Lost time is never found again: FPA 63 days out of time dismissed

Lost time is never found again – Benjamin Franklin. ft0-xu4ntva-loic-djim

Another example of how important deadlines are in a family provision application (FPA), the Queensland Supreme Court was called to determine an application for leave to proceed with an FPA out of time.

The case of Frastika v Cosgrove as executor of the estate of Russell Walter O’Halloran (Deceased) [2016] QSC 312 was delivered on 23 December 2016.  Russell O’Hallaran died on 12 September 2014 at age 70. He was survived by his wife of 8 months, the applicant, Ni Luh Ayu Evi Frastika, and his two adopted children (aged 38 and 30 years).  The deceased and his first wife had also taken over the care of their adopted daughter’s child who has autism.  The deceased was granted sole parental responsibility of his granddaughter; his granddaughter requires a full time care and likely to for the remainder of her lifetime.

Ms Frastika had immigrated from Indonesia and was in a relationship with the deceased for approximately 18 months at the date of his death. They married on 20 January 2014 and the deceased had made his last will on 27 August 2014.

In the face of a terminal illness, the deceased went to his accountant to discuss his estate planning and expressed his desire to ensure his granddaughter was cared for and his wife had enough provision to further her education. The applicant was present during this meeting.

Under the will, she received two motor vehicles. Outside the will, she had received the benefit of a superannuation policy to the value of $150,000.00 via a binding death benefit nomination and the benefit of a joint bank account in the amount of $10,000.00.  The remainder of the estate was left by way of a testamentary trust for his granddaughter.  (The applicant sent the money she received from the superannuation back to Indonesia to pay her parent’s debt.)

The executor was notified of the applicant’s intention to make the application 1 day before the filing of the application.  The application was filed 14 August 2015, being 63 days after the 9 month limitation period.  The respondent was not served with the claim until 21 June 2016 (more than 12 months after the limitation period). The applicant did not file her supporting affidavit until 6 July 2016 (390 days after the 9 month limitation period).  The legal representatives correspondence in the weeks following notice of the application being given, however no further correspondence was exchanged in the 302 days that followed.

In support of her application the applicant submitted her explanation for the delay, stating that:

  • She was in shock after the death of her husband
  • She was required to leave the family home after he passed
  • She was concerned about being deported
  • She obtained legal advice, but she didn’t understand the legal requirements
  • She lacked financial resources
  • She needed to get a job
  • She later moved interstate (to Western Australia)

The Court was not convinced that the explanation of the delay was sufficient and that she failed to prosecute her claim diligently. The Court further noted that whilst the supporting affidavit and service of same was also delayed, the primary issue to be explained was the delay in filing the originating application.

The Court considered the prospects of the applicant’s claim. The Court referred to the two stage process enunciated in the case of Singer v Berghouse (1994) 181 CLR 201. Whilst the Court noted the suggestion that the Will did not provide adequately for a spouse, the Court stated that:

“such a consideration fails to have regard to the applicant’s overall financial position, the totality of her relationship with the deceased, and the size and nature of the deceased’s estate” (para 37).

The Court was satisfied that in making the financial provision for the applicant via his superannuation, the deceased had specific regard to the applicant’s needs for education and set-up costs in Australia. The Court also noted that given the position of the estate (being just over $1million), the duration of the relationship, the applicant would find it difficult to establish that what she received as a result of her husband’s death would be inadequate in all the circumstances.

The Court held that the applicant had not discharged the onus upon her to establish a substantial case worthy of the Court’s discretion being exercised in her favour and subsequently dismissed the claim.

You can read the case here.

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