Timing is everything: FPA out of time by 10 days allowed on appeal

brbjshca8d4-brooke-larkFor those of you who aren’t aware, last year saw the Supreme Court dismiss a family
provision application that was filed only
10 days past the limitation date in the matter of Mortimer v Lusink & Ors [2016] QSC 119.  As you probably would appreciate, this was met with quite a lot of interest in my world.  I’m sure there were many practitioners that updated their letters to clients highlighting the importance of the the limitation dates just that little bit more; if that were possible.

On 31 January 2017, the Court of Appeal allowed an appeal against the Supreme Court’s decision in the same matter; Mortimer v Lusink & Ors [2017] QCA 1.

By way of background, the deceased, Loma Narelle Green, was survived by her two children. The deceased left a small bequest to her friend of $50,000 and $20,000 to her daughter, Anita. She left the residual of her estate among her son, Christopher, and her two grandchildren.  Her son, Christopher Lusink was the executor of her will and her daughter Anita Mortimer brought a claim against the estate for further provision. The estate was valued at approximately $1.2 million.  The executors opposed the application by Anita on the basis that she could not provide adequate explanation for the delay, the estate had already been distributed and her prospects of success weren’t good.

Importantly, the estate was largely comprised of property in Victoria and Anita had originally obtained advice from a NSW legal practitioner.  Anita was mistaken as to the time-frame appropriate in the State of Queensland that set out when she must file her application. Accordingly, she was to required to file her proceedings by 4 April 2016 and did not so until 14 April 2016. Prior to her filing her application, Anita had given notice to the executor of the estate of her intention to claim and negotiations were on foot. Notwithstanding this, the executor had distributed the estate prior to Anita filing her application.

In allowing the appeal, the Court said, at paragraphs 60 to 63:

It is open to this Court to re-exercise the discretion under s 41(8). It will do so on the evidence now before the Court and in circumstances where the delay is minimal, not attributable to the appellant herself, and has not caused sufficient prejudice.

The evidential factors to which I have referred in the preceding discussion leads irresistibly to a conclusion that the financial resources available to the appellant are insufficient to meet her needs now and into the future.  The bequest to her under the deceased’s will falls well short of that insufficiency.

Whilst an award for further provision for the appellant would not be expected to equate to the totality of the insufficiency in her resources, there is a capacity in the estate for significant further provision to be made for her.  The relationship between the appellant and the deceased was not a close one.[71]  However, the geographical distances between their places of residence precluded regular physical interaction between them.

In my view, the appellant has advanced an arguable claim for further provision out of the deceased’s estate. It is not a claim that is clearly unlikely to succeed. It cannot be said that it will probably fail. I am therefore satisfied that, in all these circumstances, the discretion under s 41(8) ought to be exercised in the appellant’s favour.


The beneficiaries were required to pay their inheritance back to the estate and the matters is to be sent to the District Court of Queensland for determination of the family provision claim.

You can read the case here.

Essential Note: If you have stumbled across this article in your search for information relating to making a claim on estate, please seek legal advice. This information is of a general nature only and should never replace sound legal advice of your situation and circumstances.  Each state in Australia has different laws and therefore different requirements when making a claim and the time-frames for doing so.

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