Haertsch v Whiteway

The appeal concerned a family provision claim brought by an adult child, Ms. Haertsch, against the estate of her deceased father, Mr. Whiteway. The primary judge had made orders designating certain property as notional estate under section 24 of the *Family Provision Act 1982* (NSW) and had extended the time for Ms. Haertsch to bring her claim, despite the significant delay of 12 and a half years. The executor of Mr. Whiteway's estate and the beneficiary of his residuary estate, Ms. Whiteway (who was also the deceased primary beneficiary of Mr. Whiteway's estate), appealed these orders.

The Court of Appeal was required to determine whether the estate of the deceased primary beneficiary, Ms. Whiteway, could be designated as notional estate under section 24 of the *Family Provision Act 1982* (NSW). Additionally, the Court had to consider whether sufficient cause had been shown to extend the time for Ms. Haertsch to commence her proceedings, given the substantial delay and the assurances of testamentary benefit she had received from Ms. Whiteway. The Court also had to assess whether the primary judge had erred in disregarding the prejudice to Ms. Whiteway and her estate when exercising the discretion to extend time.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in designating Ms. Whiteway's estate as notional estate. The Court reasoned that section 24 of the *Family Provision Act 1982* (NSW) was not intended to capture the estate of a deceased beneficiary in the manner ordered by the primary judge. Furthermore, the Court found that the primary judge had failed to give adequate weight to the prejudice suffered by Ms. Whiteway's estate due to the significant delay in commencing proceedings. The Court also dismissed a cross-appeal.

Consequently, the Court of Appeal set aside the orders made by the primary judge and dismissed Ms. Haertsch's amended statement of claim. The Court also made directions regarding the costs of the proceedings in both the primary court and the Court of Appeal.