Legal Project Management Plan & Checklist
Purpose of this Guide: Use this fork when the 12-month filing deadline under section 58(2) of the Succession Act 2006 (NSW) has already passed and the plaintiff still wants to bring a family provision claim. Filing late does not automatically end the claim - the Court has a discretion to grant leave to file out of time if the plaintiff can demonstrate 'sufficient cause.' However, the threshold is high and is not satisfied by hardship alone. The plaintiff must explain every day of the delay, show the estate has not been distributed, demonstrate that the beneficiaries will suffer no unconscionable prejudice, and show a strong prima facie case on the merits. This fork documents the leave application process, the evidence required, and the key risk factors.
Jurisdiction: NSW Supreme Court - Equity Division, Family Provision List. Leave application under section 58(2) of the Succession Act 2006 (NSW). The leave application and the substantive family provision claim are typically heard together at a final hearing.
The Process at a Glance: Upon taking instructions, immediately serve the section 93 Notice on the executor (even though the 12-month deadline has passed - the notice still prevents further distributions pending the leave application). Gather evidence to satisfy all four limbs of the 'sufficient cause' test. Plead the leave application as a discrete claim in the Summons. File the leave application and substantive claim together. At the First Directions Hearing, seek orders that the leave and substantive claim be heard together. Verify current guidelines on the official NSW Legislation. Access services via the NSW Courts.
Key Legislation and Case Law: Succession Act 2006 (NSW) s 58(2) (12-month deadline), s 58(2) (court may extend time on 'sufficient cause'). Key cases establishing the sufficient cause test: Re Sherbourne Estate (No 2) (2005) 65 NSWLR 268 - the five factors considered (explanation for delay, prejudice to beneficiaries, unconscionable conduct, estate distribution, strength of case); Singer v Berghouse (1994) 181 CLR 201 - strength of the underlying case is weighed in the leave assessment.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Family Provision Application - Plaintiff (NSW Supreme Court) - Out-of-Time Application - Leave to File Under Section 58 matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for Wills and Estates cases, outlining the standard Contentious Litigation process. Utilize these tracking templates to manage your legal cases efficiently.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Re Sherbourne Estate (No 2) [2005] NSWSC 1224 - Campbell J identified the five factors now treated as the NSW test for 'sufficient cause' under s 58(2): (1) the adequacy of the explanation for the delay; (2) whether the estate has been distributed; (3) unconscionable prejudice to beneficiaries; (4) unconscionable conduct by the plaintiff; and (5) the strength of the underlying case. No single factor is determinative - the court exercises a balancing discretion. Warren v McKnight (1996) 40 NSWLR 390 - confirmed that a very long delay (over 2 years) requires a correspondingly compelling explanation and very strong underlying merits.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.