Spencer v Blyth & Anor

The plaintiff, Spencer, sought provision from the estate of the deceased, Blyth, under the *Family Provision Act 1982* (NSW). The application was made after the estate had already been distributed. The defendants were the executor of the estate and the beneficiaries who had received the distributed assets. The matter came before the Court of Appeal of New South Wales.

The primary legal issue was whether the court had the power to make an order for provision from the estate, given that the estate had been fully distributed and the application was made outside the statutory time limit. This involved considering whether the circumstances of the case warranted an extension of time and whether the concept of "notional estate" could be invoked to recover assets from beneficiaries to satisfy a family provision claim.

The Court of Appeal held that while the court had the power to extend time for making a family provision claim, the plaintiff had failed to demonstrate "special circumstances" justifying such an extension. The court found that the plaintiff's delay in making the application, coupled with the distribution of the estate, meant that granting an extension would cause significant prejudice to the beneficiaries who had received their entitlements in good faith. The court emphasised that a lack of prejudice to the estate itself was not sufficient to justify an extension when the beneficiaries had already been paid.

Consequently, the appeal was dismissed. The orders made by the Court of Appeal included joining the third defendant (a beneficiary) to the proceedings, setting aside an earlier costs order, and substituting new costs orders reflecting the plaintiff's liability for certain costs. The plaintiff was ordered to pay the costs of the third defendant on a party and party basis.