Time Limits in Family Provision Claims: Procrastination can be a Costly Error

A recent case in Western Australia, Drake v Bradshaw (2018), has re-emphasised the importance of making family provision claims within the statutory time limit. It also illustrates what might persuade a court to exercise its discretion to extend the time limit for making a claim or, in this case, not to.

Key facts

The deceased, Mrs Drake, had three adult children. Her main asset was a house worth $630,000. Probate was granted to a friend, Ms Bradshaw, with the Will giving the house and car to Ms Bradshaw with the rest to be distributed among the three children. Distribution took place three months later with each of the children receiving $18,000. Having taken legal advice, Ms Bradshaw waited for the six-month time limit on claims before she sold the house. On receipt of the proceeds, she spent $300,000 to renovate her own house, gave $110,000 to her sister, retaining $100,000.

Two months after the time limit had expired, Mrs Drake’s son applied for further provision but this was refused in the “interests of justice”. Importantly, Ms Bradshaw had distributed the estate having taken a cautious approach and legal advice. The son appealed but, while the Court of Appeal agreed more weight should have been given to the son’s case, this was not a fatal error. The Court considered that the judge had not made a material error of principle but even if there had been, the exercise of discretion would have had the same outcome. A number of factors were considered to be relevant, including the fact that, although the son was unaware of the time limit, this lack of awareness was not of itself sufficient reason to grant an extension. He lived in his mother’s house for the six months but took his time to make the claim. Ms Bradshaw had limited income and would probably have to borrow if she had to reimburse the estate. Further, she had a medical condition to which the stress could have worsened her condition. A substantial part of the son’s claim of about $210,000 would probably be taken up in legal fees with the net benefit being limited.

Family Provision Claims and Time Limits in New South Wales

A family provision claim is an application to the Supreme Court for a share, or larger share, of the estate of a deceased person. Claims can be made by an “eligible person” such as a spouse, child or other dependents if they have been left out of a Will or did not receive what they thought they were entitled to.

Family provision recognises the moral obligation to provide for people who are dependent on others when they die by giving them adequate provision not made in the Will. If it is believed that you have not been adequately provided for in the Will of a family member, then you can make a family provision claim on the estate of the deceased person.

There are, however, strict time limits on how long a person has to make a claim for a family provision contestation of the Will of a deceased person. In NSW, family provision claims are governed by the Succession Act 2006. If you are considering contesting a Will on this basis you need to commence court proceedings within 12 months of the Will maker’s death. In other states, this can be a shorter period as demonstrated in the case discussed. If this time limit is not complied with then the claimant must show “sufficient cause” as to why the court should consider extending the time limit, allowing the claim to be considered. The merits of the claim would then be determined separately.

Extending the Time Limit

The NSW Supreme Court set out the factors the Court would consider when deciding if they would extend the time limit for making a claim in Thomas v Pickering; Byrne v Pickering (2011):

• the reasons for the claim’s lateness
• whether the beneficiaries in the will would be unfairly prejudiced
• whether there has been any unconscionable conduct by either party
• the strength of the claimant’s claim

The Supreme Court has, in effect, wide discretion in looking at the reasons a claimant may argue for not having claimed within the prescribed time limit. In Butler v Morris (2012), Justice Hallen commented that:

“Ultimately, justice is the paramount consideration in determining whether to extend time for making an application...”.

Case study

In Milewski v Holben (2014), Szabo & Associates, Solicitors acted for the plaintiff. Full details can be found in Recent Successes on this website but, in essence, the client was a woman from the USA who made a family provision claim against the estate of her ex-husband who was Australian. Initially her claim seemed time-barred as the 12 months limit had been passed. In this case the client was five months late. The reason was that she had only become aware of her entitlement to apply when the defendant, the deceased’s widow, made her own application for family provision relief just within the 12-month limit. Under the Succession Act, when a family provision order is applied for, all other potential claimants to the Will need to be notified and it was this notification that alerted the former wife to the possibility of making her own claim.

The judge accepted the “sufficient cause” justifications put forward by the legal team ordering an extension to the time limit and subsequently accepting that an application for a family provision order was justified.

What does it mean?

Family provision claims are subject to statutory time limits. The reason for this approach is that it is considered that it is best that estates are administered in a timely fashion, particularly noting the added difficulty of making claims against an estate once the assets have been distributed with the possibility of having to be recovered from other beneficiaries.

It follows that it is important that you protect your rights by seeking legal advice and lodging your claim within the time limit. There are, however, exceptional circumstances where the court may allow a claim outside of the time limit and Szabo & Associates, Solicitors can assist you in assessing the probability of the request being accepted and, indeed, the claim itself.

Contact our Wills and Estates Lawyers in Surry Hills, Sydney

Szabo & Associates, Solicitors, can offer expert advice on a wide range of legal matters, including contesting, making or updating a Will and preparing an Enduring Power of Attorney and Appointments of Enduring Guardians. Please call George Szabo on (02) 9281-5088 or fill in our online contact form.