//
[2025] NSWSC 389
General information, not legal advice.
Supreme Court of NSW
2025-04-24
Meek J
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Pethers v Pethers [2025] NSWSC 389
Hearing dates: 11 October 2024
Date of orders: 24 April 2025
Decision date: 24 April 2025
Jurisdiction: Equity - Family Provision List
Before: Meek J
Decision: Application for extension of time refused. Summons dismissed.
Catchwords: SUCCESSION — Family provision — Extension of time to bring a claim — Deceased died in early 2011, survived (relevantly) by two daughters and the defendant (a brother) leaving an informal holograph testamentary document — From mid-late 2011 the brother and daughters sought and received legal advice regarding estate claims — Initially both daughters were jointly legally represented — In December 2011, informal Will proceedings were commenced and in July 2012 the holograph testamentary document was held to constitute the deceased’s Will — In February 2012, the elder daughter then having separate representation commenced and (in August 2013) settled family provision proceedings — Consent SMO asserted that defendant had served notices of the elder daughter’s claim on any person who may be an eligible person — Settlement approved — Plaintiff aware of her sister’s family provision proceedings, but contrary to assertion had not been served with a Notice of Claim — Plaintiff believes the defendant would subsequently provide for her and she received some ex-gratia provision from the defendant in 2014 and 2016/2017 — In early 2024, the plaintiff’s belief changed and she belatedly commenced a family provision claim — Held in all the circumstances no “sufficient cause” for proceedings to be brought out of time
SUCCESSION — Family provision — Extension of time to bring a claim — Separate determination of issue
SUCCESSION — Family provision — Extension of time to bring a claim — Policy purposes underlying extension of time provisions in family provision claims discussed — Extension principles discussed
EVIDENCE — Cross-examination — Benefits include in certain instances contextualisation of events and understanding of reasons underlying decisions for certain actions and inaction
SUCCESSION — Will construction — holograph Will leaving entire estate to defendant “to be dealt with as he sees fit. And at a later date for some such provision to be made by him for my daughters…” — Finding that Will did not create a legal obligation for the defendant to provide for the plaintiff and alternatively if it created an obligation to provide, it is too vague to be enforceable
SUCCESSION — Family provision — Parties and affected persons — Forms — Notice of Claim — Service of a Summons and a Notice of Eligible Persons does not satisfy the purposes of service of a Notice of Claim — Practitioners encouraged to familiarise themselves with procedural requirements to avoid potential injustices
SUCCESSION — Family provision — Notional estate — Determination of prior family provision claim and distribution of estate does not necessarily preclude property from subsequently being designated as notional estate — Discussion of criteria as to whether property is susceptible to being designated as notional estate
Legislation Cited: Family Provision Act 1982 (NSW)
Interpretation Act 1987 (NSW)
Succession Act 1981 (Qld)
Succession Act 2006 (NSW)
Succession Amendment (Family Provision) Bill 2008
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bauskis v Liew [2013] NSWCA 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317
Choras v Farmakidis [2020] NSWSC 367
Clayton v Clayton [2023] NSWSC 399
Cobcroft v Bruce [2013] NSWSC 774; (2013) 9 ASTLR 397
De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351
De Winter v Johnstone (Court of Appeal (NSW), Sheller, Powell and Cole JJA, 23 August 1995, unrep, BC9505226)
Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133
Hamod v New South Wales [2011] NSWCA 375
Jurak v Latham [2023] NSWSC 1318
Liosatos v Liosatos [2025] NSWSC 44
Mohareb v Local Court of New South Wales [2024] NSWCA 235
Nielsen v Kongspark [2019] NSWSC 1821
Perrin v Morgan [1943] AC 399
Pethers v Pethers; Estate of Pethers [2012] NSWSC 896
Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37
Re T F Dun (Deceased) (1955) 56 SR (NSW) 181
Samsley v Barnes [1990] NSWCA 161
Tanev v Tanevski [2017] NSWSC 1301
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Underwood v Gaudron [2014] NSWSC 1055
Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641
Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769
Verzar v Verzar [2014] NSWCA 45; (2014) 12 ASTLR 523
Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock (2023) 111 NSLWR 210; [2023] NSWCA 71
Texts Cited: National Committee for Uniform Succession Laws, Report to the Standing Committee of Attorneys General on Family Provision (Queensland Law Reform Commission, Miscellaneous Paper 28, December 1997)
National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, July 2004)
New South Wales Law Reform Commission, Uniform Succession Laws: Family Provision (Report 110, May 2005)
New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 September 2008
Category: Procedural rulings
Parties: Jo Ellen Pethers (Plaintiff / Applicant)
Gregory Pethers (Defendant / Respondent)
Representation: Counsel:
M Gunning (Defendant / Respondent)
Solicitors:
In person (Plaintiff / Applicant)
Parker & Kissane (Defendant / Respondent)
File Number(s): 2024/00167795
HIS HONOUR: The late Kenneth Alfred Pethers (the deceased), born in March 1958, was a troubled man with mental health issues. In the 3 months prior to his death, he was diagnosed with a delusional disorder, Axis II and paranoid traits. [1] He died at an indeterminable time between 28 February 2011 and 1 March 2011, tragically taking his own life.
The application before the Court is a request by the plaintiff, one of the deceased’s daughters, to bring proceedings for a family provision order out of time pursuant to the Succession Act 2006 (NSW) (Succession Act).
The defendant is the deceased’s brother and the person (in circumstances described below) granted administration of the deceased’s estate.
The plaintiff was born in March 1984 [2] (now aged 41). She has an older sister Hannah born in March 1982 [3] (now aged 43). They are the deceased’s only children.
The application arises in an unusual context in which earlier family provision proceedings commenced by Hannah had been determined and the subject of orders made by this Court in 2013 (Hannah**’**s proceedings).
For reasons I explain below, I have determined to refuse to extend time. The plaintiff was clearly aware of Hannah’s proceedings, but no notice was given to the plaintiff that her interests may be disregarded if she did not bring a claim. The case is another melancholy reminder of the importance of practitioners being aware of the purposes of notification requirements and adhering to them.
I will cite the evidence in the proceedings, as I already have, by reference to the Court Book (Court Book or CB) and transcript pages (T). The plaintiff provided opening written submissions on 25 September 2024 (POS) and Mr Gunning of counsel provided an outline of written submissions for the defendant filed on 2 October 2024 on (DOS). During the hearing, each of the plaintiff and Mr Gunning made oral submissions.
Prior to addressing the parties’ submissions in the matter, it is relevant to set out some basic details regarding the parties’ relationship with the deceased and the deceased’s estate, and to contextualise the circumstances in which the application has been made, which in substance has led to a separate determination of the extension of time issue.
The deceased married Miriam de Boer on 22 January 1982. They lived in the Kyogle area. Seemingly, shortly after the plaintiff’s birth, when Hannah was aged two, Miriam and the two children fled to New Zealand, Miriam’s country of birth, [4] after Miriam had allegedly been beaten by the deceased. [5] There is some material suggestive that the deceased followed them to New Zealand and that he was deported from New Zealand in 1989 following repeated violations of AVOs. [6] Seemingly in or about 1995, Miriam married Grant Kokich and they separated in or about 1999. [7] Miriam (still known by the surname Kokich) [8] has or had another child Felice. [9]
The plaintiff has a daughter, Ava Juliana Walsh, born in or about 2010 [10] (now aged 15).
The deceased was one of three children of Alfred and Olwyn Pethers. His siblings, being the defendant, was born in July 1953 (now 71) and their sister Bronwyn, born in December 1955 (now 69). Alfred died in February 2004. Since approximately 1999, the defendant has been in a de facto relationship with a partner Marilyn Grills (Marilyn). [11]
According to an inventory of property attached to the letters of administration, the deceased as at the date of his death had the following property:
“The Glen” (see further below) $850,000;
Machinery $8,970;
Cattle (adult and calves) $54,600;
Commonwealth Bank dividends $1,108.80;
Commonwealth Bank shares $4,390.32;
Nissan Ute $300;
Colonial SuperLink Superannuation amount $1,216.66;
Total $911,615.78. [12]
The value of “The Glen” diminished in years immediately following the deceased’s death. On 19 September 2012 in Hannah’s proceedings, the defendant deposed it had an appraised value of $655,000 [13] and by 19 July 2013, deposed [14] that it had further dropped in value to $550,000. [15] Then, after having regard to various costs and expenses, the defendant indicated that the estate had a gross value of $648,113.87 and a net value of $520,340.39. [16]
The small amount of superannuation with Colonial (approximately $1,216), whilst included as an asset of the estate by the defendant, was in fact paid by Colonial as a death benefit equally to both the plaintiff and to Hannah (thus they each received approximately $608). [17]
On 24 April 2024, the plaintiff caused to be e-filed with the Court a summons and two attached documents, being an “Application for Family Provisions Claims Out of Time” and an affidavit of the plaintiff. All three documents were prepared on 18 April 2024.
The summons under the heading “Type of Claim” identifies three claims being “Family Provision Claim”, “Application out of time” and “Application for s 62 interim provisional order”. [18] On the following page, the relief claimed is described as being “A Family Provisions Claim against the estate of the late Kenneth Alfred Peters” and “An interim Family Provisions Claim to the amount of $30,000 Australian dollars from the Defendant Gregory William Peters, to facilitate the employment of legal counsel for the Plaintiff”. [19] The “Application for Family Provisions claim out of time” document sets out, over two pages, 13 paragraphs which address a number of formal matters relating to herself and the deceased, probate and Hannah’s claim. Relevantly, the document contains the following paragraphs:
…
- This application is made out of time.
- I believe that the testamentary intentions of the deceased were that I was provided for; and until recently I held the expectation that my father’s wishes would be executed willingly by my father’s brother, Greg.
- I am a biological child of the deceased, and an eligible person by the meaning of s57(1) (c) of the Succession Act 2006.
- Adequate provisions for my proper maintenance, education, and advancement in life, have not been made.
- I request that the court would consider making a monetary allocation by s62(1) of the Succession Act 2006 for an interim family provision order, to facilitate the employment of legal counsel for myself, the applicant.
- From there I would wish to pursue a Family Provisions Claim with Legal Representation.
- The defendant currently resides in the home of a farm property previously owned by my father.
It is relatively rare in family provision applications for a decision to be made on the issue of an application for extension of time other than at the final hearing of proceedings. In seeking to understand the context in which I was being asked to make a determination of the plaintiff’s claim other than on a final hearing, I engaged the plaintiff and Mr Gunning in discussion about the issue. It is clear from that discussion that Mr Gunning on 19 September 2024 requested the Registrar to have the plaintiff’s application for an extension of time be dealt with as a preliminary matter. He informs me, and I have no reason to doubt, that he resisted a suggestion that the plaintiff’s application for interim provision also be dealt with at the same time and indicates (and again I have no reason to doubt) that the Registrar accepted his position in relation to that.
