Son achieves express provision order from father’s estate

Date: Jan 24, 2018


The Supreme Court has granted out of time provision from the estate of a French citizen to his estranged son who was left nothing in the deceased’s Will. The plaintiff’s success came despite his Summons being issued more than two years after the deadline expiry to contest the estate.

The details of the case
The deceased moved from France to Sydney in 1980 with his wife, adopted child and youngest son (the plaintiff). After his parent’s marriage ended in 1994, the plaintiff left the family home.
His adopted brother died three years later, and his late father passed away in London in 2011 after a battle with cancer. The deceased’s entire estate (aside from a small gift to a friend) was entrusted to his older brother in France. After he died less than a year later, the estate passed to his mother.
After maintaining a good personal relationship for a few years, a breakdown in communications led to the plaintiff taking legal proceedings against his grandmother as the executor of the deceased’s estate. This happened more than 30 months after the death of his father.

What is the legislation around applying for a Summons out of time?

The deadline for applying for a Summons to order provision is exactly 12 months from the day the legal figure of the estate dies. If an applicant fails to submit their paperwork within this timeframe, their Summons will not be considered unless there is sufficient reason (under the Succession Act 2006).

As the plaintiff in the above case applied for provision 33 months after the death of his late father, the onus was on him to convince the Court there were extenuating factors of sufficient severity preventing him from meeting the deadline.

How was plaintiff successful?

In the time around his father’s death and in the following year, the plaintiff contested that:

  • He did not find out about his father’s passing until more than six months later;
  • He was only informed of his exclusion from the Will several months after he found out his father had passed away; and
  • He was not aware of his family provision entitlement until nearly three years after. He also claimed that when he became aware of his eligibility, he started proceedings within weeks.

Upon reviewing the evidence, the High Court agreed that:

  • Although there were attempts to inform the plaintiff about his father’s death, these were insufficient.
  • The plaintiff was not made plainly aware of the content of his late father’s Will until a visit to France in September 2012, nearly a year after his father’s death.
  • Once he was aware of his entitlement to provision from his father’s estate, the plaintiff moved to inform his grandmother of his intentions and then secure legal council.

This NSW resident was able to secure fair provision from contesting a Will – but he did so with the advice of specialised legal representation. If you feel dissatisfied with the division of a loved ones estate, contact Gerard Malouf & Partners Will Dispute Lawyers to discuss your options.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts or email your enquiry.