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A widow filed an application in Court to make a claim on her late husband’s estate. She was, however, 63 days late in filing the application. Although the Court has discretion to extend the time for making such an application, it did not do so in this instance.

How to make an inheritance claim

The deceased’s estate was worth almost one million dollars. The widow married her late husband almost eight months prior to his death, having been in a relationship with him for approximately 18 months.

The widow received $150,000 from the deceased’s superannuation fund after he made a binding nomination appointing her as the beneficiary. She was also given his two cars under his Will, and received $10,000 which passed to her from a joint bank account.

He gave the rest of his estate to his granddaughter. The deceased was granted sole parental responsibility of his granddaughter, who has autism and requires full-time care, in 2006.

The widow, in order to be successful for the Court to grant her an extension of time, had to show there were sufficient grounds for the extension. This required her to show there was an adequate explanation for the delay, that it would not prejudice other beneficiaries, that she had not been involved in any unconscionable conduct and that her case for a claim was sufficiently strong.

The Court held that her reasons for delay, being that she lacked resources and had little understanding of her rights, was not a satisfactory explanation. She should have sought legal advice during this time.

The Court also said, although the estate was yet to be distributed and wouldn’t affect any beneficiary to that extent, that an extension of time may cost the estate and therefore reduce the funds available to the granddaughter, resulting in her being prejudiced.

The Court noted that the widow had not engaged in any unconscionable conduct, and in regards to her prospects of success felt that, on the face of it, the will would have suggested she was inadequately provided for. However, when taking into account other relevant factors, such as her financial position, her relationship with the deceased, the size and nature of the deceased’s estate, and the receipt by her of the $150,000 payment from the deceased’s superannuation fund, the Court concluded that there was a real risk that the widow would fail in making her claim.

The Court dismissed the application, denying the widow the ability to extend the time for bringing an application to make a claim on her late husband’s estate.

Take home point: Do not delay in making a claim! Seek legal advice as soon as possible. At the very least, find out where you stand, how much time you have and what your options are.

The case discussed is Frastika v Cosgrove as executor of the estate of Russell Walter O’Halloran (Deceased) [2016] QSC 312

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