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  • Writer's pictureJusteen Dormer

Warning to Executors: Out of Time Family Provision Application Allowed by Queensland Court of Appeal

Mortimer v Lusink [2016] QSC 119

In 2015, Loma Green passed away leaving behind a $1.2 million estate in Queensland. Her daughter, represented by Dormers Lawyers, sought a family provision application under section 41 of the Succession Act 1981 (QLD) on the basis that she had been left without adequate provision in her mother’s will. Ms. Green had left her daughter only $20,000, with the majority of her estate left to her son. However, the family provision application was filed 9 days late.

Warning to Executors: Out of Time Family Provision Application Allowed by Queensland Court of Appeal

The delay was a consequence of confusion about the applicable time limit, which is a common occurrence given that they vary across Australian states. In Queensland, a spouse, child or dependent has 6 months from the date of death to give notice of their intention to make a family provision application, and 9 months from the date of death to file documents. In comparison, a person in New South Wales has 12 months to file from the date of death. In this matter, the applicant had been under the misapprehension that the time limit ran from the date of probate rather than the date of death.

The executor of the estate, represented by de Groots Wills and Estate Lawyers, objected to the application proceeding, leaving the Court to decide whether to exercise its discretion to extend time or not. Ultimately, the application was dismissed with the Judge finding that the applicant:

  • Had not established the deceased was mistaken in her assumptions about the applicant’s financial position;

  • Had been ‘emotionally removed’ from the deceased and had no contact with her for over half a century;

  • Had no entitlement to provision from the estate as a right; and

  • Was living in humble but not destitute financial circumstances.

Accordingly, it was not the delay which was the reason for the Court’s decision. Rather, it was that the Judge considered the claim to be ‘clearly unlikely to succeed’ and so granting an extension of time would have been economically wasteful in his view.

Mortimer v Lusink [2017] QCA 1

The applicant appealed and the matter was considered by the Queensland Court of Appeal who found:

  • The delay was nominal and wasn’t the fault of the applicant;

  • The delay had not sufficiently prejudiced the other beneficiaries;

  • The appellant’s current assets were unable to meet her needs;

  • The gift made was insufficient with respect to the appellant’s financial position; and

  • The appellant’s claim was neither clearly unlikely to succeed or likely to fail.

Consequently, the appellant was granted leave to make her family provision application and the executor was ordered to pay the appellant’s costs for the appeal. In his closing remarks, Jackson J noted that the executor had no justifiable basis for his opposition to the delayed application and had not considered its prospects of success. Further, due to the executor’s hard-line stance of opposition and failure to consider the merits of the family provision application, Jackson J opposed granting him an indemnity certificate against the estate.

The comments of Jackson J should be carefully contemplated by executors looking to oppose a family provision application which may have reasonable prospects of success. Ultimately, Ms. Green’s estate was significantly reduced by legal fees, diminishing the amount available for all the beneficiaries.

Contact us now if you are considering bringing a family provision application or are an executor defending an estate from such a claim. We can advise as to your prospects of success and assist with the family provision application process.



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