Kalmar v Kalmar

The case of Kalmar v Kalmar involved the plaintiff, Kalmar, who sought to challenge the adequacy of the provisions made for her under the will of her late husband. The dispute was heard in the Supreme Court of New South Wales. Kalmar argued that the will did not make adequate provision for her needs, despite being separated from her husband at the time of his death. The primary legal issue was whether the court should grant an extension of time to Kalmar to bring her proceedings under the Family Provision Act 1982 (NSW), as she had missed the statutory time limit. Additionally, the court had to determine whether the provisions made for Kalmar under the will were adequate, considering her needs and those of other beneficiaries.

The court considered the relevant factors for exercising its discretion to extend the time limit under Section 16 of the Family Provision Act 1982 (NSW). It examined whether Kalmar had a bona fide claim, the length of the delay, the reason for the delay, and whether there was any prejudice to other beneficiaries if the time extension was granted. The court found that Kalmar had a possible cause of action against her solicitor for professional negligence, which might have contributed to the delay. However, it deemed this factor less significant than the potential prejudice to Kalmar if the time extension was not granted. The court granted the extension of time, concluding that Kalmar had a reasonable excuse for the delay and that there was no significant prejudice to the other beneficiaries.

In determining whether the provisions made for Kalmar under the will were adequate, the court considered her needs and the needs of other beneficiaries, as well as the size of the estate. Kalmar was the deceased’s wife and had been separated from him prior to his death. The court found that Kalmar's needs were significant, given her separation from the deceased and the fact that she had not remarried. The needs of other beneficiaries, including children from a previous relationship of the deceased, were also significant. The estate was described as modest, which influenced the court’s assessment of adequacy. Ultimately, the court ordered that adequate provision be made for Kalmar.