Family Provision Time Limit to bring an Application

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The case of Vickers v Pickering [2016] QDC 58 demonstrates Queensland courts will take all of the case circumstances into account in determining whether a statutory Family Provision Time Limit should apply, and emphasises the importance of a disappointed beneficiary putting an executor on notice of a potential claim or Family Provision Application.

Norman Knight passed away on 27 December 2014, survived by four adult daughters.  Out of his four daughters, Mr Knight left everything by his last Will to two of his daughters (the respondents) and left nothing for his other daughters (the applicants).

On 8 April 2015, within 6 months of Mr Knight’s death, the executor was put on notice of the intention of the applicants to bring a Family Provision Application against their late father’s estate.

On 23 November 2015, just under 11 months after Mr Knight’s death, the applicants brought a Family Provision Application against the estate.

On 7 December 2015, the executor sought a summary dismissal of the Family Provision Application on the basis that the estate had been distributed by the time the application had been brought.

Family Provision Time Limit – Statutory Time limitation for an Application

Under section 41(8) of the Queensland Succession Act 1981 , no Family Provision Application may be brought and heard by the court unless it is commenced within 9 months of the deceased’s death.

This is coupled with a protection for personal representatives (including executors) under section 44(3), which provides that that no claim may be brought against them if the estate distribution was properly made 9 months or more after the death of the deceased, provided:

  1. they have not received notice in writing that an application has been commenced in the court; and
  2. they have not been served with a copy of the application.

In this case, the 9 month statutory Time Limitation had passed and the respondents had not commenced nor served the executor with a copy of the Family Provision Application.

However, the applicants had made an offer to settle their application which had been rejected, and were in the process of gathering information regarding their financial needs and relationship with their late father, for the purpose of (as far as they understood) negotiating a settlement.

Without the applicants’ knowledge, the vast majority of the estate was distributed one day after 9 months had passed since Mr Knight’s death.

The Judgment

In the decision, McGill SC DCJ ultimately allowed the Family Provision Application to proceed, despite being brought outside the Family Provision Time Limitation, by dismissing the application for summary dismissal.

In delivering the judgment, His Honour made a number of observations on what it meant for the distribution of an estate to be “properly made” by an executor.

The case of In Re Faulkner [1999] 2 Qd R 49 was referred to [at 17] by way of an example where executors’ distributions were set aside and property was returned to the estate by order of the court pursuant to section 8 of the Queensland Trusts Act 1973This was a case where the Family Provision Application was brought within the Time Limitation, but the executors went on to distribute the estate after 9 months but before the matter had been resolved.  This was held to be in breach of a trust obligation “to preserve the estate until the claim is resolved”.

In the applicable context where notice of a Family Provision Application has at least been given, McGill SD DCJ said [at 31]:

“it must be at least fairly arguable that a distribution as soon as the nine month period has expired is not one “properly made”, so as to protect an executor from personal liability.”

His Honour went on to say [at 36], that there may be an argument in estoppel to prevent the executor from relying upon the estate having been administered in circumstances where, by inviting negotiations to resolve the claim, she had impliedly represented that she:

“would not, without reasonable notice to the claimant, act so as to prejudice the position of the claimant in the foreshadowed litigation if the attempt to negotiate proves to be unsuccessful.”

McGill SD DCJ denounced the executor’s behaviour in the circumstances and ordered that she:

  1. be joined as a respondent to appear in the Family Provision Application proceedings in her personal capacity as well as personal representative for the estate; and
  2. pay the costs of the applicants in the Family Provision Application personally.

This case emphasises the court’s expectation for parties to carry out resolution strategies such as negotiation in good faith, particularly in the context of smaller estates.  Rather than strictly upholding the statutory Time Limitation, judges may be willing hear applications brought out of time where disappointed beneficiaries have given notice of their intention to bring a claim and are actively pursuing that claim with the knowledge of the personal representative.

For more information regarding the family provision time limit

Please contact our Business Development Team or call us on (07) 3252 0011 to book an appointment with one of our specialist Estate Litigation Lawyers today.

This article was written by Kathleen Watt – Senior Lawyer.