Although the wording of the order by the Registrar listing the application for hearing before me is not phrased as a separate determination of a question in the proceeding, I consider that it bore that character and after discussion with the parties, I expressly made a notation that they were proceeding on the basis that under the order made by the Registrar on 19 September 2024, the plaintiff’s application pursuant to s 58(2) was listed before me as a question to be determined separately before the final hearing of the matter pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
Ultimately, the question of whether a separate determination is appropriate is a case management decision having regard to all the circumstances of the case: e.g. Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 at [113]. Indeed, such a course was taken in Choras v Farmakidis [2020] NSWSC 367 (Choras) by Parker J.
On the hearing of the application, the plaintiff appeared self-represented, and Mr Gunning appeared for the defendant. The plaintiff, unsurprisingly, was not familiar with the Court’s processes.
The role of the Court in dealing with self-represented litigants is explained in a number of Court of Appeal decisions, including Hamod v New South Wales [2011] NSWCA 375 at [309]-[316], Bauskis v Liew [2013] NSWCA 297 at [67]-[70] and most recently in Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [37]. I explained to the plaintiff (consistent with the Court’s obligation to ensure a fair trial for all parties) that I could give her information about the practice and procedure of the Court sufficient to ensure a fair trial but could not give her advice as to how her rights should be exercised.
In my estimation, the plaintiff was well able to conduct the hearing on her own behalf. Her responses to a number of questions about what she proposed to do in respect of various stages of the hearing suggested to me that she well understood my explanations regarding the practice and procedure of the Court. Indeed, she was able to argue objections as to evidence and had evidently prepared detailed notes from which she read in making oral submissions.
Further, the plaintiff was well across the materials in the Court Book that had been previously directed to be provided to her, which had been substantially prepared by the defendant. She identified two particular pages within the Court Book that (inexplicably) had, in a cropping process, deleted particular paragraphs from one of her affidavits and an annexure to her affidavit. In reference to the material on the court file, I arranged for my tipstaff to copy those two pages (CB 7 and 16) and had the complete versions of those pages substituted in the Court Book.
The plaintiff relied on affidavits of herself sworn on 18 April 2024, 2 September 2024 and an affidavit in reply affirmed on 27 August 2024. The defendant relied upon affidavits of himself sworn on 22 August 2024 and 4 October 2024. [20] As mentioned above, both parties provided outlines of submissions, POS and DOS.
The defendant arranged to be included in the Court Book a copy of the court file of Hannah’s proceedings (CB 116-429) which was marked as exhibit A-1 without objection.
The plaintiff in correspondence to my Associate prior to the hearing had requested that the “probate file” (more precisely, the file opened upon the s 8 Succession Act application in relation to the deceased’s Will (s 8 proceedings), which I will refer to as the grant file) be made available. Through my staff, I arranged for the grant file to be available in court.
On enquiry from the plaintiff, as she did not seek to have the grant file put into evidence, I sought to understand the relevance of the grant file. The asserted relevance related to two probate caveats that had been lodged in the s 8 proceedings.
The first caveat lodged on 29 September 2011 was in the names of both the plaintiff and Hannah. [21] The second had been lodged on 16 March 2012 only in the name of Hannah. [22] The plaintiff had not been able to inspect the grant file. Appearing by AVL as she did, self-evidently there was no opportunity for her to inspect the grant file on the hearing. She indicated that she did not “fully understand the way in which the caveat was removed”. [23] Generally, a caveat under Division 10 of the Probate Rules takes effect when it is filed and, unless the Court otherwise orders, lapses after 6 months. [24]
I briefly examined the grant file. I will refer to the caveats below in outlining the relevant background, including the context in which the s 8 proceedings were determined before White J.
Ultimately, following discussion with the plaintiff and Mr Gunning, I made a notation that the plaintiff did not seek to put the grant file into evidence but she requested that the file be available for me to inspect as the Judge hearing the matter, and that Mr Gunning was prepared to proceed on that basis.
The plaintiff did not seek to cross-examine the defendant on his affidavits and Mr Gunning did not seek to cross-examine the plaintiff.
Generally, cross-examination is a valuable tool for assisting the Court in fact-finding. Some of the advantages of cross-examination in certain instances include eliciting material enabling the Court to contextualise events that have occurred, which are otherwise expressed in bland statements in affidavits, and also in some instances to understand reasons underlying decisions for why certain choices have been made or actions carried out or conversely reasons for inaction.
Parties are not compelled to engage in cross-examination. It cannot be known what material might have been elicited in cross-examination. Nonetheless, in this case, the absence of cross-examination potentially left the Court without the benefit of some contextualisation bearing upon events and the decisions of the parties over the last decade, beyond statements in affidavit unadorned by context.
“The Glen” is a beef cattle farm located on the outskirts of Woodenbong in North New South Wales near the Queensland border. It is a property that has been in the Pethers family for decades and is described by the defendant as a third-generation family property. [26]
On 10 December 1999, “The Glen” was transferred to the deceased by his parents. The defendant indicated that the deceased received all of his parents’ cattle and farm machinery. [27] From the time the deceased took over ownership of “The Glen”, the property fell into disrepair seemingly through poor management and little or no maintenance. [28] The defendant indicated that the deceased had for a long period of time suffered from depression and mood swings. [29]
During the last twelve months of the deceased’s life, his major preoccupation was with the threat of bankruptcy and, according to the defendant, the deceased did not want to comprehend the eventual outcome. [30]
In or about early 2010, Rural Bank Limited claimed a debt against the deceased. The details of that are not clear from the evidence. However, in any event the bank arranged for the issue of a bankruptcy notice.
On 27 April 2010, the deceased committed an act of bankruptcy. [31]
On 24 October 2010, the deceased was admitted to the Mental Health Unit at Lismore Base Hospital in circumstances where he was “hostile, intimidating and living in squalor”. [32] On 25 November 2011, approximately a month later, he was discharged home. [33]
On 21 December 2010, a sequestration order was made against the deceased’s estate and Hugh Charles Thomas was appointed as trustee of the deceased’s bankrupt estate. [34]
The trustee in bankruptcy sold “The Risk” property. The defendant deposes that the entire proceeds of sale from the property were received by the trustee in bankruptcy and utilised by the trustee in management and finalisation of the bankruptcy.
On 5 January 2011 (barely a few weeks after the bankruptcy), the deceased prepared two documents.
One document is a handwritten letter to the defendant in which the deceased refers to his depression and on one view foreshadows his then imminent suicide. [35]
The second document is a type of holographic Will [36] written on cardboard on the back of what appears to have been part of a container for an animal vaccine. [37] The content of the document is set out later in this judgment.
Between 28 February 2011 and 1 March 2011, the deceased died by his own hand.
On 3 March 2011, when becoming aware of her father’s death, the plaintiff states that she struggled to cope emotionally and made “the heartbreaking decision” to drop out of study, in a context, it appears, where she was in financial straits, attempting to raise Ava, meet costs of day care, could no longer afford to keep her car on the road, and struggling to put “food on the table and formula in the cupboard”. [38]
The defendant, who had worked on “The Glen” up until 1974, [39] did not return to “The Glen” until he took steps following the deceased’s death in trying to work with the trustee in bankruptcy to avoid the sale of “The Glen”. [40] With Bronwyn and other family members, he set about trying to clean up and maintain the property. [41]
On 14 July 2011, Sandra Binney (Ms Binney) first made contact with the plaintiff confirming that she acted for the defendant and outlining the defendant’s intentions in relation to applying for probate of the informal Will document and to give the plaintiff an opportunity to obtain advice in relation to the matter. [42] The letter was sent to the plaintiff by email and also at a post office box address.
On 19 July 2011, the plaintiff by email communicated with Ms Binney providing her with her physical and postal address, being the location in Whangarei, New Zealand. [43]
On 29 September 2011, Julian Peters, a consultant at Thomsons Lawyers (Thomsons), lodged an initial “probate” caveat in the joint names of the plaintiff and Hannah.
On 4 October 2011, Mr Peters sent to Ms Binney, though marked to the attention of Ms Hellyar (a legal assistant), a letter informing her that they acted for the plaintiff and Hannah, enclosing a copy of the caveat and requesting details regarding the estate. [44]
On 18 November 2011, Ms Binney sent to Thomsons a number of documents including the “summons for probate”. [45]
On 25 November 2011, Ms Binney received a call from Mr Peters in which he advised that they could no longer act, and they had forwarded their file to Walter McCallum (Mr McCallum) of Aitken Lawyers. [46]
On 15 December 2011, Mr McCallum communicated with Ms Binney stating that they were still attempting to confirm instructions to act for both the plaintiff and Hannah and requested that she refrain from filing the probate summons for a period. [47]
On or about 19 December 2011, Mr McCallum sent to the plaintiff and Hannah a letter, which she received, and which contains the following paragraph: [48]
- I wish to remind you that there is a strict deadline for the commencement of Family Provisions Act claims and that is 12 months from the date of death. This means that you must file your claim for family provision by no later than 27 February 2012. If you do not do this, it will be almost impossible for you to make a claim after that date as the Court is now very strict and the chances of getting an extension are negligible.
Further, on 19 December 2011, Ms Binney emailed Mr McCallum indicating that the summons for probate had been forwarded to Sydney Agents for filing. [49]
On 22 December 2011, the defendant (as plaintiff) filed a summons seeking a grant of probate to him of that document relying on the provisions of s 8 of the Succession Act.
On 10 January 2012, the Probate Registrar sent a requisition to Ms Binney. [50]
On 24 February 2012, a solicitor Eric Butler of Butlers Will Dispute Lawyers (Butlers) filed a summons commencing Hannah’s proceedings. It will be necessary to make reference to the context in which that application was brought and in particular the plaintiff’s connection with or awareness of the proceedings. It suffices to say that ultimately Hannah’s proceedings progressed towards a hearing which was due to commence before Hallen J on 1 August 2013.
On 27 February 2012, Lucy McPherson of Butlers, on behalf of Hannah, lodged a second “probate” caveat (the initial caveat would have expired by 29 March 2012 unless another caveat was lodged).
On 29 February 2012, Mr Peters sent an email to Ms Binney (Mr Peters then being a special counsel of Aitken Lawyers) indicating as follows: [51]
Dear Kerryn.
Walter MacCallum is away from the office till Late next month and we have been advised this morning by Hanna Pethers that she has applied to renew her caveat separately with another solicitor along with a family provisions claim.
Obviously in these circumstances we can no longer act for Hanna Pethers and as we have no current instructions from Jo Ellen Pethers it would appear that we will not be acting for her as well.
We suggest that you or your client contact Hanna and Jo Ellen Pethers direct to find out who is to represent them.
Regards
Dear Jo EIIen,
RE: ESTATE OF THE LATE KENNETH ALFRED PETHERS
We refer to your late father’s estate.
We have been advised by Aiten (sic) Lawyers Pty Ltd that they have not received any current instructions from you with respect to your late father’s estate. Can you kindly advise our office who is currently representing you as we need to have urgent discussions with your legal representatives regarding the settlement of Requisitions issued by the Supreme Court.
Alternatively if you do not have current legal representation we invite you to contact our Sandra Binney directly to discuss the matter.
