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Seeking Further Provision From An Estate - Out of Time Applications

This article is Part 3 of our series surrounding disputed estates, "A Hero's Journey - The Path of Estate Disputes." To read Part 1, click here. To read Part 2, click here.


a wall of clocks

In the thrilling saga of estate battles, time emerges as both ally and adversary.


Picture this: a valiant claimant, armed with resolve and a worthy cause, stands on the precipice of reclaiming their rightful share from a deceased's estate in Queensland. But alas, they find themselves ensnared by the ticking hands of time, teetering on the brink of a missed opportunity. Fear not, for within the halls of the Queensland Supreme Court lies the power to bend time's rules under the right circumstances.


Explore below the journey through the labyrinth of will contests, where time itself becomes a formidable foe and a coveted prize.

 

Unveiling the Mysteries of Will Challenges


In the enchanted lands of Queensland, challenging a will unfolds as a quest steeped in tradition and law. Only those deemed worthy under the Succession Act 1981 (Qld) can embark on this perilous journey. Eligible champions, spurned by the meagre provisions provided for them in a Will, may wield the mighty Family Provision Application to petition the wise justices of the Supreme Court. Here, amidst a tapestry of financial intricacies and relational dynamics, the claimant’s fate hangs in the balance as the court weighs their plea for justice.

 

Navigating the Sands of Time


The sands of time shift and sway, shaping the destiny of estate claims with unwavering precision. Two ancient scrolls decree the rules of temporal engagement:


  1. The Notice: Within six months of the testator's passing, claimants must dispatch a written notice to the executor, signalling their intent to stake their claim.

  2. Filing the Application Within nine months of the testator's twilight voyage, claimants must etch their plea to the Supreme Court of Queensland by way of an Application. However, the court's gates may swiftly close upon tardy applications, condemning them to the abyss of summary dismissal.

 

Seeking an Extension: A Saga of Legal Valor


Even in the face of being out of time, the Supreme Court holds the key to unlocking the shackles of time and potentially allowing an out of time claimant to continue their FPA.


Factors such as the length of delay, estate distribution, and objections from interested persons weigh heavily in the court's deliberations. A compelling narrative, woven with threads of truth and righteousness, may yet sway the scales of justice in favour of the applicant.

 

The Ever Ongoing Saga of Out of Time Applications (Case Overviews)

 

Mortimer v Lusink [2016] QSC 119


Enter the annals of history, where the tale of Mortimer v Lusink [2016] QSC 119 unfolds like a tapestry of triumph against adversity. In a daring bid to challenge her mother's will, a daughter found herself entangled in the web of time, filing her plea nine days past the appointed hour. Yet in a stunning reversal of fate, the Court of Appeal heeded her call, granting an extension as testament to her unyielding spirit and the righteousness of her cause. Victory, hard-won yet sweet, did in fact see the claimant's rightful share restored, and her honour vindicated.

 

Ultimately, the Court of Appeal made it clear that:

  • The minimal delay was not attributable to the applicant in this matter;

  • The delay had not caused significant prejudice to the other beneficiaries;

  • The financial resources of the appellant were insufficient to meet her needs;

  • The gift to the appellant was inadequate having regard to her financial resources, and

  • The appellant had an arguable claim against the estate in respect to her FPA, not a claim that was clearly unlikely to succeed.

 

The executor was ordered to pay costs of the appeal with Justice Jackson remarking that the executor in fact had no basis for resisting the out-of-time application on the basis of reasonable prospects of success.

 

Budulica V Budulica [2016] Qsc 184 


In this case, the deceased’s daughter sought to bring a Family Provision Application where her brother was the executor.

 

As part of the history of the case, the estate comprised two properties totalling around $2 million, which was to be divided between the two children. 

 

The applicant in this case engaged a solicitor shortly after her mother’s death and was advised of her prospects of success and the time limits of 6 and 9 months set out above. She made a considered decision not to commence her application at first. However, she later changed her mind after receiving correspondence from her brother’s solicitor. She took great offence to the letter with the Judge stating “she is consumed with bitterness and driven by long-standing enmity towards Stan.” She then sought to file her application around 9 months late.

 

The executor objected to the extension, requiring the extension application to be heard by the court. At the hearing of the matter, it was noted that the sister was  in her early 50s, divorced, in poor health, receiving Newstart allowance and receiving financial assistance from her mother in the year prior to her death. Her circumstances were considered bleak.

