Miller v Miller (No 2)

Miller was the applicant in a family provision claim brought under the *Inheritance (Family Provision) Act 1972* (SA) against the estate of the deceased, her father. The deceased's will appointed his son, the respondent, as executor and sole beneficiary. The applicant sought provision from the estate, alleging that the deceased had failed to make adequate provision for her proper maintenance, education and advancement in life. The respondent executor, who was also the sole beneficiary, opposed the application. The matter came before the Full Court of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether the applicant's claim for provision from the estate was out of time. The *Inheritance (Family Provision) Act 1972* (SA) stipulated that an application for provision must be made within six months of the grant of probate or letters of administration. In this instance, probate had been granted more than six months prior to the filing of the applicant's summons. The court was therefore required to determine whether there were sufficient grounds to grant an extension of time for the applicant to bring her claim.

The Full Court considered the principles governing extensions of time under the Act, noting that the court has a discretion to extend the time for making an application if it is satisfied that the applicant has a proper and arguable case and that it would be just and proper to grant an extension. The court examined the reasons for the delay in bringing the application, the applicant's prospects of success on the merits of her family provision claim, and the potential prejudice to the respondent and the estate. The court found that while there had been a significant delay, the applicant had demonstrated an arguable case for provision and that the prejudice to the respondent was not so substantial as to outweigh the applicant's need for provision.

The Full Court ordered that the time for the applicant to make her application for provision be extended. The respondent was ordered to pay the applicant's costs of the appeal.