The bringing and determination of family provision proceedings is envisaged, by the terms of family provision legislation, as part of the administration of the deceased estate. A principal objective of estate administration law is to ensure the speedy completion of the personal representative’s duties, which are to bring in the deceased’s estate, to pay all debts and to distribute the balance to those entitled under the will or intestacy. The performance of those duties could be impeded if an applicant for family provision were allowed a long time within which to commence proceedings. There are differences between the States and Territories in the approach to this issue, one of which is significant, the others more procedural.
As to the time within which the application must be made, time limits vary from six months to eighteen months. More significant is that in some States the application must be made within the specified period after the death of the deceased but in other States the application must be made within the specified period after the grant of probate or letters of administration. The difference is significant in that personal representatives often decide to administer without taking out a grant, unless circumstances beyond their control, for example the existence of shares in the deceased estate, make it imperative that they show title to estate assets, by way of a grant. Where the personal representatives do not take out a grant, then, in a jurisdiction where an application must be made within a specified period after the grant of probate, an application for family provision may be made at any time. A testator might make a will appointing an only adult child as executor and leaving the child all the estate. The child might decide not to take out probate. A potential applicant for family provision would then be able to defer making an application virtually indefinitely. It may well be that this anomaly persuaded some legislatures to provide that the application for family provision should be made within a specified period after the death of the deceased.
As has already been suggested in Chapter 5, where an estate or substantial property has been justifiably left upon a life interest, there seems to be no reason for refusing to allow the Court to adjourn or defer a family provision application, with respect to property the subject of the life interest, until after the death of the life tenant.
It may well be that ambiguity in the law about whether an estate is distributed when a personal representative assumes trusteeship of an asset is in part a result of the perception that sometimes it might be best to defer resolution of a family provision matter until after the death of the life tenant.
In all States power is given to the Court or a judge to extend the period of time within which the application may be brought, but there are differences in wording; and again the issues raised at the end of the above paragraph may warrant a flexible approach to extensions of time.
Other differences tend to be matters of detail or procedure. It is necessary to quote the legislation in some detail.
6.1 AUSTRALIAN CAPITAL TERRITORY AND NORTHERN TERRITORY
Section 9 of the Family Provision Act in each Territory1 provides:
(1) Subject to subsection [sub-section] (2), an application for an order under section 8 shall be made within a period of twelve months after the date on which administration in respect of the estate of the deceased person has been granted.
(2) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time within which an application may be made under section 8.
(3) An extension of time in pursuance of this section may be granted -
(4) An application for the extension, under this section, of the time within which an application for provision out of the estate of the deceased person may be made under section 8 may not be made after the estate of a deceased person has been lawfully and fully distributed.
(5) An application for provision out of the estate of a deceased person shall, for the purposes of this section, be deemed to have been made on the day upon which the notice of motion or other document instituting the application is filed.
6.2 NEW SOUTH WALES
Subsections 16(1)-(3) of the Family Provision Act 1982 (NSW) provide:
Subsection (4) allows the Court to make an order outside the prescribed period. Subsection (5) makes provision where the date of death of the deceased is uncertain.
Comment
The wording of subsection (3) suggests that the Court cannot allow an extension because it would be more appropriate to determine the application at a later date such as on the death of a life tenant. It can only concern itself with reasons why the applicant failed to make application in time.
Section 17 enables the Court to order that the application be made before the expiration of 18 months after the death of the deceased.
6.3 QUEENSLAND
Section 41(8) of the Succession Act 1981 (Qld) provides:
Unless the Court otherwise directs, no application shall be heard by the Court at the instance of a party claiming the benefit of this Part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the Court may at its discretion hear and determine an application under this Part although a grant has not been made.
Section 44(3) has some effect on this provision:
No action shall lie against the personal representative by reason of the personal representative having distributed any part of the estate if the distribution was properly made by the personal representative after the expiration of 6 months from the death of the deceased and without notice of any application or intended application under section 41(1) or 42 in respect of the estate.
