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Extension Of Time Limit For Claiming Against Deceased Estate (Qld)

In Queensland, an eligible applicant can only make a claim against a deceased estate for a short time after the deceased passes away. However, sometimes a claimant has a valid reason for failing to make a claim within the time limit. In that case, the Supreme Court of Queensland may make an exception and allow for an extension of the time limit. This article outlines the circumstances that might prompt the court to grant an extension of time limit for claiming against an estate with reference to a recent case study.

Contesting A Will In Queensland

In Queensland, someone can only contest a will if they are eligible under the Succession Act 1981. If this eligible person is left insufficient provision in a will, they can make a Family Provision Application to the Supreme Court. The court will consider the claimant’s financial circumstances, the value of the estate, the position of other claimants and the nature of the relationship between the deceased and the claimant. It is up to the claimant to establish that the testator failed to provide for their immediate and ongoing welfare. The court can order a redistribution of the estate so that the claimant receives a proper portion of the deceased estate.

Time Limits In Queensland

The time limit that applies to making a claim is different depending on the state or territory. There are two time limits that matter when making a claim against a deceased estate in Queensland.

Firstly, a claimant needs to provide the executor of the estate with written notice of their intention to make a Family Provision Application. The claimant needs to supply this notice in the six months after a testator’s death. Otherwise, the executor will be free to distribute bequests after the statutory waiting period. It will be both legally and practically harder to recoup these assets after the beneficiaries have received their bequests. As a result, the court is less likely to allow an extension of the time limit if the assets of the estate have already been given out to the beneficiaries listed in the original will.

The second and more important time limit that applies to Family Provision Applications is the deadline to officially file a claim. In Queensland, a claimant only has nine months from the testator’s date of death to file with the court. It is essential that a claimant meets this deadline because the court can summarily dismiss any claim that is filed after the statutory deadline.

Application For Extension Of Time Limit

The Supreme Court may hear a late application if they feel that the claimant made a substantial case for an extension. The court has the ultimate discretion to grant this exception, based on a number of factors, such as:

  • The length of the delay;
  • The reason for the delay;
  • Whether the estate is already partly or wholly distributed;
  • Whether the executor or beneficiaries object to the extension of time limits; and
  • Any other factors the court deems relevant.

Extensions Of Time Limit: Justifications

The court will only allow an extension of the time limit if there is an adequate justification. Someone who was aware of the testator’s death and the relevant time limits has little excuse for missing the deadline to make a claim. On the other hand, the claimant may have a legitimate excuse if they were not aware of the testator’s death, and/or was unaware of the time limit, and/or did not receive correct advice from their solicitor.

Case Study

The Queensland Supreme Court and Court of Appeal examined the issue of late applications in the case of Mortimer v Lusink (2016). In this case, a daughter filed a Family Provision Application against her mother’s will nine days after the deadline. Her mother had left the majority of her 1.2 million dollar estate to her son and only $20,000 to her daughter.

The Supreme Court heard the claimant’s solicitor acknowledge fault for the late application, as they had advised that the time limit was counted from the date of probate instead of from the date of the testator’s death. The court dismissed the claim on the weakness of the claim in totality, rather than on the basis of the out of time application.

However, in 2017, the claimant appealed this decision, and the Court of Appeal overturned the Supreme Court’s dismissal of the case. The Court of Appeal allowed the extension of time limit on the basis that the delay was minimal and the fault did not lie with the claimant. Ultimately, the court found that there was an arguable case, and the claimant was allowed to bring the claim. She received a larger percentage of the mother’s estate, and the estate was also ordered to cover her legal costs.

As this case shows, it is possible to obtain an extension of the time limit and make a claim against a deceased estate in Queensland after the statutory deadline. Our Queensland contested wills team can help draft a persuasive application so that your legal interests are protected. Please contact our friendly team on 1300 038 223 to discuss your claim without delay.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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