Date: Jul 03, 2013
Document Type: Article

Section 58(2) of the Succession Act 2006 requires an application for a Family Provision Order to be made not later than 12 months from the date of death of the deceased person unless the court otherwise orders “on sufficient cause being shown”.

The equivalent section under the old Family Provision Act 1982 contemplated the parties consenting to an extension of time i.e. the parties consented to the plaintiff commencing proceedings out of time in which case the Court would in most cases ‘rubber stamp’ the application to commence proceedings out of time.

Section 58(2) requires the Court to grant any such extension of time only upon “sufficient cause” being shown. That means the parties might consent to the application but the Court itself may not  grant the application to commence proceedings out of time.

What is sufficient cause?

A review of the cases considering what constitutes “special cause” indicates that in general terms matters relevant to the exercise of the Court’s power to extend time include:

  • the existence and strength of the case in relation to which the extension of time is sought;
  • the reason for failure to commence proceedings in time;
  • any prejudice caused by the late commencement of proceedings;
  • any unconscionable conduct by either side.

Incompetence or negligence of a solicitor in not filing the application before the deadline of 12 months expires may be, but is not always, relevant when the court considers the application to commence proceedings out of time. Every case is decided on its facts.

If you are aware of the date of death of the deceased and your eligibility (or possible eligibility) as a person who has (or may have) a claim against the estate of the deceased, you should instruct a solicitor as close to the date of death as you can.

Dominic Wilson is a highly experienced wills and estates lawyer and is a partner at Craddock Murray Neumann. Please phone him if you need assistance.

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