Stojcesvska & Tosevski v Tosevski

The case before the Family Court of Australia involved a dispute between the de facto widow and her infant son, the plaintiffs, and the deceased's brother, the defendant, concerning the deceased's estate. The plaintiffs sought provision from the estate under the Family Provision Act 1969 (Cth) after the statutory period for such claims had expired. They applied for an extension of time to institute their proceedings and argued that the distribution of the deceased's assets before the proceedings were initiated constituted a prescribed transaction, impacting the notional estate. The plaintiffs also contended that the de facto spouse's financial and material contributions during the relationship, along with the health issues of the adult plaintiff and the educational needs of the infant plaintiff, warranted a fair distribution from the estate.

The central legal issues revolved around whether the court could grant an extension of time for the plaintiffs to make their claims, whether the pre-proceedings distribution of the estate constituted a prescribed transaction, and what weight should be given to the various factors in determining a fair distribution of the estate. The court had to consider the statutory provisions governing extensions of time, the interpretation of prescribed transactions under the Family Provision Act, and the discretionary factors relevant to assessing claims under the Act.

In its decision, the court found that while the plaintiffs had not met the criteria for an extension of time under section 23 of the Family Provision Act, the distribution of the estate before the proceedings were initiated could be considered a prescribed transaction. This transaction, however, did not affect the notional estate as it was not made with the intention to defeat or defraud the plaintiffs' claims. The court also acknowledged the significant contributions of the de facto spouse during the relationship, the health issues of the adult plaintiff, and the educational needs of the infant plaintiff. Balancing these factors against the competing claims of the beneficiaries, the court determined that the plaintiffs were entitled to a fair distribution from the estate, reflecting the contributions and needs of the parties involved.

The final orders of the court mandated that the deceased's estate be distributed in a manner that provided for the de facto widow and her infant son, taking into account their respective needs and contributions. The court's decision emphasised the importance of considering all relevant factors when making provisions under the Family Provision Act, even in the absence of an extension of time.