We have also written to your sister Hannah sending similar correspondence.
hi thanks for your email, i dont know what it is you wish to advise. I am very unclear as to what is happening anymore as have come to a disagreement with Hannah. last i heard she was ringing the lawyers in sydney passing on instruction on my behalf and making issues more complicated than they needed to be. I was then told by hannah that walter mccallum was no longer acting for her and assumed this meant he was no longer acting for myself. i was also told by hannah that she had requested that my name be lifted from a caveat already filed. feel very fed up by this process and dont know why it has been allowed to remain unresolved for so long.
the address in attachment is for my mother, if you wish to contact me i am [in Whangarei]
Dear Jo Ellen,
Thank you for your email. Walter McCallum’s firm did indicate that they had not received instructions from you, not that he was no longer acting for you. Should you wish you are at liberty to contact Walter McCallum’s firm.
The present position is that as a result of the Caveat which has been filed on behalf of yourself and Hannah we are unable to proceed any further with the Probate matter. We were hopeful that the issue could be resolved amicably. We encourage you to speak with McCallum’s firm or another Solicitor should you wish to allow this aspect to be resolved.
At this time we have had no response from Hannah to our correspondence and also encourage you to speak with her.
Regards
On 16 March 2012, for reasons not entirely clear, Lucy McPherson on behalf of Hannah lodged a third “probate” caveat.
On 29 March 2012, Ms Binney sent by email and also by post, a letter to the plaintiff (and also to Mr McCallum, who it will be recalled that as at 29 February 2012 had no current instructions from the plaintiff) [55] enclosing copies of Hannah’s summons, Notice of Eligible Persons and the affidavit of Lucy McPherson. [56]
On 24 April 2012, Ms Binney sent by letter to the plaintiff copies of the same documents as well as a form of consent order and covering letter advising that the matter had been adjourned to 29 May 2012. [57]
In or about April 2012, there was apparently a mediation that took place, and the plaintiff indicates that the defendant contacted her to let her know that Hannah had been awarded a settlement. [58] It is not clear to me what that means. It was not elucidated on the hearing.
On 8 May 2012, Ms Binney’s office received correspondence from Butlers indicating that they were no longer acting on behalf of Hannah. [59]
On 10 May 2012, Butlers filed a Notice of Intention to file Notice of Ceasing to Act for Hannah [60] in Hannah’s proceedings. On 31 May 2012, Lucy McPherson on behalf of Butlers filed a Notice of Ceasing to Act for Hannah. [61]
On or shortly after 22 May 2012, Ms Binney received from the plaintiff a document headed “affidavit”. [62]
The content of the affidavit [63] is as follows:
- I am writing in respect of the grant of probate requested by Greg Pethers and defended by Hannah Pethers. I have chosen to remove myself from Court Proceedings in regards to the Estate of Kenneth Alfred Pethers the reason for this being that I do not wish to bring added stress upon myself and secondarily onto my daughter. It is my belief that the words written in the last will and testament by my father are a direct reflection of his wishes for what was left of the estate.
- In an ideal world I would prefer that these matters were resolved in a legal manner outside the court but ultimately I will find relief in a resolution regardless of how the outcome is reached. Since being notified of the application for the grant of probate I have spoken to a lawyer (whom was contacted by Hannah), about possible options for proceedings and following that I have also contacted Greg directly. In my opinion the best outcome for everyone could have potentially been reached in a process of negotiation between solicitors acting for Hannah, Greg and Myself.
- My interpretation of Kens will does not exclude Hannah and Myself as recipients of the estate but outlines that the best course of action in the interests of the land would be that any entitlement happen at a later date.
- After speaking with Greg I felt very confident that an agreement of sorts could be reached; although we did not discuss details of what this would entail it seemed to me the logical solution that he would assume a role of primary management of the farm at The Glen. Following this first conversation with [sic] I had with Greg I proceeded to contact Hannah to let her know a discussion had taken place and find out what her opinion was in regards management [sic] of the land and estate in Australia.
5*.* I have found Greg to be very logical and easy to talk with and he seems to have mine and Hannah’s best wishes at heart - he has always been open to communication and has let me know numerous times that he wants nothing more than to work this out with Hannah and Myself. It became apparent at a later date that reaching an agreement by negotiation would not be likely as Hannah had chosen to defend the probate and did not appear to want to discuss a resolution that might allow the farm to stay in family ownership.
- Although Hannah is fully entitled to her own beliefs, in discussion with her I found it impossible to move any closer to a resolution when she so firmly wanted to impose restrictions on the sale of stock from the land at the Glen. I do care for Hannah’s opinion but in the interests of the management of a farm her ideas were not in any way realistic, and there was just no way that that could be immediately implemented in regards to the monetary requirements of feeding excess stock, surveying land to preserve cultural heritage sites that may be been present and establishing a reserve.
- I wish to involve myself in a resolution of this dispute wherever it is possible.
On 19 July 2012, Mr Butler filed a Notice of Ceasing to Act for Hannah in the s 8 proceedings. [64]
On 30 July 2012, there was a hearing of the s 8 proceedings before White J. His Honour was satisfied that the deceased intended the document to form his Will and ordered that letters of administration with the Will annexed be granted to the defendant: Pethers v Pethers; Estate of Pethers [2012] NSWSC 896. [65]
White J at [5]-[9] explained some of the context in which his Honour dealt with the application as follows:
5 There is no appearance by any party to oppose the application. It is clear from the terms of the document itself and the accompanying correspondence that the deceased intended the document to form his will and I will make a declaration pursuant to s 8 of the Succession Act 2006 that the deceased so intended.
6 On 29 September 2011 a caveat against a grant of probate or reseal in respect of the estate was lodged by Hannah Nynke Pethers and Jo Ellen Pethers who are daughters of the deceased. The caveat required that there be no grant until they had had the opportunity to be heard on the question of whether a declaration should be made under s 8 of the Succession Act in respect of the document. The notice was lodged on their behalf by a firm of solicitors, Thomsons Lawyers. A notice pursuant to Pt 78 r 34E of the Supreme Court Rules was served on them at the address of their solicitor, Thomsons Lawyers, whom I am satisfied had authority to accept service on their behalf.
7 On 16 March 2012 a notice of appearance was filed for Hannah Pethers who became a defendant to the proceedings. She was represented by a solicitor, Mr Eric Butler.
8 On 19 July 2012 he filed a notice of ceasing to act. He specified as the last address of the plaintiff known to him an address in Beach Haven, New Zealand.
9 The defendant does not have an address for service in this State. This is irregular, but I am satisfied that notice that the application would be brought on for hearing today has been served on the defendant at the address in New Zealand specified. It also appears that notice of today’s hearing has been given to her by email correspondence. As I have said, there has been no appearance by any other party on today’s application.
On 19 September 2012, the deceased’s estate was estimated as having a gross value of $723,045.06 and a net value of $660,469.03. [67]
The defendant’s then position, working as a farmhand at a station “Karalee Plains”, was expected to conclude at the end of 2013 and he hoped, if he was able to retain “The Glen”, to relocate back to that property full-time and continue to repair and improve the property. [68]
On 4 October 2012, the trustee in bankruptcy finalised the administration of the deceased’s bankrupt estate and produced accounts. [69] The defendant in his updating affidavit stated that he had carried out work on behalf of the estate both at “The Glen” and “The Risk” to prepare the latter property for sale. He deposed to spending time managing “The Glen”. [70] He desired to retain the farming property at “The Glen”, it being in the family for three generations and a property that he grew up on and which he called home. [71] Specifically, he stated that he had no current home of his own and his financial circumstances were limited as set out in a schedule and given his age and uncertain working future, he intended to eventually return and farm “The Glen” property full-time and live on the property as his home. [72]
On 30 November 2012, Ms Binney served Miriam by email with a letter attaching Hannah’s summons and a number of affidavits, but relevantly also a Form of Notice of Claim which was essentially in the prescribed form. [73]
In December 2012, Mr McCallum had corresponded with Hannah and the plaintiff, identifying options for proceeding but (in the plaintiff’s own terms) indicating that he would no longer act for them if they did not have a unified position. [74] Hannah sought alternative legal representation.
From about December 2012, the plaintiff indicates that she was conversing regularly with the defendant over the phone and found him to be reasonable and understanding and was quite upset by the possibility of having the deceased’s property sold. [75]
In Hannah’s proceedings between 31 May 2012 and mid July 2013, it is unclear who was acting for Hannah in her family provision claim. I observe that the coversheet of Hannah’s affidavit dated 3 March 2013 nominates no legal representative as acting, rather Hannah herself is indicated as being the contact person. [76]
On 11 July 2013, Hannah herself appeared before Hallen J on a pre-trial directions listing (with Mr Gunning appearing for the defendant) and his Honour made directions requiring the provision of updating affidavits and an outline of submissions by 24 July 2013. [77]
Seemingly on or about 19 July 2013, barely two weeks before the listed date for Hannah’s proceedings to be heard, Hannah instructed Conrad Peter Curry of Mason Lawyers to act for her. [78]
For the purposes of the hearing before Hallen J, Hannah had on the day of the hearing sworn an updating affidavit setting out her then current financial position. She was then a student with relatively meagre assets offset by liabilities. [79] She made reference to the fact that she was a beneficiary of the Kokich Family Trust, although, she indicated that she had never received any distribution of income from the trust, the only capital in the trust being a parcel of real estate subject to a mortgage, a property on which her mother resided. [80]
Mr Townsend of counsel was then acting for Hannah and Mr Gunning was acting for the defendant. Mr Townsend’s written outline of submissions dated 29 July 2013 [81] made a submission to the effect that:
- Jo Ellen appears to have elected not to make a claim. Had she also made a claim, the Court’s task in balancing the plaintiff’s claim against those of the defendant would be more difficult. But she has not made a claim and it is submitted that the Court should disregard her potential claim by reference to section 61 of the [Succession] Act.
- In answer to paragraph 49 of the Plaintiff’s submission, the Court may (not must) disregard the interests of Jo Ellen Pethers, who has not made an application.
- The Plaintiff submits that the Court should disregard the potential claim of Jo Ellen Pethers.
- The Defendant however submits that the interests of Jo Ellen Pethers should not be disregarded in determining the appropriate order for provision to the Plaintiff, because:
a. in the Deceased’s Will the Deceased expresses a wish that the Defendant make “some such provision” to the Plaintiff and Jo Ellen “at a later date”; and
b. there is evidence from Jo Ellen Pethers, as expressed in her affidavit dated 22 May 2012 which is annexed to the affidavit of Sandra Binney dated 30 July 2013 as annexure C, that she has discussed the issue of further provision with the Defendant and is prepared to negotiate a resolution that is consistent with the Deceased’s wishes expressed in his Will.
