Extension of time applications

As noted above, the time for making an application may be extended where the Court is satisfied that sufficient cause has been shown, or where the parties to the proceedings consent to the application being brought out of time.

Leaving aside cases of consent, McGrath J in Toppi v Toppi (No 3) [2025] NSWSC 733 recently provided a useful summary of the principles governing what constitutes ‘sufficient cause’:

[437]  Certain policy reasons and considerations underlie both the time constraint and the “sufficient cause” exception prescribed by s 58(2) of the Act. These include the need to ensure that applications for family provision do not unduly interfere with the prompt administration of deceased estates, reflected in the assessment by parliament that “the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications”, particularly since eligible persons will, in the vast majority of cases, be on notice of the testator’s death and the provision (or lack thereof) made for them: Madden-Smith v Madden [2012] NSWSC 146, Pembroke J at [24]. In Madden-Smith, Pembroke J observed at [23]–[24] that:

[23]… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3).

[24]  The short time period imposed by Section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator’s death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased’s relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12-month time limitation. In those circumstances, the statutory exception requiring ‘sufficient cause’ may well apply.

[438]  The 12-month limitation period for the bringing of such applications is not a mere formality or procedural rule; it is a substantive provision laid down by the statute and should be treated as such: Verzar v Verzar [2012] NSWSC 1380, Lindsay J at [98]; Stone v Stone [2016] NSWSC 605, Brereton J at [36].

[439]  A useful summary of the principles applicable to the determination of an application seeking an extension of time, cited in full by Griffiths AJ in Anderson v Yongpairojwong [2023] NSWSC 1359, at [255], appears in Thomas v Pickering [2011] NSWSC 572, Hallen AsJ at [84]–[90]. Paraphrasing Hallen AsJ, those guiding principles are as follows (citations omitted):

1. The court’s decision to extend the time in which an application for provision may be made is a discretionary decision unbounded by rigid rules or statutory criteria other than the threshold requirement of sufficient cause being shown.
2. Considerations relevant to the exercise of the discretion under s 58(2) include, principally, any reasons for the lateness of the claim, as well as whether any beneficiaries under the will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by any of the parties; and the strength of the applicant’s claim (as determined by the court).
3. Potential prejudice to the beneficiaries means any prejudice arising from the delay in lodging the claim rather than any disappointment consequent upon readjustment of the interests under the will in order to make provision for the applicant. A lengthy lapse of time between the deceased’s death and the bringing of the application may itself generate prejudice.
4. “Unconscionable conduct” in this context refers to any deliberate delay in commencing proceedings calculated to induce in the beneficiaries a false sense of security; however, it is unlikely that a change of mind due to some change in the material or financial circumstances of the applicant that occurred after the expiry of the limitation period amounts to unconscionable conduct.
5. Where the delay in bringing the application is not excessive and the estate is yet to be distributed, a lack of knowledge about the right to bring a claim during the 12 months post-death, together with a prompt application to extend the time upon the right to claim becoming known, will usually be a sufficient explanation.
6. The applicant bears the onus of establishing sufficient cause.

[440]  The expression “sufficient cause” refers to sufficient explanation, justification or excuse for the application not having been made within the period prescribed by statute: Moore v Randall [2012] NSWSC 184, White J at [39]; Underwood v Gaudron [2014] NSWSC 1055, Hallen J at [119]. In Underwood, Hallen J at [125] considered in relation to sufficient cause, that the court must consider not only the period prescribed by s 58(2), but also the period after those 12 months had expired and before the proceedings were brought, since that lapse of time will ordinarily induce in executors and beneficiaries a legitimate assumption that there will be no challenge to the will.

[441]  In Verzar v Verzar [2014] NSWCA 45 (Verzar appeal decision), Meagher JA (with whom Macfarlan and Barrett JJA agreed) elaborated on the kinds of unconscionable conduct, on the part of either the applicant or the beneficiaries, that might justify the grant or refusal of the application to extend time, stating at [25]:

… In Re Dun (Deceased) (1956) 56 SR (NSW) 181, Myers J (at 183) suggested that such conduct by an applicant might include electing to be bound by the will or, knowing of his or her rights, delaying for a long period to make an application or lulling the beneficiaries into a false sense of security so that they order their affairs on the basis that their legacies will not be disturbed, or refrain from requiring a speedy distribution of the estate. A particular prejudice which may have to be considered is that which flows from allowing an out of time application to proceed, if that would or may have the effect of improving the applicant’s position, from that which would have existed if it had been made in a timely way: Durham v Durham at [37], [56], [87] (Tobias JA; Campbell and Young JJA agreeing).

[442]  As indicated by Meagher JA in the Verzar appeal decision at [33]–[35], the relevance of the strength of the applicant’s case for the making of a family provision order to the question of sufficient cause to extend time for the bringing of the application is twofold. The first aspect is whether the application as made and as at the time it is, or is likely to be, heard has sufficient prospects of success to justify an extension. The second aspect is whether allowing the family provision application to be brought out of time would or may have the effect of improving the applicant’s position compared to that which they would have occupied had the application been brought within the statutory limitation period. In this connection, in the Verzar appeal decision at [35], Meagher JA noted:

Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. …

[443]  In considering whether there has been a sufficient explanation for the delay in bringing an application for provision, a mere change of mind on the part of a plaintiff who had decided not to bring an application and then does so, will not ordinarily constitute sufficient cause for granting an extension of time: Henry v Hancock [2016] NSWSC 71, Brereton J at [47].