A Family Provision Application must be made within 12 months of the deceased’s death, unless sufficent cause can be shown. The question then arises: what factors are needed to show sufficent cause?
The Time Limit
Pursuant to section 58 of the Succession Act a family provision application must be commenced within 12 months of the deceased's death. An application can only be commenced after the time limit has passed if all the parties to the proceedings consent to the application being commenced or the applicant can show that there is sufficent cause to grant an extension of time.
In determining whether their is sufficent cause, the Court has regard to the following factors:
- The sufficiency of any explanation for the plaintiff’s delay in making a family provision application;
- Any prejudice to beneficiaries;
- Any unconscionable conduct on the part of the plaintiff; and
- The strength of the plaintiff’s case.
An applicant may be successful in showing sufficent cause in circumstances where:
- The applicant was unaware of the deceased's death;
- The applicant was unaware of or misinformed as to their legal rights under the will and their eligibility to contest the will; or
- The applicant received insufficent or inaccurate legal advice.
The deceased’s will left $1000 each to his two sons and left the rest of the estate to his grandchildren. The applicant, Sebastian, agreed with his brother, the executor, to be informally given half of their father’s estate contrary to the will’s terms. Following the deceased’s death, the executor paid Sebastian substantial periodic payments, however, the executor failed to honour his agreement to give him half. Sebastian subsequently obtained legal advice regarding the agreement and was informed that the agreement was contrary to the executor’s fiduciary duties, and that he was obligated to pay back the money he had received to the estate. Consequently, Sebastian filed a family provision application to legitimately obtain further provision out of the estate. The application was made three years out of time and thus needed sufficient cause to be heard.
Did The Applicant Have Sufficient Cause?
The Court found that there was sufficient cause to allow Sebastian’s application to proceed out of time. In this, they noted the following:
- Sebastian’s delay in commencing proceedings was explained by his reliance on his agreement with the executor. The agreement and the periodic payments made to him led him to believe that he would not need to undergo court proceedings to obtain provision from the estate. Prior to receiving legal advice, Sebastian was unaware that the executor was not authorised to make the agreement.
- The estate had not yet been distributed, which meant a family provision order could be made and enforced more easily than if the estate had already been distributed.
- No material prejudice was incurred by the beneficiaries by the making of the application, other than the fact a family provision order might be made.
- Furthermore, upon gaining legal advice, unconscionable conduct on Sebastian’s part was negated by his recognition that he would need to return the funds he had been paid under the agreement.
- Sebastian had a ‘reasonable prospect of success’ in obtaining a family provision order.
Sebastian was permitted to bring an application for provision out of the estate. The Court found he had been left without adequate provision for his proper maintenance, education and advancement and ordered the $101,021 debt to the estate to be forgiven, and a further legacy of $50, 000 was awarded to Sebastian.
In determining whether you have sufficient cause, the Court will have regard to various factors, including the conduct of the applicant, the impact on beneficiaries, and the prospects of the application. If sufficient cause can be established, the Court will be able to hear an out-of-time family provision application.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.