Section 42 is concerned with the variation of Court orders.
Comment
The effect of section 44(3) is to impel potential applicants to commence proceedings, or to advise the personal representative of an intention to commence proceedings, within six months of the death, although the actual proceedings may be brought within nine months after the death. It may reflect a sentiment that six months is a bit short, despite the hope that the administration of a deceased estate should be completed as quickly as possible.
6.4 SOUTH AUSTRALIA
Section 8 of the Inheritance (Family Provision) Act 1972 (SA) provides:
(1) Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
(2) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.
(3) An extension of time granted pursuant to this section may be granted -
(a) upon such conditions as the Court thinks fit; and
(b) whether or not the time for making an application pursuant to subsection (1) of this section has expired.
(4) An application for extension of time pursuant to this section shall be made before the final distribution of the estate.
(5) Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.
(6) Any application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.
(7) Where an application has been made for the benefit of this Act, the Court may, if satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application.
6.5 TASMANIA
Section 11 of the Testator’s Family Maintenance Act 1912 (Tas) provides:
(1) Except as provided by subsection (2) of this section, the Court or judge shall have no jurisdiction to hear any application, or to make any order under this Act, unless the summons hereinbefore mentioned be taken out before or not later than three months after the date of grant of probate of the will of the deceased person, or letters of administration of the estate of the deceased person, as the case may be.
(2) Notwithstanding anything in subsection (1) of this section, upon application being made in that behalf by a person claiming the benefit of this Act, the Court or a judge may, after hearing such of the persons affected or likely to be affected by that application as it or he may think fit, extend the time limited by that subsection for the taking out of a summons for such further period as the Court or judge may think necessary.
(3) The powers conferred on the Court or a judge by subsection (2) of this section may be exercised notwithstanding that the time limited by subsection (1) of this section for the taking out of a summons may have expired (whether that time expired or expires before or after the commencement of this subsection).
(4) An application under subsection (2) of this section shall be made before the final distribution of the estate of the deceased person, and no distribution of any part of the estate made before the making of an application under that subsection shall be disturbed by reason of that application or of any order made thereon or in consequence thereof.
6.6 VICTORIA
Section 99 of the Administration and Probate Act 1958 (Vic) provides:
No application shall be heard by the Court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will or of letters of administration (as the case may be):
Provided that the time for making an application may be extended for a further period by the Court after hearing such of the parties affected as the Court thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall be made before the final distribution of the estate and no distribution of any part of the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon.
Provided further that the time for making an application under this Part shall be extended by a period equal to the period between the commencement of proceedings in an application under Part V and the making of an order by the Court granting or dismissing the application.
6.7 WESTERN AUSTRALIA
Subsections 7(2)and (3) of the Inheritance (Family Dependants Provision) Act 1972 (WA) provide:
(2) No application under subsection (1) of this section shall be heard by the Court unless -
(a) the application is made within six months from the date on which the Administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b) the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
(3) A motion for leave to file out of time may be made at any time notwithstanding that the period specified in paragraph (a) of subsection (2) of this section has expired.
6.8 ISSUES FOR CONSIDERATION
(1) A major issue for consideration is the fixing of a period for the making of a family provision order by reference either to the date of death or the date of grant.
(2) A similar period of time needs to be specified, but one governed by reasonable requirements for the efficient administration of the deceased estate.
(3) Provisions respecting the Court’s power to extend the period for the making of an application need to be rendered consistent.
(4) The question of whether the Court should be empowered to allow an application to be deferred or adjourned until a future specified event, such as the death of a life tenant, is bound up with the question of the Court’s power to extend the period and requires analysis.
(5) The question of whether assumption of trusteeship amounts to a distribution of the estate needs to be addressed.
FOOTNOTES
1. Family Provision Act 1969 (ACT); Family Provision Act 1979 (NT).