Ultimately, on 1 August 2013 on the listing of Hannah’s claim for hearing before Hallen J, the proceedings were settled. The parties prepared Short Minutes of Order which were provided to Hallen J. [82] His Honour made orders in terms of paragraphs 1-5 of the Short Minutes of Order and notations in the form of paragraph 6 and 7 of the Short Minutes of Order. A notation in relation to paragraph 7 of the Short Minutes of Order included a statement (drawn from cl 20 of the then Practice Note) that the parties agreed that the administrator had served notices of the plaintiff’s claim on any person who, in the administrator’s opinion, may be an eligible person. [83]
Under the orders, Hannah was to receive a lump sum of $230,000 to be paid in three tranches, being $150,000 on or before 1 October 2013, $50,000 on or before 1 October 2014 and $30,000 on or before 1 October 2015. That order was conditioned on the basis that if “The Glen” was sold or the sale completed prior to 1 October 2015, the whole of the provision amount would become payable on completion of the sale.
The defendant borrowed $200,000 so he could comply with the family provision order to make the required payments to Hannah.
Somewhat later, the defendant completed administration of the estate. [84] The completion of Hannah’s family provision claim, with the making of the consent orders, was essentially the final act of administration and following the conclusion of her claim, all the remaining assets of the deceased’s estate were distributed to the defendant, including the transfer to him as beneficiary by means of the lodgement of a transmission application on or about 20 or 26 August 2013. [85]
To enable the repayments on the $200,000 loan, the defendant and Marilyn worked in remote locations managing cattle properties north-east of Roma in Queensland. He stated that the work was often hard and very time-consuming, and he regularly worked 7 days a week. The money that he earned over the period of 2014-2024 was utilised to pay down the loan and also to cover for maintenance and other costs of “The Glen”. [86]
There is little material which has been adduced explaining material events in the parties’ lives and decision-making over the past decade. Whilst the Court cannot guess at what relevant events have occurred, it likely would have been assisted by some detail and contextualisation of germane events and significant decision-making of the parties.
Relevantly, since the finalising of the administration of the deceased’s estate, the plaintiff contacted the defendant on two separate occasions to request monetary assistance.
The first occasion was approximately ten years ago (2014), on which occasion the defendant provided to the plaintiff $2,000 she had requested for dental work. [87]
The second was approximately in or about 2016/2017. At that time, the plaintiff and Ava had “a major issue” within a rental property they were staying in. They vacated the property and “essentially became homeless”. It appears that for the next 5 months they were living between houses, including spending most of the time with the plaintiff’s best friend. [88] The plaintiff sought funds from the defendant to purchase a house and he provided her with $40,000 to assist as monies for deposit for the house. [89]
The defendant says he was only able to provide the sum of $40,000 to the plaintiff by drawing down funds on a loan which was available to him at the time. [90] The plaintiff on the other hand recalls it was at a time that the defendant had recently sold a fair amount of stock and was financially in a position to assist her. [91] In any event, the defendant considered this to be a “gift” to the plaintiff. At the time, he felt compelled to provide the funds to her as funds had been provided to Hannah in resolution of her family provision claim. [92]
Significantly, the plaintiff indicates that the payment of the $40,000 “meant that I could purchase a home for Ava and I to live together” and they remain in that home even now. [93]
In around January 2023, the defendant and Marilyn relocated to “The Glen”. He indicates that it requires significant funds to be spent on the property, including for the erection of interior and boundary fences and also substantial renovations of the house. [94]
Seemingly in light of the contact that the plaintiff had with the defendant in 2017, she became aware that he would soon be relocating. However, she states that until late 2023, she was unaware of his contact details or exact whereabouts. She states that on finding out that he had returned to the farm “The Glen”, it was time for her to get in contact with him. [95]
In March 2024, the plaintiff contacted the defendant to talk with him about the estate and “the possibility of making arrangements so that there is an understanding of what provisions will be made for myself and my daughter in the future”. She indicates that the defendant told her “he did not feel he had an obligation to provide anything to me”. [96] The plaintiff states that she raised with him prior statements that he had made on several occasions, following the grant of letters of administration with the Will annexed, that “you deserve at least what your sister got, if not more” to which he responded “well you do, only Hannah got too much”. [97] The plaintiff states that this was the first indication that she had that the defendant did not intend to voluntarily make provisions for her which she would consider “adequate for my maintenance and advancement in life”. [98] It is clear that this conversation was the catalyst for the plaintiff commencing these proceedings. [99]
ONLY WILL & LAST TESTAMENT OF THE SAID KENNETH ALFRED PETHERS BORN 17 MAR 58
I herewith leave & bequeath my entire estate & effects to my elder brother Gregory, to be dealt with as he sees fit. And at a later date for some such provision to be made by him for my daughters not domicile in Australia. Prepared & signed by the above this 5th day of JAN 2011 Ken Pethers
The object of construction of a Will is to give effect to what the Will-maker intended by the words he or she used, having regard to admissible extrinsic evidence: see e.g. De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [50] per White JA (Gleeson JA agreeing at [1]), citing Fell v Fell (1922) 31 CLR 268 at 273-274 per Isaacs J; [1922] HCA 55, and Perrin v Morgan [1943] AC 399 at 406 per Viscount Simon LC and 416 per Lord Thankerton.
The plaintiff in her submissions used Mr Gunning’s prior written submissions in Hannah’s claim to support her claim for leave to bring the application out of time. In particular, she emphasised that Mr Gunning had submitted that there was inadequate provision made to both Hannah and also the plaintiff under the deceased’s Will and that the deceased had entrusted the defendant to make provision for his two daughters at a later date. [101]
In his written submissions, Mr Gunning submitted that the deceased’s Will, insofar as it made reference to the deceased contemplating that “some such provision should be made by the defendant for his daughters”, was not testamentary, had no legal effect and did not create any legal obligation to provide the plaintiff with sums of money or any ongoing legal obligation to do so. [102]
One might think that submission was somewhat at odds with the submission that had been made in the outline of submissions for Hannah’s hearing before Hallen J. I raised with Mr Gunning the question of construction as to whether the expression in the deceased’s Will had any legal effect of creating, for want of a better description, any enforceable obligation to provide for the plaintiff.
Mr Gunning during the course of the hearing was able to refer me to the decision of Young J in Cobcroft v Bruce [2013] NSWSC 774; (2013) 9 ASTLR 397 at [55]-[64]. He submitted that the deceased’s Will did not create any condition on the defendant’s receipt of the deceased’s estate, did not specify any amount of provision or nature of what was to be provided, and accordingly was incapable of being subject to any claim for “specific performance”. He submitted that it was not such as to give rise to an equitable charge or any form of trust. [103]
In some respects, the simplicity of the wording belies the potential construction difficulties.
Certainly, from the plaintiff’s perspective, she appears to have envisaged that there was some obligation to provide her and Hannah with substantial provision.
However, there are at least two reasons which to my mind foreclose the notion that there was an enforceable obligation by the defendant to make any, let alone substantial and potentially ongoing, provision for the plaintiff.
First, I doubt an obligation for provision was created. The words “to be dealt with as he sees fit” closely following gifting of the deceased’s “entire estate & effects” to the defendant emphasise an intention that the property is given to the defendant with essentially an absolute discretion to use it as he desires. They are, in context, not words of obligation. Secondly, alternatively, if I be incorrect and those words coupled with the following words “And at a later date for some such provision to be made by him for my daughters” enliven some form of obligation in the defendant to make provision for the plaintiff, the amount of provision is both unquantified and within his discretion. It cannot be said that there is some minimum threshold of provision that must be provided to the plaintiff. Essentially, even assuming there is an obligation to provide (which I doubt), it is too vague to be enforceable.
Previously, I have drawn attention to the Court being called upon to deal with a family provision application in circumstances where a prior applicant’s application has been determined in the subject of consent orders but without demonstration that an eligible person has been appropriately notified by means of a Notice of Claim: see Jurak v Latham [2023] NSWSC 1318 (Jurak). In Liosatos v Liosatos [2025] NSWSC 44, I outlined the legislative and caselaw history regarding Notices of Claim and the power to disregard claims of non-beneficiary eligible persons, and provided practical guidance to practitioners in addressing notification requirements.
On 29 March 2012, as noted above, Ms Binney sent by email, and also by post, a letter to the plaintiff (and also to Mr McCallum) enclosing Hannah’s summons, Notice of Eligible Persons and the affidavit of Lucy McPherson. [104]
On 24 April 2012, Ms Binney sent by letter to the plaintiff copies of the same documents as well as a form of consent order and covering letter advising that the matter had been adjourned to 29 May 2012. [105]
There is no evidence of the actual form of what was contained in the service of those documents on the plaintiff. However, the description of the document and form of the covering letters strongly indicate that what was served was (relevantly) the form of Notice of Eligible Persons that had been prepared by the plaintiff’s solicitors and not a form of Notice of Claim.
In his initial executor’s affidavit in Hannah’s proceedings (19 September 2012), the defendant acknowledged the plaintiff as an eligible person and asserted that notice had been provided to her of Hannah’s application but stated “no response has been received by Jo Ellen to that request”. [106]
Orders made consequent upon the settlement of Hannah’s proceedings included a notation that “The administrator has served notices of the plaintiff’s claim on any person who, in the administrator’s opinion, may be an eligible person”. [107] The evidence on the current application included what I understood to be the entirety of the Court file in Hannah’s proceedings. [108] There is no suggestion that what was provided within the Court Book was some selective part of the Court file as distinct from the entirety of it. It is evident from an examination of that file that, whilst a form of Notice of Claim was served on Miriam, [109] there is no clear evidence that a Notice of Claim was served on the plaintiff.
When I probed the question regarding whether the plaintiff in this case had been served with a Notice of Claim and made the observation that, whilst there was service on the former spouse, as far as I could tell there was no service on the plaintiff, Mr Gunning surprisingly stated: [110]
I just wonder, therefore, where all this leads? In my submission it leads nowhere. We are dealing with an application for leave to file a claim for provision out of time. We are not here to examine every aspect of the consent orders that were made in favour of Hannah.
There was further interaction on the issue between myself and Mr Gunning which is recorded in the transcript but which, for present purposes there is no need to recount. Ultimately, as I understood him, Mr Gunning was content to proceed on the basis that a Notice of Claim had not been served on the plaintiff. [111] In any event, as will be observed below, I gave the defendant an opportunity after the conclusion of the hearing to adduce any evidence that such a Notice of Claim had been served on the plaintiff. Suffice it to say that no such evidence was adduced.
Notices of Claim serve various purposes: Jurak at [123]. Service of a summons and a Notice of Eligible Persons does not satisfy the purposes of service of a Notice of Claim: Jurak at [123]-[125].
In relation to one of the purposes served by a form of Notice of Claim, I am satisfied that, independently, there is evidence that it was drawn to the plaintiff’s attention and that there was a strict deadline for the commencement of family provision claims. I find that the plaintiff was at least as at 19 December 2011 aware that there was a strict time period for bringing a family provision claim.
However, another core purpose underlying service of Notices of Claim is to avoid the very risk that has materialised in this case, which is that an eligible person, not having been informed of the fact that the Court will disregard their interests if they do not make a claim, subsequently brings a claim out of time. [112]
It may be noted that in this case, the focus is upon steps taken by practitioners in 2013 regarding service of Notices of Claim. Since that time, there have been many occasions in which practitioners have been reminded by the Court regarding the purposes of notification requirements. Nonetheless, the circumstances of this case provide a salient reminder of problems that can arise if notification requirements are not adhered to, and I take the opportunity to encourage practitioners to familiarise themselves with notification requirements to avoid potential injustices.
