Law Talks Episode: Understanding Family Provision Applications and time limits for contesting a Will

Robyn: Good morning and welcome to another edition of 4CRB’s Law Talks and today we have joining us from Attwood Marshall Lawyers, Estate Litigation Senior Associate, Martin Mallon. Thanks for joining us, Martin.

Martin: Thanks for having me, Robyn.

Robyn: Well, Martin is here to talk to us about family provision applications and what happens if you fail to contest a will within the required time limitation.

When determining who is eligible to contest, and whether or not to allow the application to proceed if time has lapsed, the court will determine each case on its own facts and merit. We’re going to uncover this further to help people understand when a court may allow a late family provision application to proceed and when it won’t.

Martin, we’ve spoken about family provision applications before, but for those who are unaware, can you please explain what a family provision application is and who is eligible to contest a will if they are unhappy with the provision they’ve received under a person’s will?

Martin: Sure, Robyn. Well, A family provision application is an application that is filed where someone is left out of the will or receives significantly less than the other beneficiaries.

It is an application where someone seeks what’s called further provision from the estate for their proper maintenance and support. These type of applications, it’s not anyone can file the application, you need to be an eligible person. To be an eligible person in Queensland, you can either be the deceased’s spouse, child, or a dependent.

There are more, the eligibility is different in other states. So, in New South Wales, the eligibility is greater than in Queensland. There are several factors that are considered in a family provision application, Robyn. They are the size of the estate, the financial and health circumstances of the applicant and the beneficiaries under the will, the need of the applicant, that is the primary focus of these applications that you need to have need, the relationship with the deceased and contributions about building up of the estate.

Robyn: And what do the public need to be aware of when applying for a family provision application? 

Martin: Well, there’s a few things that I think that is important to consider. Firstly, that you need to be an eligible person. So not anyone could put their hand up and say, well, why did you leave me out? I want money. Well, why didn’t I receive significantly less than other beneficiaries?

And people should not assume that the applications will be successful. Applications are not determined by what is fair. In fact, I often tell clients that we don’t use the word fair and estate litigation in the same sentence because it’s just not what the court considers. And if your claim is unsuccessful, there are cost considerations you may get an adverse cost order. Another factor, I think that the majority of these claims are settled at mediation or before trial. So, it doesn’t, ultimately get to a contested hearing, at trial.  If you’re unable to afford to pay a lawyer on a pay as you go basis, there are some law firms that offer to act on a deferred or a speculative basis or a no win, no fee basis.

Robyn: Sure.

Martin: And lawyers can give you advice on your prospects of success and your likely range of awards. So, before just filing an application to get an idea about whether I should file one or whether it’s got any merit at all.

And lastly, that there are strict time limitations that do apply to a family provision application.

Robyn: And what are the typical time limits for filing a family provision application after a person’s death?

Martin: There are, each state and territory have different time limitation, which is unhelpful. In New South Wales, for example, the time limitation is 12 months from the date of death. In Queensland, you must give notice on the executor within six months from the date of death, and then within nine months, you must file an application.

In Victoria, it’s completely different altogether. It’s not from the date of death. It’s six months from the date of the grant. So, in Victoria, you may have a little bit more time, to file an application. 

Robyn: Can an application be filed outside of the usual time limit? 

Martin: An application can be filed, however, the person must obtain leave of the court to proceed with their application.

Robyn: And what are some of the examples where an extension is likely to be granted by the courts? 

Martin: Well, Robyn, I’ll give you the typical lawyer answer, and that is, it depends. And it depends, it’s determined on its own facts and circumstances. But some cases where applications have been granted, one is where an applicant was unaware of his or her rights to make a family provision application and the beneficiaries were not adversely affected.

When I say not adversely affected, bringing a claim will adversely affect a beneficiary’s interest. But this is different being that the funds were not dispersed to the beneficiaries and their interests weren’t adversely affected.

Other cases have found where the delay is short and the estate has not been distributed, courts have granted leave to proceed out of time.

Another example is where the parties have been negotiating and for some reason the limitation period has been inadvertently missed.

And the last case that I found is where executors have intentionally failed or refused to disclose, very relevant information, the assets and liabilities of the estate, the deceased’s will, or even when if someone is estranged when the person actually died.

In my experience, I think that this type of tactic just doesn’t work and it simply increases costs because ordinarily, leave would be granted if the conduct from the executor is intentionally refusing to give basic information to determine whether an application should proceed or not.

Robyn: So, on the other side, what are some examples when an extension is unlikely to be granted? 

Martin: Another typical response, it depends, but, four different examples the courts have held where an applicant just simply changes their mind, so when him or her is aware of their rights, they’ve not elected to push forward with their claim and then for reasons, that they changed their mind, want to file and the court says, no, well, you were aware of your rights and you elected not to proceed with your application. 

Second case is where the application is made out of time and it was a deliberate attempt, sorry, deliberate decision not to claim, which others have relied upon to their detriment.

So, it could be where part of the estate has been distributed or there’s representations, oh no, I’m not going to make a claim and they change their mind and if leave was granted, it would affect, adversely affect the beneficiaries’ rights and interests.

Thirdly, is where, and this makes sense, where the claim has no merit or no real prospects of success, why would a court grant leave to proceed with an application when the court is of the view that it’s going to be unsuccessful anyway?

Robyn: Yep.

Martin: And lastly, where the applicant is unable to provide an adequate excuse for the delay. There are some cases where applicants have sought an extension five years, 10 years after time, and if the estates already distributed, it’s too late.

Robyn: And if the courts do accept an application, how do they assess these applications that are filed outside the limitation period?

Martin: Well, Robyn, in Queensland, if the claim is late, it must be before the estate has been distributed. In Queensland the courts have adopted the reasoning in a 1996 NSW case and that case looks at four different factors in whether to grant leave.  That is one, the sufficiency of the explanation about the delay in making the claim.

Two, whether there would be any prejudice to the beneficiaries if the period were extended. 

Three, whether there has been any unconscionable conduct by the plaintiff.

And lastly, the strength of the plaintiff’s case. And that one is quite important. Again, if there’s no real prospects of success, a court will not grant leave.

In New South Wales, there is legislation that talks about there must be a sufficient cause. And that is balancing the interests of the beneficiaries against the interests of the applicants.

Robyn: Okay. And is there any risks in filing an application outside the limitation period? 

Martin: The big risk is that you can’t assume that the court will grant leave and the risk is, well, you may not be successful.

If that is the case, the court may make an adverse cost order and instead of receiving further provision, you may walk away receiving a cost order of 10, 20,000 dollars. 

Robyn: What advice would you give a potential applicant considering filing outside the usual time frame? 

Martin: Firstly, Robyn, my advice is to get advice from a lawyer who practices exclusively in estate litigation who can provide advice on your likely range of award and your prospects of success. It is a very complex area of law.  People should not assume that leave will just be automatically granted, and each case is determined on its own facts and circumstances.

So again, to get that advice from a lawyer.

Robyn: Yeah, as we say time and time again, it’s always best to seek the advice of a lawyer. Thanks for joining us today, Martin.

Martin: Thanks, Robyn.

Robyn: You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from nine o’clock.