 

After considering the applicant’s position in life, the judge found that she had some prospects of establishing that proper provision had not in fact been made for her. However, ultimately she failed with her application because the judge found that she had no reasonable prospect of obtaining an order for further provision, when weighing up the circumstances. This was because the executor had offered her first choice of which property to take from the estate.

 

The applicant had elected to take one of the properties worth around $1 million, but which would attract Capital Gains Tax on any sale. The judge also found that she could have taken a different property, worth approximately $1.2 million without any Capital Gains Tax implications. By selling that second property, the applicant would have had sufficient funds for her “proper maintenance and support.” On this basis, she could not expect to achieve a better outcome in an FPA because the secondary property would be sufficient to discharge the duty of the executor.

 

This out of time application failed because the sister had poor prospects of success in her FPA, which this predominant factor weighing heavily against an extension of time.

 

The judge also considered that the sister’s reason for not commencing her application in time did not favour an extension. This decision was later upheld by the Court of Appeal on 28 July 2017.

 

Frastika V Cosgrove [2016] Qsc 312 


The applicant in this case was the deceased’s 24-year-old second wife of about 8 months (in a total relationship period of only 18 months).


The estate was made up of about $1 million, and the applicant were to receive $10,00000 and two motor vehicles. The applicant also stood to receive $150,000.00 from superannuation, which fell outside of the estate. The majority of the deceased’s estate was then given to his disabled granddaughter.

 

Before the death of the first wife, the deceased and his first wife had sole parental responsibility for their granddaughter who required full-time care due to her personal circumstances.

 

Following the passing of the deceased, the applicant in this case and the deceased’s sister were granted full parental responsibility. In time, the granddaughter was placed in foster care.

 

The application was filed 63 days out of time but was not formally served on the respondent for a further 12 months and the supporting affidavit was served later still. The applicant argued that the delay was caused by:

 

  • shock following the deceased’s death;

  • having to leave the family home;

  • concerns about deportation;

  • limited understanding of legal requirements;

  • lack of financial resources, and

  • the need to move interstate to obtain employment.

 

The out-of-time application again failed on the basis of delay, prejudice to the granddaughter, and the applicant’s prospects of success.

 

The judge found that the applicant’s argument of not understanding legal rights lacked cogency and there was no satisfactory explanation of why she did not obtain legal advice within the statutory time period. Her failure to prosecute the application diligently was also noted.

 

The judge also concluded that the deceased’s granddaughter would be prejudiced as it would reduce the funds available for her special purpose trust established by the will, by both legal costs and any further provision for the applicant herself. Additionally, it the applicant was not successful there would be limited chance of recovery of costs from her.

 

Having considered these factors, the judge considered that the deceased had specific regard to the applicant’s needs for further education and set-up costs in Australia. However, when weighing up the overall net asset position of the estate against the provision made under the will for the applicant and the relatively slender length of the relationship, the judge concluded that the applicant would ultimately fail to establish that she had been left without adequate provision. The judge considered that this was reinforced by the granddaughter’s competing claim and interest in the estate.

 

Balancing all these factors, the applicant failed to establish a substantial case for the court to exercise its discretion in her favour to extend time to bring her FPA.

 

Charting Your Course


Armed with wit and wisdom, RHC Solicitors stands ready to guide you through the perilous seas of estate disputes and assist you out of time. Let not the sands of time bar your path to justice, as you may in fact merit to continue an FPA application out of time.


Overall, some lessons that can be extracted from the cases set out above:


  • That it is best to file the FPA and serve it within time if possible;

  • All interested persons need to carefully consider the factors the court will take into account;

  • If you are out of time, it is best not to cause further delay as it will weigh against you in court;

  • Despite negotiating taking place, file the application in time if not outcome has been reached or there are delays with finalising a deal. The court filing fee is cheaper than a contested application for the right to proceed out of time;

  • If you are an executor, ensure you or your solicitor confirms in writing that ongoing negotiations should not be regarded as consent to an FPA proceeding out of time and that timeframes must be strictly observed;

  • Executors should consider the implications of costs to the estate and risks of resisting an out-of-time application if the delay is minimal and the applicant’s prospects of success are in fact good;

  • Being out of time is not perilous if there exists minimal delay, little prejudice to the other beneficiaries and an arguable case against the estate.

 

In the heart of Queensland's estate battles,  having an out of time application may not necessarily be fatal. There are many considerations, and it is important to find a good solicitor able to persuade the court to exercise its discretion and extend the statutory time limit to file an application within 9 months from the date of death of a deceased.



 

Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.


Scott A. Green ©

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