Mr Gunning submitted that the provisions of s 63(3) of the Succession Act precluded the making of any family provision order when read with s 93 as the deceased’s estate “has been distributed, and there is no actual notional estate remaining”. [113]
Prima facie, a family provision order may not be made in relation to property of an estate that has been distributed by a legal representative in compliance with the requirements of s 93 of the Succession Act: s 63(3) Succession Act. That is qualified such that a family provision order may be made in relation to property that has been distributed if it is designated as notional estate by an order under Part 3.3 of the Succession Act: s 63(3), (5) Succession Act.
The Court has power to make an order designating property as notional estate if it is satisfied that, as a result of a distribution of the deceased’s estate property (whether or not the subject of the distribution), that property has (relevantly) become held by a person: s 79 Succession Act.
In Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133 (Haertsch), Meagher JA (with whom Macfarlan JA at [1] and Leeming JA at [78] agreed) clarified, for the purposes of s 24 of the Family Provision Act 1982 (NSW) (FPA), the identity of “the person” whose property may be designated as notional estate. His Honour concluded that “the person” is the “person” referred to in s 24(b) of the FPA, by whom property became held as a result of a distribution from the deceased’s estate, observing that there is no basis for reading into the terms of s 24(b) a broader chain of recipient enquiry such as to include relevantly within the meaning of “the person” the legal personal representative of the initial recipient to whom there was a particular and direct distribution. [114] Whilst Haertsch addressed the provisions of s 24 of the FPA, there is no ready reason for thinking that a different construction is warranted pursuant to s 79 of the Succession Act for the purposes of identifying the “person” who is holding property as a result of distribution of the deceased person’s estate.
There are various jurisdictional and discretionary steps that must be satisfied before a Court can make an order designating property as notional estate for the purposes of a family provision order or a costs order. I addressed these in Clayton v Clayton [2023] NSWSC 399 at [607]-[627]. In addition, in circumstances where a family provision application is made out of time or in relation to an estate that has been previously the subject of a family provision order, the Court must not make a notional estate order unless (relevantly) it is satisfied that there are other special circumstances that justify the making of the notional estate order: s 90(1), (2)(b) .
In about 2011, the plaintiff suffered from financial struggles, including difficulty meeting the cost of day care fees for Ava, [116] receiving only a sole parent benefit and struggling to put “food on the table and formula in the cupboard”. [117]
There is no particular clarification as to the plaintiffs’ financial position in 2013 at the time of the hearing of Hannah’s proceedings. There were intimations that Hannah in 2013 was not financially well resourced [118] and at least prior to that time, when the plaintiff was seemingly contemplating some form of legal representation, she was struggling financially and without support from her mother. [119]
Significantly, the plaintiff provided no specific details of her current financial circumstances nor any articulation of specific needs.
The plaintiff included in the summons a claim for interim provision in the amount of $AUD 30,000 to facilitate the appointment of legal counsel for her. [120]
Some evidence was adduced regarding the defendant’s position as at 19 July 2013. He then had a weekly wage of $962, superannuation of approximately $57,445 and approximately $41,296 of other assets. [121]
On the hearing of the application, the defendant set out some details of his current financial circumstances. He holds “The Glen” in his own name. It is unclear whether the loan in respect of the property has been completely paid off or not. He has a small amount of savings from the sale of cattle which he estimates he could have lived on until around February 2025. [122] He drives a 1992 Nissan Patrol that has almost 500,000 km on the odometer. [123] The defendant’s main source of income comes from running capital on “The Glen”. [124] Marilyn is not dependent upon the defendant financially. [125]
Other than running cattle on “The Glen”, the defendant is without current employment. [126]
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo22, “what has been forgotten can rarely be shown”. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.
General policy considerations take one only so far. Specific statutory purposes are usually revealed through legislative provisions of themselves as informed by legislative debate upon proposed Bills. Bills may have been introduced in the context of broader social recognition of problematic issues, sometimes highlighted by the occurrence of tragic events but often by processes of reform either through bodies or institutions which inquire and report on issues, and sometimes through judicial comment spotlighting problems and inviting consideration of legislative change.
Specific purposes underlie the legislative timing for the bringing of family provision claims which are different to those that apply in other areas of the law, in particular, in personal injury claims.
Those purposes are often reviewed and subject to change over time. In New South Wales, in each of the three family provision schemes that have existed, there has been a shift of timing in the limitation provisions. Initially, under the Testator*’*s Family Maintenance and Guardianship of Infants Act 1916 (NSW) (TFM Act), the timing for bringing a family provision claim was a period of 12 months linked to the issue of a grant of probate or administration. [127] Under the FPA, in the overwhelming majority of cases, an 18-months period from the date of the deceased’s death was specified. [128] Currently, under the Succession Act, the prescribed period is 12 months from the date of the deceased’s death.
For the purposes of the Succession Act, some of the context of the legislative decision to change the prescribed limitation period from that which prevailed under the FPA was the subject of comment by the New South Wales Law Reform Commission (LRC), in its Report 110 – Uniform Succession Laws: Family Provision (May 2005) (LRC Report). It is evident that the LRC considered that a particular consideration in the setting of time limits involves balancing a number of interests including, on the one hand, the need for there not to be undue delay in the administration of an estate, with the need, on the other hand, to ensure that those with a genuine claim have sufficient time within which to make it. [129]
In Tanev v Tanevski [2017] NSWSC 1301 at [105]-[116], Parker J recognised and discussed specific parallels between principles addressed in Taylor and family provision claims. His Honour developed this to a degree in Choras at [101]-[109].
One aspect of family provision limitation periods relates to the commencement of any such time-limit. Various jurisdictions have dealt with this differently. In some jurisdictions, timing is commenced with the granting of probate or letters of administration, whereas in others the timing is linked to the date of the deceased’s death. A difficulty with commencement of timing based on a date of grant rather than the date of death is the lack of certainty regarding when a grant might be issued.
The National Committee for Uniform Succession Laws (National Committee), in its paper, Report to the Standing Committee of Attorneys General on Family Provision (Queensland Law Reform Commission, Miscellaneous Paper 28, December 1997) (“MP 28”), recognised a further issue with the unworkability of timing based on a date of grant, in that, in cases where no grant had been issued and estates are informally administered, potentially a family provision claim could be brought at any time in the absence of a triggering date to limit the period. [130] Informal administration is not a rare event. The most frequent occurrence of informal administration is where most property held by the deceased and spouse or partner is co-owned in joint tenancy (for example, real estate and proceeds of bank accounts).
Conceptually, even a date of death might be uncertain, although there are mechanisms within the law that enable courts to determine dates of death. Specifically, in New South Wales, the Court is given a discretionary power to determine a date or time of death (if it be uncertain) that it considers reasonable for the purposes of a relevant provision of the family provision Chapter 3 of the Succession Act. [131]
The National Committee, whilst recognising different durations of time limitation periods in some jurisdictions, considered that a 12-months time limit from the date of death was appropriate, “both in the context of the efficient administration of the estate and from the point of view of certainty on the part of those with an interest in the distribution of the estate”. [132] In New South Wales, the reduction in the duration of the time period (from 18 months to 12 months) was expressly recognised in the Second Reading Speech of the Honourable John Ajaka in the debate on the Succession Amendment (Family Provision) Bill 2008 and 24 September 2008 following the resumed debate from 26 June 2008. [133]
The relative shortness of the time limitation period in family provision claims compared with the lengths of periods in other settings in civil litigation is in part explicable by a heightened legislative purpose in avoiding delay in administration of deceased estates and distribution to beneficiaries and also protecting estates against stale claims. [134]
The rigour of family provision time limits is, in most family provision jurisdictions, attenuated by a power (often described as a discretion) to permit claims to be brought out of time. Within those jurisdictions in which family provision legislation exists, the policy considerations that inform a discretion to extend time recognise the significance of distribution of property being done in a context in which there is a period in which an administrator may call for and actually, or at least presumptively, deal with claims and property shifting from the hands of the administrator through to the hands of the beneficiaries.
The legislative timing for distribution of estates reflects, at least in part, a need to protect administrators and shift the risk of holding property from administrators to beneficiaries. In some family provision jurisdictions, applications for extension must be made before “final” or “full” distribution. [135] The National Committee in MP 28 rejected such a decisive barrier and expressed preference for a position allowing for an extension “at any time”. [136]
The LRC Report provided commentary on draft model provisions as presented to the Standing Committee of Attorneys General in July 2004. [137] The model provisions (based on the Succession Act 1981 (Qld) s 41(8)) did not include a provision specifically requiring that cause be shown before the Court could grant an extension of time. It simply provided for the limitation to apply “unless the court otherwise directs”. [138] The rationale for this was essentially on the basis that “even where the Court is given an unfettered discretion, applicants will generally be required to satisfy the Court that the delay in making the applications ought to be excused”. [139]
Notwithstanding the above, in New South Wales, the Succession Amendment (Family Provision) Bill 2008, specifically premised an extension of time on “sufficient cause” being shown. The Explanatory Note to the Bill does not elucidate the reason for that inclusion. Section 58 of the Succession Act is in the same terms as clause 58 of the Bill, with the exception that at the end of clause 58(2), the words “or the parties to the proceedings consent to the application being made out of time” were added (reflecting a similar provision in s 16(3)(a) of the FPA).
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.
The provisions of s 58(2) of the Succession Act vary from the wording of the FPA in dealing with applications for provision brought outside the prescribed time.
Under the FPA, the prescribed period for making an application for family provision order is 18 months after the death of the deceased: s 16(1)(b) FPA. That is the case unless the Court makes an order abridging the period of time within which to make an application: s 17 FPA.
The discretionary power under the FPA of the Court to permit an application after the prescribed period has expired is exercised “having regard to all the circumstances of the case”, but subject to “sufficient cause being shown for the application not having been made within the prescribed period”: s 16(2), (3)(b) FPA.
The onus lies on the applicant for an extension of time to establish sufficient cause: e.g. Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [86]; Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62 per Tobias JA at [39].
In the formative years of the operation of the FPA, eminent judges within the Equity Division of this Court identified particular factors as being relevant to the determination.
