Ashhurst v Moss

In the case of Ashhurst v Moss, the plaintiff, an adult daughter of the deceased, sought an extension of time to bring a claim for further provision out of her father's estate. The estate was valued at $8.2 million at the time of the grant of probate in 1982. The deceased's will had left the plaintiff a legacy of $50,000 and directed that his trustees set aside $750,000 in respect of each daughter, holding the net annual income upon protective trusts for the benefit of the daughter and in turn her children and then on the trusts for the residuary estate. The plaintiff argued that the provision made by the deceased was arguably inadequate given her position, needs, and the size of the estate. The application was more than 22 years out of time, raising issues of the sufficiency of the plaintiff's explanation of the delay, and the fact that the plaintiff was not informed of the full contents of the deceased's will, nor aware of the size of the estate.

The legal issues before the court were whether the plaintiff delayed unreasonably after becoming aware of her rights, whether the final distribution of the estate had occurred before the application, and what factors were relevant to the exercise of the court's discretion. The court had to consider the relevant provisions of the Administration and Probate Act 1958, particularly sections 91 and 99, which relate to the extension of time for making an application for further provision and the factors to be considered in exercising the court's discretion.

The court found that the plaintiff's delay was unreasonable given the size of the estate and the clear terms of the will. The court also found that the final distribution of the estate had occurred before the application, which was a significant factor in the exercise of discretion. The court held that the plaintiff's lack of knowledge of the full contents of the will and the size of the estate did not excuse her delay, as she should have sought legal advice earlier. The court declined to exercise its discretion to extend the time for the application, noting that the estate had already been distributed and that the plaintiff had not provided a sufficient explanation for her delay.

The court made no order extending the time for the plaintiff to bring her application for further provision out of the estate. The court held that the plaintiff's delay was unreasonable, and that the factors relevant to the exercise of discretion did not favour an extension of time. The court emphasised the importance of seeking legal advice in a timely manner and the need for applicants to provide a sufficient explanation for any delay in bringing their application.