Wait and see! That’s what many people do when they realise that they have been left out of a will. They think it is tacky or insensitive to ask for a copy of the will soon after the death, or to assert that a moral duty applied, such that provision ought to have been made them. They hope that if they are patient, then surely, reason will prevail, and someone will make sure that they will get a fair deal and, quite often, negotiations between the parties do result in a reasonable outcome.
Unfortunately however, that patient attitude can be the un-doing of a potential claimant. In law, strict time limits apply, and failure to comply with time limits, even where it might seem unfair, can result in the loss of the opportunity to commence proceedings.
The primary reason for time limits is to allow a person whose interests might be affected by court proceedings to get on without interference. In the case of executors of an estate, it is necessary that executors get on and administer the estate according to law, in order that the deceased person’s beneficiaries receive the benefit left to them in the will.
Therefore, there are time limits for commencing proceedings for further provision – “family provision application”. Family provision applications are concerned with correcting a deceased person’s duty to make proper provision for a family member. It is possible that provision can be made for a family member even though the person is left out of the deceased’s will.
Limitation periods vary throughout Australia, so it is essential that the correct limitation period is complied with. In Queensland, the limitation period for filing a family provision application is nine months from the date of death. It is essential that notice of intention to apply for further provision be given to the executor who may, in the absence of notice, distribute the assets of the estate.
There are rare circumstances where the court might allow an application to proceed past the limitation date, but the circumstances must be reasonably exceptional. Two recent Queensland cases (Vickers v Pickering  QDC 58 and Mortimer v Lusink  QSC 119) illustrate the various relevant considerations, and also demonstrate that time is of the essence in ensuring an eligible applicant’s ability to commence proceedings for the purpose of correcting the deceased’s obligation to provide for family members. They also highlight the obligation of executors to administer the estate according to law, without resorting to shabby tricks to avoid lawful claims.
It is worth ensuring that specialist legal advice be obtained to avoid the results that obtained in the cases referred to above, or else it may be too late.