Estate litigation: When can a court enlarge time for a family provision application?

Case Note: Mortimer v Lusink & Ors [2017] QCA 1


This is an estate litigation case. Loma Green passed away on 2 July 2015. Under her will she specifically gifted $20,000 to her daughter, Anita Mortimer, and $50,000 to her friend. The remainder of Ms Green’s estate was left to her son, Christopher Lusink, who she also appointed as executor of her Will. The gross value of the estate was circa $1.2M.

Ms Mortimer (the daughter of the deceased) sought to bring a family provision application for adequate provision to be made for her proper maintenance and support out of the estate.

In Queensland, a deceased person’s spouse, child or dependent is entitled to make such an application to the court, if adequate provision is not made in the deceased’s will.

1 An application for provision must be made within nine months after the death of the deceased. However, a court may exercise its discretion to hear and determine an application made after this time.

2. Ms Mortimer’s application was made ten days after the nine month period after Ms Green’s death had expired.


The issue is whether or not it is just and proper for the court to exercise its discretion to extend the time in order to hear and determine Ms Green’s application.


Ms Mortimer’s application was dismissed by the Supreme Court of Queensland at first instance. However, this decision was overturned in the appeal judgement.

Four factors can be relevant in an application of this kind, namely:

1. The sufficiency of the explanation of delay in making the claim;

2. Whether there would be any prejudice to the beneficiaries;

3. Whether there has been any unconscionable conduct on the part of the appellant;

4. The strength of the applicant’s case.3

The Court of Appeal accepted Ms Mortimer’s explanation of delay. The majority of the property in Ms Green’s estate was in Victoria, where the time limit for making an application of this kind is different.

Ms Mortimer’s solicitor practiced in New South Wales and was not experienced in this area of law. As such, the cause of delay was not Ms Mortimer’s fault and the delay was minimal.

Secondly, the Court of Appeal found the beneficiaries would not suffer any prejudice if the application was granted. The possibility of having to return some part of their distributions was not out of the ordinary.

Thirdly, there was no suggestion of unconscionable conduct.

In determining the strength of Ms Mortimer’s case, the Court considered the likelihood of the application succeeding.4 The Court of Appeal found that the facts suggest that the financial resources available to Ms Mortimer were insufficient to meet her needs now and into the future. While an award for further provision would not equate to the insufficiency in her resources, there was capacity in the estate for further provision to be made to her. Ms Mortimer was held to have advanced an arguable claim for further provision to be made for her.

In these circumstances, the Court thought discretion ought to be exercised to hear and determine Ms Mortimer’s application. The beneficiaries were required to pay back all amounts received under Ms Green’s Will, pending the determination of Ms Mortimer’s application.

Do you have an estate litigation matter?

Is there a Will dispute or Family Provision claim? Our Estate Litigation team regularly act in Will Disputes and Family Provision claims for both claimants and executors in responding to such claims. Contact us today.

Written By Andrew Lind & Brooke Nickerson

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