A summary of the principles attending a family provision extension of time application was pithily stated by Brereton J in Taylor v Farrugia [2009] NSWSC 801 (a case dealing with an out of time claim under the FPA) at [14] as follows:
The principles relating to the grants of extensions of time under section 16 are well-established. An applicant for such an extension must demonstrate that he or she has sufficient cause for not having made the application within time - that is to say, within the eighteen month period. So much is mandatory. This requires some explanation for the delay in making the application over that period. Other, discretionary, considerations include any further delay after that eighteen month period, and the sufficiency of any explanation for it; whether the extension of time would occasion prejudice to any beneficiary under the will; whether there is any unconscionable conduct on the part of the applicant (which is essentially concerned with deliberate decisions not to make an application, upon which the executor or a beneficiary has acted to their detriment); and the strength of the applicants case for relief under the Act [Re Guskett [1947] VLR 211; Massie v Laundy (New South Wales Supreme Court, Young J, 7 February 1986, unreported); Fancett v Ware (Supreme Court of New South Wales, Needham J, 3 June 1986, unreported); De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported); Warren v McKnight (1996) 40 NSWLR 390, 394E)]. A mere change of mind on the part of an eligible person, who has decided not to make a claim – even if that change of mind is triggered by the success of a claim of another eligible person, or by another eligible person bringing a claim – is ordinarily not sufficient cause for granting an extension of time [Zirkler v McKinnon [2002] NSWSC 285; Foley v Foley [2008] NSWSC 233].
Cases dealing with the provisions of s 58(2) of the Succession Act have drawn upon the caselaw developed under the FPA in addressing factors relevant to the question of “sufficient cause” and generally in relation to the determination of whether a claim may be permitted to be made out of time.
Statutory construction involves the Court looking at text, context and purpose: See e.g. Interpretation Act 1987 (NSW) s 33; Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock (2023) 111 NSLWR 210; [2023] NSWCA 71 at [3], [25] per Leeming JA (Bell CJ at [1] and Kirk JA at [64] agreeing).
Whilst prior legislation on a similar legal subject may provide context, there is risk in construing new legislation which repeals, replaces or reforms prior legislation dealing with a subject and construing the new legislation by reference to law which developed under the prior legislation: e.g. Samsley v Barnes [1990] NSWCA 161 at 4 per Kirby P.
In a number of decisions, Hallen J set out the applicable legal principles relating to an application for extension of time under s 58(2) of the Succession Act: see e.g. Underwood v Gaudron [2014] NSWSC 1055 at [112]-[129]; Nielsen v Kongspark [2019] NSWSC 1821 at [156]-[176]. I have found those decisions of assistance.
There is guidance from the NSW Court of Appeal in respect of extension of time applications under the Succession Act. There are a number of Court of Appeal decisions which have dealt with appeals from applications permitting or refusing extensions of time. Not all of those appeal decisions discussed the principles at great length. However, there is a relatively detailed exposition of the applicable principles in the decision of Meagher JA in Verzar v Verzar [2014] NSWCA 45; (2014) 12 ASTLR 523 (Verzar).
In particular, Meagher JA stated (relevantly) as follows:
23 The decision to extend time under s 58 is a discretionary one. …..
24 …The sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time.
25 It was not controversial that when determining whether there was “sufficient cause” the matters to be considered included the strength of the respondent’s case for the making of a family provision order, her explanation for why the application was not made within time, whether any beneficiaries whose interests would or might be affected by the making of an order would be prejudiced because of the delay and whether there had been conduct of the applicant or the beneficiaries whose interests might be affected that having regard to its consequences, might justify the grant or refusal of the application to extend time. In Re Dun (Deceased) (1956) 56 SR (NSW) 181, Myers J (at 183) suggested that such conduct by an applicant might include electing to be bound by the will or, knowing of his or her rights, delaying for a long period to make an application or lulling the beneficiaries into a false sense of security so that they order their affairs on the basis that their legacies will not be disturbed, or refrain from requiring a speedy distribution of the estate. A particular prejudice which may have to be considered is that which flows from allowing an out of time application to proceed, if that would or may have the effect of improving the applicant’s position, from that which would have existed if it had been made in a timely way: Durham v Durham at [37], [56], [87] (Tobias JA; Campbell and Young JJA agreeing).
26 The primary judge noted that the matters to which I have referred were ones to which regard is usually had: [102], [105]. He also noted that the appellant’s opposition to the grant of an extension was based on criticism of the respondent’s explanation for her delay and that the appellant had not pointed to “any material prejudice to him or to the existence of any unconscionable conduct” on the part of the respondent: [107].
…
33 There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is “sufficient cause” to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2). The primary judge addressed that question and considered, taking account of the properties left to the appellant on his mother’s death, that the claim was a “meritorious” one: [118]. The appellant does not, as I understand his argument, contend that the primary judge erred in approaching this question in that way; although he takes issue with the conclusion that the claim so assessed was one that should have succeeded.
34 The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant’s position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996). The appellant says that is the position in this case because, considered as at March 2010, he had no assets of any value whereas by the time of the hearing, and following his mother’s death, he had assets, excluding the McCauley Street property, with a combined value of $1,355,000. The primary judge considered this argument but did not regard it as “decisive”: [105], [106]. In my view he is not shown to have erred in so concluding.
35 Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator’s Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA).
Macfarlan JA at [1] and Barrett JA at [60] agreed with Meagher JA.
Leaving aside cases of consent to an extension of time, a number of matters are evident from the decision of Meagher JA regarding the notion of “sufficient cause”.
First, the “sufficient cause” or reason to which s 58(2) is directed is for allowing an application to be made out of time: at [24].
Secondly, the assessment of “sufficient cause” may in each case encompass considerations that extend well beyond simply providing an explanation for delay.
Thirdly, it is evident from the extract cited above at [25] that the particular considerations (strength of an applicant’s case for provision, explanation for delay, prejudice and conduct of relevant parties) that had been highlighted in cases under the FPA are appropriately applicable considerations which may bear upon a decision under s 58(2). Indeed, his Honour drew upon not only caselaw under the FPA but also caselaw under the TFM Act showing similar considerations applicable to applications for extension of time even under the TFM Act, his Honour citing Re T F Dun (Deceased) (1955) 56 SR (NSW) 181 at (183) per Myers J.
The decision of the Court of Appeal in September 2015 in Underwood v Gaudron [2015] NSWCA 269; (2015) 324 ALR 641 (Underwood v Gaudron) did not refer to the Court of Appeal’s decision in Verzar but does not suggest any particular different approach would be taken to that outlined by Meagher JA. The decision in Underwood v Gaudron emphasises that evidence of prejudice may (depending on the facts) be a powerful consideration in any application for an “otherwise order” permitting the claim to be made out of time, particularly when coupled with an incomplete justification for delay. The prejudice included the following. The first respondent had expended the balance of her share of the estate in making modifications to her home for the benefit of her husband who was by then confined to a wheelchair. The second respondent used the bulk of the money she received from the estate in renovating and furnishing her residence and the balance for personal expenditure and general living expenses. She asserted that if an order for provision were made, she would be forced to sell the residence: at [88].
Basten JA at [89] stated:
There was thus clear evidence of prejudice resulting from the delay. That factor, added to the incomplete justification for the delay and lack of notice to the respondents, permitted the Court, unless satisfied on a preliminary consideration of a strong claim for a family provision order, to refuse to “otherwise order” pursuant to s 58(2). On that basis, the application should have been dismissed without a full consideration of the circumstances of the claim.
Macfarlan JA relevantly (on the extension of time issue) agreed with Basten JA (though qualifying the agreement on the analysis of ss 59 and 60 Succession Act) at [91] and Ward JA agreed with Basten JA at [99].
The Court of Appeal decision in August 2016 in Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317 also did not refer to the appeal decision in Verzar but nonetheless does not suggest any different approach to the application of s 58(2).
The Court of Appeal has more recently confirmed that for the purposes of considering extension of time applications, any relevant prejudice to a defendant must be assessed alongside any advantage the delay brings to the applicant as a result of changes to the position of beneficiaries: Haertsch per Meagher JA at [72], [74] (Macfarlan JA at [1] and Leeming JA at [78] agreeing).
Clearly there is a slight shift in emphasis in the wording of the applicable provisions as between the FPA and the Succession Act in respect of applications for extension of time. The wording under the FPA expressly emphasises that the Court is to have regard to all the circumstances of the case but subject to (relevantly) “sufficient cause” being shown for the application not having been made within the prescribed period. The expression “having regard to all the circumstances of the case” does not appear in the provisions the Succession Act. However, I do not propose to dwell upon or venture further remarks on the matter, for two reasons.
First, the decision of the Court of Appeal in Verzar gives appropriate guide to construction of s 58(2).
Secondly, the parties at the hearing of this application did not make any submissions as to the law attending s 58(2) applications, so I have been unaided in consideration of the construction and applicable legal principles.
Whilst it is evident from Verzar that particular considerations (such as strength of an applicant’s case for provision, explanation for delay, prejudice and conduct of relevant parties) can and often do inform the question of whether the Court is satisfied that “sufficient cause” is shown for the application not having been made within the prescribed period, the terms of s 58 do not specify any matters that may be taken into account. To the extent that caselaw has identified a number of matters, they are by no means mandatory or exclusive considerations. Those considerations might in some cases be material in informing the court’s assessment of whether “sufficient cause” is shown but are not necessarily of decisive significance in making a determination.
Essentially, the question of whether to extend time for “sufficient cause” involves the Court making a holistic assessment of whether there is sufficient reason to do so based on the purposes served by family provision time periods as outlined above, in light of such facts, particularly as identified in caselaw, as may be relevant depending upon the circumstances of each particular case.
The plaintiff submits that there is “sufficient cause” for her family provision claim to be permitted to advance for various reasons.
The reasons drawn from the plaintiff’s “application”, [140] her affidavit evidence and submissions included the following:
she was distraught by her father’s death, took a long time to come to terms with it [141] and struggled emotionally; [142]
at the time of her father’s death, she was enduring many personal difficulties consequent upon the breakup of her relationship with her daughter’s father in August 2010 [143] and seemingly had struggles raising her daughter in trying to meet the costs of her day care fees; [144]
being a resident in New Zealand she was not able to access Legal Aid for the purposes of representing herself for a case in Australia. Hannah had limited funds but was able to find a lawyer (Mr McCallum) to act on behalf of both of them on the condition that they shared the same position; [145]
to the extent that she engaged in litigation over her father’s estate, and in particular the s 8 proceedings, she found this complicated and overwhelming; [146]
seemingly she initially had a joint approach with Hannah regarding engagement of legal representation, but they took divergent views leading to an outcome that they were no longer jointly represented and, in particular, whilst Hannah progressed a family provision claim, the plaintiff was not separately represented; [147]
from about December 2012 the plaintiff indicates that she was conversing regularly with the defendant over the phone and found him to be reasonable and understanding and was quite upset by the possibility of having the deceased’s property sold; [148]
regarding the construction of the Will, she believed that some form of (initial) provision and potentially ongoing provision would be made by the defendant for her and she was seemingly encouraged in that belief by the fact that, from her perspective, the defendant appeared to be understanding of her position and on occasions in 2014 and 2016/2017 the defendant did provide her with some financial assistance; [149]
she believed “until recently” that the testamentary intentions of the deceased that she was to be provided for “would be executed willingly” by the defendant; [150]
ultimately, from her perspective she only became aware that the defendant was unlikely to make further provision for her in or about February or early March 2024 and she regarded that as being contrary to the views she formerly held; [151] and
the plaintiff holds the understanding (which, based on the limited evidence before the Court, is likely correct) that she is not an eligible person to make a claim on the defendant’s estate. [152]
Mr Gunning submitted that no sufficient cause had been shown by the plaintiff to justify leave being granted to her to file an application out of time. [159]
He identified a number of reasons to support the submission.
