.”)
Is there a reasonable explanation for the delay in bringing the claim?
Is there any unconscionable conduct by any person? Bad behaviour basically.
Instances where an extension may and this is a big, upper case, bold, underlined MAY be granted include:
Where the applicant was unaware of their rights to make a claim and there will be no detriment to beneficiaries. This may include where a claimant was unaware they could even make a claim, or were unaware of the time limit.
The delay is short and the estate is undistributed
Where relevant facts have been intentionally concealed from the claimant, such as the deceased has died, and the date of their death
Instances where the extension may and this is a big, upper case, bold, underlined MAY be refused include:
The claim is weak
The claimant was aware of their rights to claim – and aware of the time limit – but chose not to act on them until a substantial period after the time limit expired.
The beneficiaries would be prejudiced – such as, it would be difficult for them to repay their distributed benefit back to the estate; and
The estate has been fully distributed.
Of course, the best course for a claimant is to not have to deal with any of the above, and to make early enquiries and obtain early legal advice.
So, claimant, executor, or beneficiary if any of the above applies to you – don’t bury your head, get legal advice.