Family Provision affirms that Time & Tide waits for no one

Family provision legislation imposes a legal obligation on the Will maker to make proper provision for the support and maintenance of certain defined dependents.

Legislation provides that the task of the court is to determine the extent of the provision made for the maintenance, education and advancement in life of the dependent if the Court believes it is inadequate, evaluate what provision, if any, would be adequate.

The purpose of Family provision Acts is not to provide for an equal share of an estate to an aggrieved party it is limited to the provision of adequate maintenance and support out of the deceased’s estate.

The Court’s role is to place itself in the position of the Will maker, and having taken the facts and circumstances into account decides if the Will maker has breached their moral duty toward their dependents. The moral duty of the Will maker has been defined as the actions society reasonably expects of a person in the circumstances, by reference to contemporary community standards.

Margaret Drake died in September 2014 her Will named her daughter Deborah as executor and left her house in Kewdale and contents and her car to her with the residue of the estate to be divided amongst her three children Deborah, Loraine and Andrew.

Probate of the Will was granted to Deborah in November 2014 shortly after the residue of the estate was distributed with the beneficiaries receiving about $18,700 each. At this time Andrew raised no concerns and made no suggestion that he intended to seek further provision from the deceased’s estate.

In October 2014, Deborah and Lorraine sought legal advice concerning the grant of probate. The solicitor advised them that as there was a six month time limit within which certain persons could seek further provision from the estate they should wait at least six months before they sold the Kewdale property.

Following this advice Deborah Lorraine and Andrew had a meeting where Loraine told Andrew the Kewdale property would not be sold for at least six months ‘in case anyone contested mum’s will’. Andrew later claimed that he did not understand from these discussions that a six month time limit applied to him.

Andrew lived in the Kewdale property for six months following Margaret’s death.

In July 2015, the Kewdale house was sold Deborah received about $638,000 the contents were distributed amongst the three children at the same time.

Following the sale of the Kewdale property Deborah spent $300,000 renovating her home, gave Loraine $110,000 leaving approximately $100,000 of the proceeds of the sale.

In February 2017 Andrew sought to file a family provision claim over 1 year 9 months after the expiry of the relevant time limit.

The application stating that Margaret’s Will had left Andrew without adequate provision for his proper education, maintenance, support and advancement in life, and he sought leave to file a claim under the Act after the time for bringing the claim had expired. Andrew argued the $100,000 was the ‘undistributed’ portion of the estate.

Andrew says the reason for the delay was that since his mother’s death he had fallen on hard times is homeless and prior to that, he was living out of his car until the car was stolen. In those circumstances seeking of legal advice was perhaps the furthest thing from his mind.

Weighing all factors in the balance, the court accepted that Andrew has an arguable case and there is some explanation for the delay. But the time limit is a substantive provision and not a mere procedural time limit. Essentially Andrew’s ignorance of the law combined with his difficult circumstances was a factor in proceedings not being commenced.

The Court disagreed the $100,000 was not in any way part of the deceased’s estate the estate of the deceased has been fully distributed. Had Deborah been aware of the prospect of a further claim by Andrew, she may not have spent the full $300,000 on renovations. Deborah spent money on house renovations and made a gift to her Loraine based upon her belief as to her entitlement from the estate.

The view of the Court was that the distribution of the estate was decisive and was largely the reason for the refusal of the grant of leave; The Executrix acted prudently and with the benefit of sound legal advice waiting six months from the grant of probate before taking any steps to distribute the estate. They then acted as they were entitled to do and it would not be in the interests of justice if the plaintiff were now granted leave to issue proceedings

The Court of Appeal agreed that the lower court should have given more weight to the strength of Andrew’s case, however even if there was a material error, the exercise of judicial discretion would have resulted in the same outcome.








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