Time Limits To Contest A Will (Qld)
In Queensland, there are time limits that constrain Family Provision Applications. An eligible applicant can only contest a will in the nine months following the death of a testator unless there is a valid explanation for an out-of-time claim. This article outlines the time limits involved in contesting a will in Queensland and focuses on persuasive justifications for delayed applications.
What Does It Mean To Contest A Will?
When someone disputes a will, they either challenge the validity of the will or contest the will’s provisions through a Family Provision Application (FPA). An FPA can only be lodged in the Queensland Supreme Court against the deceased estate of a Queensland resident, or for someone who owned real property in the state.
An FPA claimant must prove to the Supreme Court that the existing distribution of the deceased estate is unfair and that the testator owed a moral responsibility to provide adequate and proper provision for the claimant. If the application is successful, the estate will be redistributed to allow the claimant to receive a portion, or a larger portion, of the deceased estate.
The court will consider:
- The claimant’s existing provision, if any;
- The size of the estate;
- The financial circumstances of the claimant and any other current and possible beneficiaries;
- The usual standard of living of the claimant;
- Any unique circumstances that impact on the claimant’s income-earning capacity;
- The relationship between the claimant and the deceased;
- Any financial contribution that the testator previously made to the claimant;
- Any contributions that the claimant made to the estate.
Time Limits To Notify The Executor
There are two different time limits that apply to contesting a will in Queensland. Before a claimant can contest a will in court, they must serve written notice to the executor of the deceased estate that they intend to lodge an FPA. This notification must occur in the six months following the testator’s death, otherwise, the statutory waiting period will have expired and the executor may have already distributed the bequests to the beneficiaries. In that event, the court would consider it far harder to recoup the assets of the estate for redistribution. While it is necessary for the claimant to inform the executor, the executor cannot give permission for a late application.
Time Limits For A Family Provision Application
The time limits for contesting a will differ across the different jurisdictions of Australia. In Queensland, the Succession Act 1981 stipulates that a claimant must file an FPA to contest a will within nine months of the testator’s death.
Late Applications To Contest A Will
In rare cases, the court will hear a late application if they feel that there is a substantial case for the delayed claim. These dispensations are at the discretion of the court, based on a range of factors, including the total length of delay, the claimant’s reason for making the late application, whether all or some of the estate has already been distributed, and whether the claimant has displayed unconscionable conduct in the past. The court will also take into account if one of the interested parties (executor or beneficiary) objects to the late application.
Justifications For Late Applications
The court will only be persuaded to hear a late application where there is sufficient reason for the delay. An applicant who was informed of the testator’s death and who was aware of the time limits to contest a will can have little excuse for not making an on-time claim. On the other hand, there is scope for a late application if the claimant was ignorant of the relevant time limits, did not receive proper advice from their solicitor, or the delay was the result of unsuccessful efforts of the parties to resolve the dispute without court intervention.
A recent case before the Queensland Supreme Court and Court of Appeals demonstrates the current attitude to time limits to contest a will and late applications. In the 2016 case of Mortimer v Lusink a daughter filed an FPA against her mother’s will that was nine days out of time. She had received a provision of only $20,000 from a $1.2 million dollar estate, with the majority of the estate bequeathed to her brother. The claimant’s solicitor acknowledged fault for the late application because they had mistakenly advised the claimant that the time limit was from the date of probate, rather than from the death of the testator. However, despite this clear justification, the initial application was dismissed. The court found that the claimant had not established that the existing distribution was unfair, that the claimant was not in desperate financial need and had been estranged from the deceased for more than fifty years.
In 2017, the Court of Appeal reconsidered the case and found that the delay was minimal and not the fault of the appellant and that the delay had not unfairly impacted the other beneficiaries. They also ruled that the appellant’s provision was inadequate given the size of the estate and that her financial resources are insufficient for her circumstances. Ultimately, the court found that the appellant did have an arguable claim against the deceased estate. The appellant was allowed to bring her FPA out of time and the court ordered that the executor pay her legal costs out of the estate.
Our Contested Wills Team can advise you of the relevant time limits to contest a will in QLD, and help you decide whether it is worthwhile to make an out of time application. The Team has extensive experience with contesting wills and can assist you to make a persuasive case for further provision from the deceased estate. For any assistance with testamentary, estate or probate matters, please contact or call Armstrong Legal on 1300 038 223.