One reason I have already dealt with above is a submission that the deceased’s estate had been administered and distributed and that ultimately no family provision order could be made by reason of the provisions of s 63(3) of the Succession Act as there was no “actual or notional estate remaining”. [160]
The further submissions which Mr Gunning made may be summarised as follows:
the length of the delay is significant; [161]
the plaintiff has not provided an adequate explanation for the delay; [162]
whilst the plaintiff submitted that she had suffered emotional and financial turmoil at the time that a family provision claim should have been lodged and was not able to afford legal counsel, that did not explain why she failed to seek leave to file a claim at any time during the 12 years that followed the expiry of the limitation period; [163]
at the time of Hannah’s proceedings, the plaintiff chose not to pursue a family provision claim and continued to adopt that position until April 2024; [164]
the defendant had no legal obligation to provide for the plaintiff and it is unreasonable for the plaintiff to expect further payments from the defendant beyond that which he had provided for in 2014 and 2016/2017; [165] and
the defendant would be significantly prejudiced by a grant of leave if the plaintiff is permitted to pursue a family provision order out of time. [166]
Ultimately, I am not satisfied that there should be any extension of time for the plaintiff to be permitted to proceed with a belated family provision claim.
Mindful as I am that the question of whether “sufficient cause” involves the Court making a holistic assessment in light of such facts as may be relevant depending upon the circumstances of each particular case, in light of the submissions, I propose to identify by reference to some subheadings, particular matters that I have had regard to in making a determination that I am not satisfied that “sufficient cause” is shown for the application not having been made within that period, such as to permit the plaintiff’s application to proceed.
The plaintiff gives some context to the engagement of Thomsons Lawyers, indicating that hiring legal representation and the idea of having money to pay for consultation was not attainable for her that time. She states that she was struggling emotionally and financially “every single day” and the proposal to lodge a probate caveat was something that Hannah had organised and presented to her. [169] The impression given by the plaintiff is that Hannah was the one out of the two of them who was driving the legal representation, which, at least for a period, the plaintiff cooperated with. [170] The plaintiff in her affidavit evidence went into some detail explaining the divergence of approach to legal proceedings and joint representation as between herself and Hannah. [171] She outlined a number of differences between them. She says Hannah “wanted money now”, whereas she stated that she “wanted nothing more than to have my father’s wishes actioned because I believe this would have been the best course of action for everyone”. [172] She indicates that she was physically ill trying to communicate her view to Hannah. Further, it is clear that she was concerned about the prospect of the farm being sold and also liability for legal costs in circumstances in which she was “living week to week, with no surplus money in my account” and “had no assets, or potential to attain assets, in my name”. [173] She was also concerned about the process of attempting to give joint instructions to lawyers in circumstances where, from her perspective, Hannah was acting very unreasonably and at the time was “one of the most disagreeable people on the planet”. [174]
During part of the s 8 proceedings, the plaintiff had some legal representation. However, that representation appears to have not continued beyond approximately March 2012. In any event, at the time of the commencement of Hannah’s family provision proceedings and thereafter, including for the purposes of the hearing of the s 8 Succession Act application by White J in July 2012 and the pendency and conclusion of Hannah’s family provision claim up to 1 August 2013, the plaintiff was not legally represented. Mr Gunning did not contend otherwise.
The plaintiff states that in early 2012, she had a “document signed and dated by a Justice of the Peace and provided this to Greg’s lawyers to enter the courts”. [175] It is the plaintiff’s May 2012 affidavit. [176] Other than that document, the plaintiff does not give any detailed indication of what she was doing or considering during the pendency of Hannah’s family provision claim. She indicates that she became aware of the outcome and “was devastated to learn that a court hearing had passed with barely a mention of my name”. [177]
The plaintiff disputes the defendant’s assertions in his affidavit that, during the course of Hannah’s family provision proceedings, she (Jo Ellen) “determined to withdraw from any participation in those proceedings”. [178] She indicates that she was “lost and overwhelmed” at the time of Hannah’s proceedings and “frustrated” by Hannah’s actions. [179] It is clear that after the resolution of Hannah’s claim, the plaintiff spoke to the defendant from time to time and he conveyed to her that he had financial struggles due to drought or debt associated with the loan or taxation that had resulted from the type of loan that he had taken out. [180]
Young J was of the view that when looking at sufficient cause one looks at the same factors as were dealt with in cases under the old Act. These included whether the reason for making a late claim was sufficient, whether the beneficiaries under the will would be unacceptably prejudiced if the time were extended and whether there had been any unconscionable conduct on either side which would enter into the equation.
In the present case the Master found that there was no prejudice to the other beneficiaries on account of delay and that finding is not seriously challenged. The Master referred to unconscionable conduct and said:
“Unconscionable conduct in this context, of course, relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate, and has then decided after the limitation period has expired, to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period.”
With all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is here directed towards a deliberate holding off designed to lull the beneficiaries into a false sense of security. There is nothing to suggest anything of that sort in the present case.
Whilst the defendant has contended that the plaintiff has not provided any adequate explanation for her delay in bringing the proceedings and that the delay has caused prejudice, no submission was put that the plaintiff has engaged in any conduct which would be relevantly described as “unconscionable conduct”, which would be a basis for declining the plaintiff’s claim.
Having said that, there is clearly an aspect to the plaintiff’s claim in which she states that she had certain expectations about provision arising from discussions with the defendant. Accordingly, I move directly to considering those matters.
Hannah, in progressing her family provision claim, expressed the belief that the defendant, then living at “The Glen”, would not provide for her what she needed in the future. [181]
From the plaintiff’s perspective, as noted above, she contends that the deceased’s Will expressed an intention that the defendant would, out of what he received from the deceased’s estate, make provision for her. She states that:
she was upset by the possibility of her father’s property being sold; [182]
at the time of “settlement of the estate” (I infer at the conclusion of Hannah’s family provision claim and the distribution of the estate to the defendant), the defendant told her that he wanted to help her and that he “and Marilyn would provide assistance every year if they could”; [183]
she was prepared to wait to receive some future benefit, seemingly encouraged in that belief by the defendant’s apparent understanding of her position, including the provision in 2014 and 2016/2017 to her of some financial assistance; [184] and
she believed “until recently” that the expressed intention of her father in the Will that “at some later date for some such provision to be made” by the defendant for her “would be executed willingly” by the defendant. [185]
Conceptually, from a layman’s point of view, the plaintiff’s belief in that regard is perhaps in part understandable. The absence of cross-examination of either of the parties does not assist in understanding the precise context in which the statements were made. Specifically, the plaintiff was not cross-examined to suggest that her belief was unrealistic.
In the case of equitable estoppel, a representation or promise is sufficiently clear if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely: e.g. Van Dyke v Sidhu [2013] NSWCA 198; (2013) 301 ALR 769 per Barrett JA at [40]. This case is not a case of equitable estoppel. Nonetheless, in the context of a family provision claim, an extension of time application in which the plaintiff has essentially asserted discussions she had with the defendant led her to refrain from taking action to bring a claim, estoppel principles show by way of at least some analogy (imperfect as it is) how such claims have been treated in other areas of law.
Proceeding, as I do, on the basis that it is not strictly necessary for the plaintiff to establish elements that would give rise to any estoppel in order to satisfy the court that there is a “sufficient cause” for her claim to be brought out of time, nonetheless, there are some difficulties with the plaintiff’s belief as being a material consideration strongly favouring any extension of time.
The plaintiff in essence submitted that there was no prejudice to the defendant as “The Glen” is still retained by the defendant in its entirety and the debt he has incurred to pay Hannah’s family provision claim “has been cleared”. [187]
There is at least a type of presumptive prejudice that arises on the expiry of the time limit for bringing family provision applications. In some instances, as recognised by McHugh J in Taylor, it may be the case that what has been forgotten can rarely be shown.
Precisely what, if anything, has been lost in terms of evidence or the quality of evidence was not addressed in the affidavit material.
Further, in a number of cases, and I accept this is one, there is a type of actual prejudice.
Mr Gunning submitted that the defendant would be significantly prejudiced by any leave granted to the plaintiff to pursue her family provision claim out of time. I accept that submission.
The defendant has, over the last decade, worked at “The Glen” and derives his income from such work on the property. The defendant indicates that it has always been his intention to retain “The Glen” and he has worked very hard over the past ten years to try and achieve that goal. [188] I have already indicated that the plaintiff’s belief regarding provision being made for her by the defendant unbounded in time has not, so far as I can discern, been engendered by any specific representation by the defendant.
What can be known regarding the parties’ beliefs is somewhat limited given the decisions not to cross-examine either of the parties.
Nonetheless, it is clear that at least by the time of Hannah’s claim the plaintiff was aware that there was a time period for bringing family provision claims which the Court would not likely extend.
The defendant indicated that he believed [189] that he would not have any significant borrowing capacity to pay any amount to the plaintiff if she was successful in being able to bring a family provision claim. [190] Further, he stated that he simply did not wish to borrow funds and go into debt at his age. [191] Whilst I find it difficult in the absence of cross-examination to make any specific finding of the thought processes of the plaintiff, it seems to me that, at least objectively, the longer the defendant worked upon “The Glen”, and the older he became, it is entirely understandable that he would not now wish to seek to have to borrow to meet a belated claim.
In relation to the prospects or strength of the plaintiff’s family provision claim, strictly speaking, the plaintiff has not made any disclosure of her financial position. She sought to do so on the hearing consequent upon a submission that had been made by Mr Gunning that she had not made such a disclosure. [192] The plaintiff asserted that “I would call myself financially in a very low bracket”. [193] It seems the plaintiff made a choice (whether informed by an understanding of the law or not) on this application not to set out details of her financial circumstances, “reserving” any such evidence for what she thought might be the ultimate hearing of her claim for provision. [194] I indicated to the plaintiff that she was not able to make submissions regarding her financial circumstances in a context in which she had not adduced evidence regarding that. [195] In any event, whilst self-evidently, provision out of the estate is not limited to specific identifiable matters and provision may be given to the plaintiff for advancement in life, the plaintiff has not particularly identified any specific need for provision.
The amount of $40,000 that was provided to the plaintiff in 2016/2017 is at least in size not of the order of the amount of provision that was provided for Hannah. Nonetheless, it enabled the plaintiff to make a deposit on a house which she has been able to purchase and has given her and Ava accommodation in which she continues to live in.
I infer from her evidence that she has at least secure accommodation for herself and her daughter. There is no evidence that that she is at risk of losing that accommodation.
In all the circumstances of the case, I have determined that leave should not be granted to the plaintiff to bring the application out of time.
The appropriate order is accordingly that the plaintiff’s summons be dismissed. I so order.
No particular submissions were made in relation to the costs of the application. Prima facie, the costs should follow the event. I so order.
