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Home | Blog | 9 Day Late Further Provision Application Dismissed

A recent Queensland Application to obtain the court’s leave to bring a claim for further provision that was filed nine days out of time was rejected by the Supreme Court.

The deceased, Loma Green died on 4 July 2015. On 14 April 2016 her daughter, Anita Mortimer filed an application in which she sought a direction from the Court that she be allowed to bring an application for further provision from her mother’s estate.

Limitation period

The application was necessary because the application was filed nine days out of time. The nine month limitation period expired on 4 April 2016 and her application for further provision should have been filed on or before this date.

The applicant was the eldest child of the deceased. She was 69 years old and the mother of two adult children.

The deceased provided the applicant with a gift of $20,000 in her will and stated in her Will that she believed that the applicant had adequate financial means and would benefit from her father, Theodore Lusink’s estate.

The deceased made one other gift of $50,000 to a friend and left the balance of the estate to Theodore Lusink and his two children as tenants in common in equal shares. The estate was valued, for the purposes of obtaining probate, at approximately $1,200,000.

The relationship between the applicant and the deceased was not close.

The applicant and her husband owned an unencumbered house worth between $500,000 and $525,000, had no debts, had a combined income of approximately $40,000 a year; had a combined superannuation fund worth about $29,000; and owned a car worth about $30,000 together with household contents and personal effects.

Counsel for the applicant argued that the applicant’s position was uncertain as her husband is in poor health; the annual income is a Commonwealth old age pension; she has no earning capacity; the superannuation fund is small; and the house in which she lives is in need of substantial expenditure for repairs and replacements.

Counsel for the respondent identified the following relevant matters in the applicants claim, she retired at 50 and has not worked since then; her health was relatively good for her age; she wanted to buy a house elsewhere in Victoria at a cost of about $600,000.00. Alternatively, she wanted to engage in substantial work on the house in which she lives.  Her combined fortnightly income with her husband exceeds their fortnightly expenses by about $250; and her claim that she needs to spend $7,000 on dental work is not supported by evidence.

Her Honour reiterated Justice White’s comments in Bird v Bird “Time limits in statutes are for good reason.

Her Honour also referred to the reasons of Hodgson J in Warren v McKnight where he set out four factors which can be relevant in an application like this:

  1. the sufficiency of the explanation of delay in making the claim;
  2. whether there would be any prejudice to the beneficiary/ies;
  3. whether there been any unconscionable conduct by the applicant; and
  4.  the strength of the applicant’s case.

The respondents accepted that the only prejudice they would suffer would be the (possible) return of the distributions already made to them and the loss of the right to rely on the limitation period.

There was no unconscionable conduct by the applicant in this matter.

The two areas in which the respondents argue that the applicant could not succeed was the explanation of the delay and the strength of the case.

The applicant’s solicitor, who was also the applicant’s daughter, told the court that she thought that the time limit for making an application expired nine months after probate was granted. Probate was granted on 8 September 2015.

This is not a case in which an applicant has, while aware of the capacity to apply, done nothing and then applied for leave. The mistake was not hers but her solicitor’s. In all the circumstances, her Honor was satisfied by the explanation and went on to say that the task for an applicant is to “make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time”.

In an application of this kind, the applicant is assumed to have “put her best foot forward”. Having regard to the criteria set out in Singer v Berghouse her honor stated that the applicant’s best case is one in which the applicant has:

  1. not established that the deceased was mistaken in her assumptions about the applicant’s position;
  2. has been shown to have been emotionally removed from the deceased and to have had little contact with her for over half a century;
  3. Has no entitlement to provision as of right; and
  4. Is living in modest, but not straitened, financial circumstances.

Her Honour stated that the applicant must do more than show that she might succeed. She has to demonstrate “a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time”. This the applicant had not done.  Accordingly the application was dismissed.

This case highlights the importance of obtaining appropriate legal advice as soon as possible and the importance of complying with Statutory Time Limits. For further information about estate litigation, please contact our Wills and Estates Department on (07) 3025 9000. Alternatively, you can visit us at any of our 8 QLD offices in Brisbane, North Lakes, Logan, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.

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