Durham v Durham

In *Durham v Durham*, the New South Wales Court of Appeal considered an appeal concerning a family provision claim brought under the *Family Provision Act 1982* (NSW). The appellant, a beneficiary under the deceased's will, sought provision from the estate, but the application was made outside the statutory time limit. The primary dispute revolved around the deceased's estate and the appellant's entitlement to further provision, with the appellant challenging the trial judge's approach to the timing of the claim and the potential detriment to other beneficiaries.

The central legal issues before the Court of Appeal were whether the trial judge erred in considering the appellant's claim as weaker due to its late lodgement and whether it was permissible for the judge to take into account the potential detriment to the appellant's siblings had a redistribution of the estate occurred within the prescribed period. These issues required the court to interpret sections 9 and 16 of the *Family Provision Act 1982* (NSW) in the context of applications made out of time.

The Court of Appeal affirmed the trial judge's reasoning, holding that it was open to the judge to have regard to the fact that the appellant's claim would have been weaker had it been brought and determined within the prescribed period. Furthermore, the court found that the trial judge was entitled to consider the detriment the appellant's siblings would have suffered had there been a redistribution of the estate. The appeal was ultimately dismissed with costs.