"Sufficient cause" and "otherwise orders": Making a family provision claim more than 12 months after the date of death

03 October 2019

Sreckovic v Sreckovic [2018] NSWSC 1597 was a family provision dispute between two sisters. The deceased mother had left her entire estate comprising a Sydney residence and a modest bank account to one daughter. The other daughter was excluded on account of a period of estrangement between her and the deceased. The evidence is not clear as to how long the estrangement lasted, although it existed at the time the deceased made her last Will, ten years before her death.

The excluded daughter’s claim for provision was made 17 months after the deceased’s date of death. Section 58(2) of the Succession Act 2006 says:

“An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.”

Therefore, the Plaintiff had to show sufficient cause for the Court to allow her application to be heard. The Plaintiff’s evidence in this regard was “inadequate”, but the Defendant did not counter the application being made out of time.

Had the Defendant produced evidence as to why the five month delay was inconvenient, the court might not have considered the application, saying:

“It is fair to say that the period of delay, namely five months, is not that long. The Defendant gave no evidence of actual prejudice. Nor was any submission made in relation to presumptive prejudice. Nor did the Defendant give any evidence of unconscionable conduct on the part of the Plaintiff in not bringing the proceedings within time… Had there been such evidence, it would be difficult to conclude that an ‘otherwise order’ should be made.”

Rather, the lack of evidence by the Defendant countering the Plaintiff’s extension of time to make an application for provision, was construed by the Court as sufficient reason to allow it to consider the application for provision itself:

“A refusal to extend time would result in prejudice to the Plaintiff. The justice of the case, in my view, requires the Court to make an ‘otherwise order’.”

Having heard the matter, the Court awarded the Plaintiff only a relatively modest sum of $100,000. It is likely that a portion of the Plaintiff’s legal costs would have been paid from this sum too.

For legal practitioners, it is worth noting Hallen J’s comments about the affidavit as to costs and disbursements as the lawyer: “Did not state, in the affidavit, whether the estimated costs have been calculated on the ordinary, or the indemnity basis. He also did not state whether the Plaintiff had paid any amount on account of the costs and disbursements. (These are matters that should always be included in a solicitor’s affidavit as to costs relied upon at the hearing.)”

This article was written by Philip Davis, Special Counsel.

Publication Editors: Michael Henley, Partner and Philip Davis, Special Counsel


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