Pethers v Pethers

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.