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Bringing a Family Provision Application Out of Time

By 18 September 2023Wills & Estates

Time limits are set by legislation in many legal matters to ensure fairness to both sides of the dispute and to ensure that justice is done in a timely fashion.

Family Provision Application (FPA) – is the legal action available to a person who believes that adequate provision has not been made for them in a deceased person’s will. FPAs are one such legal matter that comes with time limits.

Under section 41 of Queensland’s Succession Act 1981 (‘the Act’), if an eligible person (defined as a spouse, child or dependant of the deceased person wishes to pursue an FPA they must:

  1. give written notice of their intention to bring an FPA against the Estate to the Executor within six months of the deceased’s date of death; and
  2. File an Application and supporting documents in Court.

This deadline is strict.  An eligible person can be precluded from bringing an FPA if they miss the time limit.  There are some situations where the Court may allow an FPA to proceed out of time, which we’ll discuss further in this article.

The basics of making an FPA

A person who can demonstrate that they are an eligible person and have not been given adequate provision in the will, or under the rules of intestacy if the Deceased had not made a Will, may make an FPA. An FPA can be made before a Grant of Probate or Letters of Administration is obtained.

Eligible persons include a spouse, child or dependant. Spouse can include a husband, wife, de facto partner and/or civil partner, including a dependant former husband, wife or civil partner. A child includes the deceased’s biological children and stepchildren or adopted children.

For a person who claims dependency on the deceased when they were alive, they must establish they were wholly or substantially maintained or supported by the deceased at the time of his or her death, and were the deceased’s parent; the parent of a surviving child under the age of 18 years of that deceased person; or a person under the age of 18 years.

In considering an FPA the Court has wide discretion to determine what is “adequate provision” and will take into account factors such as the applicant’s financial circumstances, the total value of the estate, the financial position of other beneficiaries and the nature of the relationship between the deceased and the applicant. The burden rests with the applicant to establish that the deceased failed to adequately provide for them from the estate. In a successful claim, the Court can order that a set sum or a share of the estate be distributed to the applicant.

When the time limit may be extended

As mentioned, an FPA must be made within nine months of the date of death.

However, it is possible to seek the Court’s permission under section 41(8) of the Act, to bring an FPA outside the time limit.

In the 2017 case of Mortimer v Lusink & Ors [2017] QCA 1 (‘Mortimer’), the Court stated “an applicant who has failed to make a timely application for further provision must make out a substantial case for it being just and proper for the court to exercise its statutory jurisdiction to extend the time” [at para 21].

The factors considered by the court in deciding whether to allow an out-of-time application include:

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

The fact the estate has already been partly or wholly distributed at the time of the application may also be considered by the court.

In Mortimer, the daughter of the deceased received $20,000 under the will from an estate of $1.2 million, with her brother receiving the majority of the estate. She made an FPA for adequate provision but it was filed ten days after the statutory deadline because of a mistake in calculating the time limit by the applicant’s solicitor.

The primary Judge found the overall strength of the applicant’s case did not merit an extension of time to make the FPA. But the Court of Appeal overturned the original decision, finding that the delay was minimal, the fault did not lie with the applicant, and that she had a substantive case. The applicant was permitted to bring her FPA application out of time.

Speak with expert wills and estate lawyers

At Delaney & Delaney, we have experienced solicitors who can give advice regarding making an out-of-time FPA. The discretionary nature of the Court process can make for uncertain outcomes in what can be a costly and time-consuming process. We can help clarify the issues involved and give you a realistic appraisal of the strength of your potential application if you have missed the statutory deadline of nine months to file. This process can involve difficult conversations with the estate’s executor and other beneficiaries, which we will bring our experience and expertise to in helping you navigate this sometimes challenging process.