Extension of time application dismissed – 11 months out of time

timeYesterday, the Supreme Court of Tasmania determined an application for extension of time in a family provision matter.

The case of Nicholas v Tubb [2016] TASSC 53 was an application made by the 4 adult children of the deceased testatrix.

The time to bring the application expired on 27 June 2015 and the originating application was filed on 19 May 2016. This was almost 11 months out of time.

By way of background, the Court outlined the following:

  • The major asset of the estate was the farm property worth approximately $220,000.00
  • The deceased died in April 2014.  Her husband predeceasing her in 2003.
  • The deceased was survived by her 4 children.
  • The deceased made her will in December 2008 and left her farm, associated equipment and a gift of $5,000.00 to Brodi, who was her great-grandchild.  Brodi had spent alot of time on the farm and lived with the deceased from 2012 at which time she said she would leave him the farm because she wanted it to be looked after and kept in the family. This was known to all the children well before her death.
  • The deceased’s children all stopped providing assistance around the farm after the death of their father.
  • The two middle children were left $500.00 each and the residual was left between other two children.
  • In October 2014, the children decided they wanted to seek further provision.
  • The children agreed to have the eldest son be responsible for securing legal advice and bringing the claims.  The eldest son did not contact a solicitor about their claims until August 2015.
  • The other children did not seek progress updates from their brother or progress the matter themselves.
  • The eldest child, who was also nominated as one of the three executors, received from the estate solicitors transfer forms to transfer the farm to Brodi in May 2015.  By the time of the hearing in September 2016, she still had not signed and returned the form.

The Court, dismissing the claim, was not satisfied that there was good reason to defer obtaining legal advice between October 2014 and August 2015.

The Court also noted that Brodi, during the period of delay, had made improvements to the farm property which could not be ignored.

The Court said, at paragraph 33:

Notwithstanding that the first applicant has a viable claim, having regard to the period of delay, the absence of a reasonable explanation for it and the ongoing prejudice suffered by Brodi Nicholas as a result of the delay, I am left unpersuaded that the justice of the case rests with giving the first applicant a favourable exercise of the discretion to extend time.

Whilst clearly the children had relied upon one of them obtaining the requisite advice, the Court wasn’t satisfied that that was good enough reason for a delay.  The Court said that “there was no evidence of any steps taken by the second applicant to keep herself informed of progress and to push the matter ahead” (at paragraph 34). Whilst the second applicant had attributed medical problems to her inability to drive, the Court said that still would not have prevented her from taking an active interest in the progress of the matter and that her failure to take that interest, contributed to the delay and the prejudice that has been suffered by Brodi and WOULD be suffered by him should the application for time be granted (paragraph 34).

You can read the case here.

This case represents a useful reminder that tardiness in seeking legal advice as to your right and subsequently bringing about and progressing that action are not sufficient to obtain an extension; nor is it sufficient to rely upon another to do so.

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