Family Provision Claim – Out of time – Extension of time – Limitation period

Stone v Stone [2016] NSWSC 605

The Family

Aston Stone died at age 83. He left his entire estate to his (third) wife, Estelle. They were married for 39 years. The plaintiff, Bettina, is Aston’s daughter from his second marriage. Bettina makes a family provision claim after being left out of Aston’s will.

Limitation Period

Family Provision claims must be made within 12 months after a person dies. Bettina’s lawyers were negotiating with Estelle’s lawyers to try and come to an agreement of how much Bettina should get from the estate without going to court. Five days before the 12 month period was about to expire, Bettina’s lawyers asked Estelle’s lawyers for a 14 day extension so they could gather more information on Bettina’s family provision claim. Estelle’s lawyers agreed. On the 10th day of the extension, Bettina’s lawyers sent the information on Bettina’s claim to Estelle’s lawyers. Six days later, Estelle’s lawyers responded and said that the 12 month period has expired and Bettina could no longer make a claim. Estelle’s lawyers argued that the parties could only agree to an extension of the 12 month period under the old legislation (Family Provision Act 1982 NSW) and not the new legislation (Succession Act 2006 NSW). Therefore, Estelle’s lawyers argued that the 14 day extension had no legal effect and the 12 month period expired on its original expiry date. Bettina lodged her family provision claim 5 weeks after the 12 month period had expired.

Extension of Time

A judge has the power to grant an extension of time in family provision cases if they decide there is “sufficient cause” to do so, or in other words, if there is enough reason to do so. The judge will look at all the circumstances of the case to decide if there is sufficient cause. This could include whether it would be unfair to any beneficiaries not to extend the time, whether any party has acted unfairly or dishonestly, and how likely it is that the person making the family provision claim would succeed in the end. In this case, the Judge decided that Estelle’s lawyers had acted unfairly by agreeing to the 14 day extension but not keeping to the agreement. The Judge understood that the only reason Bettina did not make the claim before the deadline is because she believed that Estelle’s lawyers had given her the extension. The Judge granted Bettina the extension of time.

Family Provision Claim

In the end, Bettina’s family provision claim was successful. The Judge took into consideration the fact that Aston had left Bettina and her mother when Bettina was 6 years old. Aston had not provided for Bettina for most of her life as a father should. The Judge awarded Bettina a 1/6 share in Aston and Estelle’s home in Vaucluse. However, the Judge awarded the 1/6 share as a “remainder in life estate” which means Bettina cannot receive her share until after the death of Estelle.


Family Provision Claim – Dependency – Adequate provision

Olsen v Olsen [2019] NSWSC 217

The Family

Colin Olsen had a child, the plaintiff, with his first wife. Colin and his first wife separated after 2 years. Colin remarried and had 3 children with his second wife, Beverley. They stayed married for 56 years. Colin left his entire estate to Beverley in his will. The plaintiff made a family provision claim for $250,000 on the basis that he has not been adequately provided for in the will.

Circumstances and Needs

The Judge considered the circumstances and needs of each party. The eldest son, Marc, was 57 years old, has an HIV infection, lives alone, works one day a week, has no significant assets and receives a disability support pension. The daughter, Micheline, was 56 years old, is divorced, unemployed, receives a single parent’s pension, suffers from health issues and has two sons, one of which also suffers from health issues. The youngest son, Dean, was 50 years old, unemployed, owns his own home with his wife, earns income from renting out a room in his mother’s house and has one daughter. The plaintiff was 61 years old and ran his own legal practice with his wife. The structure of his business was considered to be financially sophisticated, being organised around a company and trust whilst paying for their personal expenses including a number of overseas holidays. The company turned over approximately $370,000 per year. The plaintiff and his wife own a number of properties. They have two sons who live with them. The Judge noted that adult sons and daughters generally have a lesser dependency and need than children. In making his decision, the Judge tried to put himself in the deceased’s shoes – what would a reasonable and rational person do in this situation? The plaintiff was successful in life. He was able to support himself and his family financially. The 3 children were not successful and they had a greater need than the plaintiff. The Judge concluded that a reasonable and rational person would have provided for the children who needed it most. The Judge dismissed the plaintiff’s claim. The will stayed as it was.

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