Two NSW Will Contest Lawyers fail to provide evidence
In this will contest there were two issues before the court. One was whether the applicant plaintiff was allowed to obtain further provision out of the estate when his application was about 13 months out of time. The second issue was, if allowed to proceed, was he entitled to further provision. My focus is on the out of time application and whether or not the missing evidence would have made a difference.
Background law relating to applying out of time:
The onus lies on the applicant to establish sufficient cause for being out of time. It will be for the court to determine the strength of the applicant's claim.
The decision of the court to extend time is a discretionary decision. Other than “sufficient cause being shown”, there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.
The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time
The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise:
Sheller JA held that the concept of “unconscionable conduct” referred to above was “directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security”. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.
As well as taking into account the reasonableness of the conduct of the applicant, it will also be necessary to have regard to the history of the proceedings, the conduct of the other parties, the nature of the litigation, and the consequences for the parties of the grant, or refusal, of the application for extension of time, “the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person’s estate”.
In this case:
The following is a summary of what the Judge noted and I have taken the liberty of underlining certain words that I personally think are important in this case;
The Plaintiff’s Summons was filed approximately 2 years and one month after the death of the deceased. Accordingly, it was filed 13 months outside the time prescribed by the Succession Act.
The Plaintiff provided some evidence which goes to explaining his failure to commence proceedings within the time prescribed by theSuccession Act. He stated in an affidavit sworn on 7 July 2015 that he suffered from “chronic depression for which I receive a disability pension.
In a subsequent affidavit, sworn on 14 August 2015, he again referred to his chronic depression, but to this affidavit he annexed a report from his treating psychologist, as well as two reports from his general practitioners. I shall return to the contents of these reports later in these reasons.
The Plaintiff then stated:
"My depression continues to have a significant impact on my daily life and it has an enormous impact on my ability to make decisions. I find that when I am faced with certain situations my depression can cause me to feel overwhelmed and I shut down feeling that everything is becoming too much for me.”
This is a summary of what the judge said.
The Plaintiff gave evidence of having received a number of letters from the Defendant demanding that he vacate the estate property. He says that he was not able to deal with this correspondence and simply “buried his head in the sand”.
Counsel for the Defendant did not object to the Plaintiff’s evidence, or challenge that evidence in cross-examination. Nor was it suggested to the Plaintiff, in cross-examination, that he did not commence proceedings in order to delay having to vacate possession of the Kariong property.
However, the Defendant countered that the Plaintiff’s medical condition had not prevented him from commencing proceedings, in the Guardianship Tribunal, in 2010, in which proceedings he sought a review of the appointment of the Defendant as the deceased’s enduring guardian. Nor did the evidence reveal that his psychological condition prevented him from comprehending that the Defendant, as executrix, desired to sell the Kariong property, a matter about which he told his medical practitioners.
The Plaintiff says that he first sought legal advice in December 2013. He states that he instructed his solicitor“to send a letter to [the Defendant’s] solicitor setting out my wish to buy her share of the property”. He also states that he met with his current solicitors on 17 February 2015 and “instructed them to continue to do whatever could be done to negotiate an outcome with my sister that would allow me to stay in the house or, alternatively, for me to buy the house from my sister.”
Then the judge said this;
"There is no evidence from any solicitor who has acted for the Plaintiff. Accordingly, the Court does not know what advice, if any, was given to the Plaintiff as to rights to commence proceedings seeking a family provision order and when, if at all, such advice was first given. The lack of evidence does not assist the Plaintiff.
Importantly, the Plaintiff does not assert, in any of his affidavits, that he was not told of his right to make a claim for a family provision order by the solicitor first retained by him in December 2013 (which was within the prescribed period for making a claim).
The Plaintiff does not state when his current solicitor gave him advice concerning the making of a family provision claim, although it may be inferred that it was at or about the time the Plaintiff first saw him in mid to late February 2015.
Of course, the proceedings were not commenced until June 2015. The only explanation for the delay in commencing proceedings in the period between February 2015 and June 2015, is that the parties were in negotiations to resolve the threatened proceedings.
The difficulty with accepting, unequivocally, the Plaintiff’s submission about the overall delay in commencing proceedings is the lack of evidence, by the Plaintiff or any solicitor, that the Plaintiff did not commence the proceedings because he was awaiting such negotiations to be completed.
The Defendant did not put on any specific evidence about the prejudice, if any, she has suffered as a result of the Plaintiff not commencing the proceedings within time. In any event, prejudice, alone, is not the relevant touchstone, but it is a factor.
The applicant plaintiff was finally allowed an extension of time and was provided further provision out of the estate. However, it is interesting to note the difficulty the Judge had as he refers to the lack of evidence to help him make the decision. In my opinion, the plaintiff’s application could very easily have been dismissed. Evidence from the plaintiff’s previous solicitor could have been critical to the outcome.
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