My father passed away in January this year in Tasmania from…

Brian, something might still be able to be done if the time limit has passed... but it will be more difficult.. let me know either way... and then I will quote according to the situation. Cheers, James

I will wait to hear what you find out. cheers, James

Hi Brian, I assume the reason you knew nothing about it, is that no-one told you, and that you were not invited to the funeral, you are interstate in Western Australia... so you would not have be able to see or have known to look for any probate advertisement in the paper. How long ago were you told about his passing?

Here is the relevant legislation:

TESTATOR'S FAMILY MAINTENANCE ACT 1912 - SECT 11

11. Time within which application to be made

(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.

I will send you am offer of additional service to talk through the decision you will need to make quickly... as the longer you leave it, the higher the chance everything will be distributed... and it will be too late... you will also need to send me a copy of the Will, and the Probate.. so we understand as much as possible about the estate.

Kind regards, James

Ok, based on what you have advised, in my opinion, I think that you have a legitimate chance at convincing a Court or a judge to grant an extension of time pursuant to s11(2) above... so that you can attempt to reach a settlement with the Beneficiaries of the estate.

If you want to work with me towards this end, the first step is to accept my offer of additional service, and send me the relevant paperwork so we can discuss further.

Cheers, James

Hi Brian, thanks for the update.. I await further new, cheers, James

Brian, do you want to email them to me?

Ok, it is clear what the intention of your father was... however, that does not mean he can write you out of the will without making adequate provision for you both...

It in unclear what assets there are.. but based on the content of the Will, it would appear as if there are definitely assets to pursue, and you should not hesitate to correspond with the Executors, seeking details of the estate, and advising of your pending Family Provision Claim, and your willingness to settle out of Court to avoid an expensive legal contest in the Courts.

Kind Regards, James

Brian, the first step is if you can accept my offer above.. we can then exchange contact details , chat on the phone, and I can confirm the fixed price quote/s for you.. for each of the steps so you can best determine your options. Kind regards, James

Yes, I estimate the letter will take me an hour and cost you approx. $275 plus GST (and the offer can be considered a deposit).

We will also discuss the Court process... I strongly suggest you proceed with this as you do have legal rights, and the longer you leave it... the harder it will be to do anything. Cheers, James

Your right to apply is derived from the following section:

TESTATOR'S FAMILY MAINTENANCE ACT 1912 - SECT 3

3. Claims for maintenance against estate of deceased person

(1) If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit.

When a judge considers your application they MUST take into account the following:

TESTATOR'S FAMILY MAINTENANCE ACT 1912 - SECT 7

7. Court or judge to consider net estate and means of widow or child

In granting or refusing any such application, and in fixing the amount of the provision to be made under this Act for any person who is entitled to make an application under subsection (1) of section three, the Court or judge shall have regard, inter alia, to –

(a) the net value only of the estate of the deceased person, as ascertained by deducting from the gross value thereof all debts, testamentary and funeral expenses, and all other lawful liabilities to which the said estate is subject; and

(b) whether any such person is entitled to independent means, whether secured by any covenant, settlement, transfer, or other provision made by the deceased person during his life or derived from any other source whatsoever.

They will also take into account the reasons your father has stated in his Will... and that you respected your father's wishes to stop contact permanently over a disagreement...

I hope the above helps you decide, I just wanted you to understand the legal basis of your right to make a claim...

Cheers, James