Time limits on Making a Family Provision claim

Date: May 30, 2012
Document Type: Article

A claimant has 12 months from the date of the deceased’s death to bring a claim for provision from the deceased’s estate. Under s58(2) of the Succession Act 2006 (NSW) the court may extend the time limitation where the claimant can show ‘sufficient cause’.

There is a high standard for what is required for a claimant to show ‘sufficient cause’. For example a solicitor’s oversight in failing to commence proceedings within the time limit will not by itself without more be a sufficient cause. The claimant may have to show further reasons for bringing their claim out of time such as being unaware of the deceased’s death or that they are unaware that they are or may be an eligible person.

The reason for this strict approach reflects the judgment of Parliament that is best for estates to be administered in a timely fashion so that people can move on with their lives following the death of the deceased.

There is also added difficulty if a claim is made against an estate after the assets have been distributed. The Court takes the view that it is much more difficult to take money away from a beneficiary who has already received a distribution than it is to prevent a beneficiary from receiving a benefit in the future.

However the fact that an estate has been distributed is not a complete bar on recovery. In the recent case of Madden-Smith v Madden Pembroke J suggested that recovery may be available in extreme instances, for example a deserving daughter living in a Bhuddist monastery and out of touch with the world may have a good argument that the time limit should be extended.

If you need an experienced lawyer to advise you in your claim against a deceased estate, particularly if it is almost 12 months since the deceased died, call Dominic Wilson on 8268 4000.

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