Family provision claim fails 6 years out of time

Henry v Hancock [2016] NSWSC 71

An adult daughter has had her claim for family provision rejected by the Supreme Court of NSW. The claim was brought against her late mother’s estate 6 years after death and after the whole of the estate had already been distributed to the deceased’s surviving husband, the daughter’s step-father.

The actual estate that was owned solely by the deceased at the date of her death was around $31,000.00 in value. The deceased’s half interest in the property owned jointly with the step-father was worth around $1,250,000.00.

A conversation was held beside the deceased’s deathbed between the deceased, the daughter and the step-father. The Court was told the deceased said to both:

“Look after [my daughter] and the kids. You both need to take care of each other. I want everything to go to [my daughter] after you go. Can you promise me that?”

The step-father reportedly replied:

“Yes, … I’ll look after her. You know that”

After the step-father went outside, the deceased reportedly said to her daughter:

“Everything I own is for you and your children. [He] knows that. He will look after you”

After the deceased’s death, the step-father made a will leaving the whole of his estate to the daughter.

The daughter sought legal advice regarding the possibility of challenging her late mother’s will. She was advised the time limit of 18 months from the date of death (as it then was in 2008) had recently expired, but that an extension of time could be sought. She decided not to make a claim at the time and indicated she would consider making a claim against her step-father’s estate if necessary.

The relationship between the daughter and step-father soured and they became increasingly estranged. The step-father also remarried (which likely revoked his prior will) and he removed the daughter as his power of attorney and co-trustee of his superfund.

The daughter again sought legal advice and was advised of the risks of litigation, including that an adverse costs order could be made against her. She again decided not to proceed with litigation. Despite the time limit to make a claim against her late mother’s estate expiring in late December 2007, the daughter eventually filed a family provision claim in September 2013.

The judge took the view that had the daughter acted quickly and not delayed making a claim, grounds would likely have existed to allow the Court to extend the time limit. However, as the claim was made so late and after legal advice had been obtained to the effect she should act quickly, the time limit was not extended. The judge dismissed the application and ordered the daughter to pay the step-father’s legal costs.

There are a number of lessons that can be learned from this judgment. The first is that you should not delay or allow time to pass without making prudent enquiries to understand your rights and options. The second is that you should seek experienced legal advice when you have a legal problem. Once you have received that advice, consider the consequences of not taking that advice.

Time limits are important.

If you are a beneficiary, an executor, or you have been inadequately provided for in will, we encourage you to contact Turner Freeman Lawyers without delay so you may understand your rights and options when you want to contest a will, challenge a will, or make a claim.

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