Feel like you can delay claiming against a Will? Leave it too late and you might miss out

5-May-2020 Estates By Jamal Bakalian

It is often said that “time is of the essence”. In the case of Choras v Farmakidis [2020] NSWSC 367, Mr Choras learnt just how true that expression is in the Family Provision jurisdiction of the Supreme Court of New South Wales’

Will Document

In New South Wales, a Family Provision claim must be made within 12 months of the death of a testator (will maker). While this time can occasionally be extended, granting this extension is a matter for the Court’s discretion and the Plaintiff (the person bringing the claim) must have exceptional reasons as to why their claim was not brought before the 12-month period ended.

A recent 2020 decision of the Supreme Court highlights the importance of making a claim within the 12-month period. Sadly, for Mr Choras, a claimant against his deceased de facto partner’s Estate, he waited too long to make a claim which led to it being dismissed. Read on to find out how you can avoid making that mistake…

Background

The deceased was Ms Sylvia Jasmine Farmakidis; a divorcee with two sons. Following her divorce in 1982, Ms Farmakidis acquired her ex-husband’s share of a property in Maroubra where she continued to live with her sons.

Ms Farmakidis and Mr Choras met in the mid-1980s. At that time, Ms Farmakidis sold the property in Maroubra and used the proceeds to purchase a property at Concord. Ms Farmakidis lived at the Concord property with Mr Choras for almost 25 years until her death in October 2010.

The primary asset of Ms Farmakidis’ estate was the Concord property. The will of Ms Farmakidis’ allowed Mr Choras to live in the property until he died, or decided to move out, at which point her two sons would have possession of the property in equal shares.

Sometime after Ms Farmakidis’ death, Mr Choras and Ms Farmakidis’ now adult sons graciously came to an arrangement which allowed Mr Choras to let the property for 12-month periods. Mr Choras was able to use the funds from the rent of the property as he wished.

As the years passed, Mr Choras found that the Concord property was too big for him and sought funds from the deceased’s estate to enable to him buy elsewhere and downsize. The only way that Mr Choras could access these funds was to sell the Concord house and use these funds to buy a smaller property. The problem for Mr Choras was that his entitlement from the deceased estate did not allow that: his interest in the Concord property was merely a right of residence.

The Claim

Mr Choras commenced proceedings in the Supreme Court under the Family Provision Act 1982 (NSW) in May 2019, some 9 years after the death of Ms Farmakidis.

Mr Choras wanted to claim an entitlement from his deceased partners estate. To do so, he required the Court to grant him an extension in time as it had already been over 9 years since Ms Farmakidis partner had passed away.

The Issue

To determine whether Mr Chroras should be granted an extension of time to bring his claim against his de facto partner’s Estate, the Court considered:

  1. The explanation for the delay;
  2. Whether there was any prejudice arising from the delay; and
  3. The strength of Mr Choras’ claim.

The Court’s Determination

Mr Choras was not granted an extension to claim an entitlement from his deceased partner’s estate.

Reasoning

The explanation given by Mr Choras’ for his delay in bringing proceedings was that at the time of Ms Farmakidis’ death, he had not considered the possibility that the house would become too big and too difficult to maintain. Mr Choras also claimed that he had learnt that an extension may be granted by the Supreme Court at the time of proceedings being filed.

The Court decided that Mr Choras’ explanation was insufficient to warrant the extension being granted.  Firstly, as Mr Choras was already advanced in age at the time of Ms Farmakidis’ passing and that the need or desire to downsize would have arisen earlier. Moreover, the terms of the arrangement between Mr Choras and Ms Farmakidis’ sons had already provided for Mr Choras to downsize: Mr Choras could use the funds from renting out the Concord property to rent a smaller house.

The Court was of the view that Ms Farmakidis’ sons would be prejudiced by Mr Choras’ claim. Prejudice arose where Ms Farmakidis’ sons had already outlaid their own funds in preparing the agreement to allow Mr Choras to rent out the Concord property. Further, Ms Farmakidis’ sons had already graciously relinquished their own entitlement to the Concord property by allowing Mr Choras to continue living in or renting out the property.

In light of the evidence presented in support of the extension, the Court considered Mr Choras’ case to be weak and prejudicial to Ms Farmakidis’ sons. Ultimately, the right of occupation that Mr Choras had already been granted under the Will of his deceased partner was enough to meet his needs and an extension was not required.

The Lesson for everyone

Mr Choras’ story serves as a timely reminder for us all. Although it may feel uncomfortable so close to the passing of a loved one, Family Provision claims require you to be proactive and must be made within a year.

If you are contemplating making a Family Law provision claim, use your time wisely and contact one of the Specialist Estate Solicitors at Streeterlaw on 8197 0105 to seek advice about the best way forward.

 

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Written by Jamal Bakalian

Jamal Bakalian

After studying a double degree in Law and International & Global Studies at Sydney University, Jamal completed her GDLP at the College of Law. She is currently undertaking her Masters of Law (majoring in Commercial Litigation). Jamal has been practicing Law for 5 years. With a passion for resolving disputes, Jamal is a valuable member of the Commercial Litigation team at Streeterlaw.

Call us on 02 8197 0105 to book an appointment with Jamal Bakalian!

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