The orders of the Court are:
Note the agreement of the parties that pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) that the plaintiff’s application pursuant to s 58(2) Succession Act 2006 (NSW) be determined as a question to be determined separately before the final hearing of the summons.
Note the Court determines that the application for the Court to the claim for a family provision order to be made later than 12 months after the date of the death of the deceased be refused.
Order that the summons be dismissed.
Order, subject to any application by either party to order otherwise, such application to be made within 7 days of the delivery of these reasons for judgment, that the plaintiff pay the defendant’s costs of and incidental to the proceedings on the ordinary basis.
**********
Court Book (CB) 194.
CB 323[10].
CB 138[18], 182, 323[10].
CB 182.
CB 175.
CB 138[19] (noted in submissions).
CB 177[22],[24].
CB 114[19], 152[6], 351.
CB 176[18],[21].
CB 29[3],[6].
CB 58[21], see also 38[79].
In fact, rather than a total of $911,615.78 as shown in CB at 264, these numbers total $920,585.78.
CB 258.
Based on an appraisal by Peter McCormack, a licensed auctioneer.
CB 291.
CB 284.
CB 209, 212.
CB 24.
CB 25.
This affidavit was not in the Court Book but was nonetheless read on the hearing without objection: T 8.31-.49.
CB 17, 86.
CB 103.
T 10.43.
Supreme Court Rules Pt 78 r 68(1).
CB 286.
CB 58[22],[23], see also CB 288[13(a)].
CB 220[33].
CB 220[35].
CB 219[30], 220[36].
CB 221[43].
CB 266.
CB 178[40], 194.
CB 194.
CB 266.
CB 9 (a clearer version appears at CB 230).
CB 233.
Pethers v Pethers; Estate of Pethers [2012] NSWSC 896 at [2].
CB 29[4]-30[14].
CB 223[60].
CB 222[46].
CB 222[50]-223[56].
CB 74[3], 78-79.
CB 74[4], 82.
CB 74[7], 85
CB 25[9], 89.
CB 75[10].
CB 92.
CB 43.
CB 93.
CB 94.
CB 95.
CB 96.
CB 98.
CB 99.
CB 95.
CB 61, 76[23], 101, 340[2]-[3], 343.
CB 76[26].
CB 35[53].
CB 365[27].
CB 421.
CB 416.
CB 340[4], 347.
See at CB 100.
CB 165 (reasons for judgment of White J at [8]).
CB 165.
CB 63.
CB 259.
CB 223[57], 224[62].
CB 316-318.
CB 282-283.
CB 287.
CB 288.
CB 349-351.
CB 6.
CB 6[21].
CB 174.
CB 122.
CB 409, 417.
CB 209.
CB 208.
CB 135-147.
CB 120-121.
CB 121 [7(e)].
Defendant’s affidavit of 4 October 2024 at [7].
Defendant’s affidavit of 4 October 2024 at [6]-[7] and annexure GWP1.
CB 58[25]-[27].
CB 57[18]-[19].
CB 37[72]-[75].
CB 57[18],[20].
CB 58[20].
CB 37[76].
CB 58[20].
CB 38[77].
CB 58[27]-[28].
CB 38[79]-[80].
CB 38[82], 48[8].
CB 48[8].
CB 49[9].
CB 38[83], 49[10].
CB 233.
CB 153[13].
CB 114[21]-[23].
T 32.
CB 61, 76 [23], 101, 340[2]-[3], 343.
CB 76[26].
CB 259[23].
CB 121[7(e)] read with CB 118.
CB 116-429.
CB 350-352.
T 27.36-.29.
T 28.40-.45.
T 28.28-.32.
CB 112[6]-113[14].
Haertsch at [30]-[49].
T 36.
CB 29[7].
CB 30[8]-[14].
CB 6[14]-[15]
CB 30[15]-[17].
CB 25.
CB 287[12], 320.
CB 58[30].
CB 58[31].
CB 58[29].
CB 58[29].
CB 58[33] first sentence.
TFM Act s 5.
FPA s 16(1)(b). The Court had an exceptional power under s 17 of the FPA to specify the time period in which case the application for bringing any family provision claim was that specified period: s 16(1)(a).
LRC Report at [2.23].
MP 28 at 35; LRC Report at [2.24].
Succession Act s 97.
MP 28 at 35; LRC Report at [2.26].
New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 September 2008 at 9882.
See e.g. Choras at [103].
LRC Report at [2.26].
MP 28 at 37; LRC Report at [2.27].
LRC Report Preface at [0.3].
LRC Report at [2.28], [2.29].
National Committee for Uniform Succession Laws, Family Provision: Supplementary Report to the Standing Committee of Attorneys General (Queensland Law Reform Commission, Report 58, 2004) (R 58); LRC Report at [2.29]
i.e. “summons”.
CB 5[4],[8]-[11].
CB 29[7].
CB 6[12].
CB 29[7].
CB 6[14]-[15].
CB 6[13].
CB 6[15]-[20].
CB 7[30].
CB 6[21], 7[28].
CB 2[7].
CB 8[32]-[34],[37].
CB 7[29].
CB 7[28].
CB 48[2].
POS 19.
T 44.
T 45.
T 45.
CB 112 DOS [5].
CB 112 DOS [6]-[14], [20].
CB 113 DOS[ 15].
CB 113 DOS [16].
CB 114 DOS [17]-[18].
CB 114 DOS [19].
CB 114 DOS [22]-[23].
CB 114 DOS [24].
CB 7[26].
CB 34[44]-[45].
CB 30[15]-31[2].
CB 31[21]-32[25].
CB 32[25]-33[41].
CB 32[31].
CB 33[41].
CB 33[37]-[40].
CB 6[22].
CB 16 (annexure E which has been placed before annexure D).
CB 7[27].
CB 35[56]-[58].
CB 36[60].
CB 37[70].
CB 179[45].
CB 6[21].
CB 37[68]-[69].
CB 6[21], 7[28].
CB 2[7].
CB 48[8].
CB 53[23]
CB 58[32].
The evidence was limited to a statement of his belief.
CB 59[33].
CB 59[33].
T 43.15-44.7.
T 43.24.
T 43.31-.40.
T 43.26-.28.
[184] - Amended from: "Essentially, the question of “sufficient cause” involves the Court making a holistic assessment in light of such facts as may be relevant depending upon the circumstances of each particular case." to: "Essentially, the question of whether to extend time for “sufficient cause” involves the Court making a holistic assessment of whether there is sufficient reason to do so based on the purposes served by family provision time periods as outlined above, in light of such facts, particularly as identified in caselaw, as may be relevant depending upon the circumstances of each particular case."
Pethers
Pethers [2025] NSWSC 389
(1996) 186 CLR 541
(2020) 104 NSWLR 155
(2011) 80 NSWLR 335
(1922) 31 CLR 268
(2020) 102 NSWLR 386
(2016) 258 CLR 134
(2015) 324 ALR 641
(2013) 301 ALR 769
(1996) 40 NSWLR 390
Thus, I accept the submission that the provisions of the deceased’s Will did not create a legal obligation for the defendant to provide for the plaintiff.
When I addressed this with Mr Gunning, he did not dispute the analysis I have outlined above. [115] This case is not like Haertsch. The distribution of the deceased’s estate was made by the defendant as administrator, to himself as beneficiary and he retains that property or at least retains “The Glen”. The upshot being that conceptually there is no impediment to a designating order being made, subject importantly of course to the necessary statutory requirements being established as referred to above.
The plaintiff indicates both in evidence and submissions that she believed that because of the wording of the Will that “there would be provisions made (believing similar to what my sister was awarded) for myself at a later date”. [153] I have no reason to doubt the plaintiff held such a belief. She was not cross-examined on that belief, the basis for it or the reasonableness of it.
I infer that the plaintiff held a belief that the defendant was in financial difficulty and did not wish to place undue burden upon him by forcing her position for provision. Nonetheless, the plaintiff emphasised that she held the belief that the defendant would make provision for her willingly when he was able. [154]
The plaintiff stressed that, until earlier in 2024, she felt confident that the defendant would willingly provide for her from her father’s estate at a time he was able. [155]
In her oral submissions, the plaintiff emphasised that she was, at the time of the probate proceedings in Hannah’s family provision claim, “engaging amicably to the extent that she could” with the defendant. [156] She stated that the reason she held back from making a claim was that in her discussions with the defendant he conveyed that he was “drowning in debt” and difficulties arising from his loan having to pay Hannah and coping with fires and drought and she was doing her “upmost to be absolutely considerate of his circumstances”. [157] She indicated that it was only at the time that he moved back to “The Glen” that she thought was the right time to raise with him and address provision for her for the future and that was the first time she was rebuffed, namely in March 2024. [158]
I accept that the plaintiff did in a sense choose not to pursue a family provision claim. However, that was at least in a context in which the defendant by his legal representatives had not served on the plaintiff a prescribed form of Notice of Claim.
The plaintiff, by reason of the defendant’s failure to serve the Notice of Claim, was not formally alerted to the risk that her interests would be disregarded if she did not bring a family provision claim within the prescribed period or at least by the time that Hannah’s family provision claim was determined.
Given much of what the plaintiff has outlined in terms of her distraught state on hearing of her father’s death (and no doubt the circumstances in which he took his own life) and the difficulties she endured from her breakup with Ava’s father in August 2010, her feelings of complication and being overwhelmed by the court process are understandable.
However, accepting as I do those matters, there is no particular indication that those difficulties persisted either at the time of the listing of Hannah’s case for hearing or in the period shortly after that. Or if they did persist at that time, there is no indication that they persisted to such intensity or so torpefied the plaintiff in the few years thereafter from taking action to bring a certainty to her claim on the estate or the position of the defendant for both their sakes.
First, as best I can discern from the materials before the Court, the belief that the defendant would make further provision for the plaintiff was not engendered in her by some clear and positive representation by the defendant. The specific matters that the plaintiff appears to rely upon are statements by the defendant to her to the effect that “you deserve at least what your sister got, if not more”, apparently repeated several times, and, when reminded of such statements, a response to the effect “well you do, only Hannah got too much”. [186] To my mind, the statements on which the plaintiff relies bear the character of familial empathetic or supportive comments rather than promises for provision.
Secondly, as best I can gauge, the plaintiff’s belief (that the defendant would make ongoing provision for her) was seemingly uncommunicated by her to the defendant. It is not evident that the defendant realised that the plaintiff held the above-mentioned expectations or could be said to have objectively done so. In particular, there is no indication the plaintiff ever stated to the defendant that she was deliberately holding off bringing any family provision claim based on alleged promises, statements or expectations. Nor is there material suggestive that the defendant knew that. Further, I doubt that he could be said to have objectively known that.
Thirdly, even assuming that the plaintiff was proceeding on the basis that the defendant and Marilyn “would provide assistance every year if they could”, the nature and form of the so-called assistance is entirely vague.
Fourthly, at no stage prior to the commencement of these proceedings did the plaintiff seek to bring clarity to her belief that she would be provided for. Seemingly, she did not ask the defendant for specifics around what his intentions were in terms of an amount and timing of any further future provision.