In New South Wales the Succession Act provides that an eligible person must commence Court proceedings for provision out of the Estate of a deceased person within 12 months from the date of death.

If proceedings are not commenced within this time then the Claimant will be met by a defence that the claim is statute barred and should be dismissed.

Under Section 58(s) of the Act the Court has discretion to extend the time for making an Order. Such extension is granted only upon sufficient cause being shown, often where there is no prejudice to the Estate, and where the delay is explained by the person challenging the Will.

A case that considered extensions of time in the New South Wales jurisdiction is the case of O-Brien v Luscombe. In this case the Supreme Court was asked to consider a claim for provision when the claim was brought 8 years after the time to bring a claim had expired.

In this case the Court considered four general questions to be considered when determining whether to extend the time limit.

1. Is it a strong claim with sufficient merit?

2. Is there any prejudice to any beneficiaries that have already received an interest from a distribution from the Estate (including any real expectations in relation to property)?

3. Is there a reasonable explanation for the delay in bringing the claim?

4. Is there any unconscionable conduct by any other person?

Any attempt to extend the limitation period will be considered on its individual facts. If an out of time Claimant is able to enliven the jurisdiction by extending the time this does not necessarily mean that a claim will succeed. A Court if it is to allow an eligible person to make a claim out of time would then need to satisfy itself of two questions:

1. Has the Applicant, been left with adequate provision for his or her proper maintenance, education and advancement in life? And if not,
2. What provision ought to be made of the Estate of the deceased in favour of the Applicant?

If you require specialised advice in respect of a potential claim involving a Will, Everingham Solomons, has the expertise to assist you with respect of such claims, because Helping You is Our Business.


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