Application for extension of time refused. Summons dismissed.
Catchwords:
SUCCESSION — Family provision — Extension of time to bring a claim — Deceased died in early 2011, survived (relevantly) by two daughters and the defendant (a brother) leaving an informal holograph testamentary document — From mid-late 2011 the brother and daughters sought and received legal advice regarding estate claims — Initially both daughters were jointly legally represented — In December 2011, informal Will proceedings were commenced and in July 2012 the holograph testamentary document was held to constitute the deceased’s Will — In February 2012, the elder daughter then having separate representation commenced and (in August 2013) settled family provision proceedings — Consent SMO asserted that defendant had served notices of the elder daughter’s claim on any person who may be an eligible person — Settlement approved — Plaintiff aware of her sister’s family provision proceedings, but contrary to assertion had not been served with a Notice of Claim — Plaintiff believes the defendant would subsequently provide for her and she received some ex-gratia provision from the defendant in 2014 and 2016/2017 — In early 2024, the plaintiff’s belief changed and she belatedly commenced a family provision claim — Held in all the circumstances no “sufficient cause” for proceedings to be brought out of time
SUCCESSION — Family provision — Extension of time to bring a claim — Separate determination of issue
SUCCESSION — Family provision — Extension of time to bring a claim — Policy purposes underlying extension of time provisions in family provision claims discussed — Extension principles discussed
EVIDENCE — Cross-examination — Benefits include in certain instances contextualisation of events and understanding of reasons underlying decisions for certain actions and inaction
SUCCESSION — Will construction — holograph Will leaving entire estate to defendant “to be dealt with as he sees fit. And at a later date for some such provision to be made by him for my daughters…” — Finding that Will did not create a legal obligation for the defendant to provide for the plaintiff and alternatively if it created an obligation to provide, it is too vague to be enforceable
SUCCESSION — Family provision — Parties and affected persons — Forms — Notice of Claim — Service of a Summons and a Notice of Eligible Persons does not satisfy the purposes of service of a Notice of Claim — Practitioners encouraged to familiarise themselves with procedural requirements to avoid potential injustices
SUCCESSION — Family provision — Notional estate — Determination of prior family provision claim and distribution of estate does not necessarily preclude property from subsequently being designated as notional estate — Discussion of criteria as to whether property is susceptible to being designated as notional estate
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Pethers v Pethers
Sign in free to access the full text
Details
AGLC
Pethers v Pethers [2025] NSWSC 389
Case
[2025] NSWSC 389
Decision Date
CaseChat Overview and Summary
In the case of Pethers v Pethers, the deceased left an informal holograph testamentary document upon their death in early 2011, which was subsequently held to be their Will. The deceased was survived by two daughters and a brother. The deceased’s Will left their entire estate to the brother with a directive to provide for the daughters at a later date. The deceased’s family sought legal advice in mid-to-late 2011 regarding their estate claims. Both daughters were initially jointly represented but the elder daughter later commenced and settled family provision proceedings in August 2013. The plaintiff, the younger daughter, was aware of her sister’s proceedings but was not served with a Notice of Claim. In early 2024, the plaintiff belatedly commenced a family provision claim.
The court was required to decide whether the plaintiff had sufficient cause to bring her family provision claim out of time. The court also needed to determine whether the deceased’s Will created a legal obligation for the defendant to provide for the plaintiff and, if so, whether that obligation was enforceable. Furthermore, the court had to assess whether the property in question was susceptible to being designated as notional estate.
The court found that there was no sufficient cause for the plaintiff to bring her family provision claim out of time. The court concluded that the deceased’s Will did not create a legal obligation for the defendant to provide for the plaintiff, and if it did, it was too vague to be enforceable. The court noted that the service of a Summons and a Notice of Eligible Persons did not satisfy the purposes of service of a Notice of Claim and practitioners were encouraged to familiarise themselves with procedural requirements to avoid potential injustices. Lastly, the court determined that the distribution of the estate and the determination of a prior family provision claim did not preclude property from subsequently being designated as notional estate.
The court ordered that the plaintiff’s family provision claim be dismissed.