Maher v Maher

In the case of Maher v Maher, the applicants sought an extension of time to apply for family provision from the estate of their deceased father. The father, who passed away in 1975, left his principal land to the applicants' mother for life, followed by the seven youngest children. The applicants, two of the eleven children, had been farming the land for no remuneration and claimed they had ‘special claims’ as able-bodied sons of the deceased. The matter was heard over four days with extensive evidence, and the applicants alleged a promise by their mother to leave them other land in her will if they did not contest their father’s will. However, the mother passed away in 2014, and the other land was left to the youngest seven children.

The legal issues before the court were whether the associate judge erred in conducting more than a preliminary assessment of the applicants’ claims and whether the consideration could extend beyond whether the claims were arguable. Additionally, the court needed to determine if the delay of over 40 years was satisfactorily explained and if the respondents were prejudiced by the effluxion of time and loss of evidence. Relevant cases such as Hughes v National Trustees, Executors & Agency Co of Australasia Ltd, Ansett v Moss, Groser v Equity Trustees Ltd, Harrison, and Brisbane South Regional Health Authority v Taylor were considered in the decision.

The court found that the associate judge did not err in conducting a more than preliminary assessment of the applicants’ claims, as it was necessary to determine whether the applicants had ‘special claims’ as able-bodied sons of the deceased. The court held that the consideration could extend beyond whether the claims were arguable, as it was necessary to assess the strength of the applicants’ claims. The court also found that the delay of over 40 years was not satisfactorily explained, and the respondents were prejudiced by the effluxion of time and loss of evidence. Therefore, the application for an extension of time was dismissed.