Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 28 March 2020.
David passed away in 2003. He left the whole of his estate to his second wife, Diane. The estate is distributed to Diane shortly thereafter.
When Diane passes away in 2016, her will leaves $100,000 to Penny, a daughter to a previous relationship of David and leaves the rest of her $2 million estate to Diane’s nieces and nephews.
Penny believes she is entitled to more from the estate and seeks legal advice.
Penny is advised that she is not able to make a claim against Diane’s estate because she was never dependent upon her and never lived with her as a member of the same household. The fact that Penny is Diane’s stepdaughter, without establishing dependency is not enough to give her standing to make a claim.
Penny is also advised that the limitation period in which to make a claim against her father’s estate is only 12 months from the date of death and accordingly, that this limitation period expired more than a decade ago.
However, Penny is advised that the Court has the power to extend the limitation period.
The Court finds that there is “sufficient cause” to allow the claim out-of-time because Penny had a “reasonable expectation” to benefit from Diane’s estate and that if Penny had made a claim against her father’s estate during the limitation period, it is likely that she would have been successful.
The Court also finds that there are “special circumstances” which justify clawing-back David’s estate due to his “moral obligation” to provide for Penny.
Ultimately, the Court awards Penny an additional $250,000, to be paid from Diane’s estate in addition to the $100,000 gift she receives under Diane’s will.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
