You may delay, but time will not

In a recent Queensland case, a married couple had, after 22 years of marriage, obtained a divorce and had commenced negotiations for a property settlement. The ex-husband however passed away during the property settlement negotiations. As a result, the ex-wife was denied the chance to commence proceedings for a family property settlement in the Court.

After separation and during property settlement negotiations, the ex-wife lived with her elderly mother in India who was her sole source of support.  When her mother passed away, the ex-wife lost that support and was in dire financial need.  It is estimated, the ex-husband had between $336,968 and $683,765 in net assets, depending on the amounts owing on mortgages over certain properties.  The ex-husband did not dispute her entitlement to a share of the assets.

The ex-wife had limited options to receive her share of the marital assets as the ex-husband’s alleged last Will, where the deceased’s signature had not been witnessed, requested the Local Spiritual Assembly of the Bahá’í Faith of Charles Sturt be Executor of his estate, and his assets divided according to the tenets of the Bahá’í Faith.  The ex-wife decided to bring a claim against the husband’s estate for further and better provision.

The time limit however for the ex-wife to commence a claim against the ex-husband’s estate had expired on 21 October 2013 and she did not file a Claim until 26 March 2015.

The Court therefore had to consider the following:

  1. Whether there were adequate grounds to allow the claim out of time; and

The Court noted the ex-wife was suffering from extreme financial hardship, yet continued to attempt to finalise the family property settlement.  The Court therefore found an adequate explanation for the delay in filing her Claim.

  1. Whether the ex-wife had a strong claim against the estate.

The success of the ex-wife’s claim depended on whether she was considered a “dependent former spouse entitled to receive maintenance from the deceased”.

The Court found that the ex-wife was not entitled to receive maintenance from the deceased as there was no contract or Court Order providing the ex-wife a crystallised right to payments of maintenance at the time of the ex-husband’s death.  The ex-wife was therefore not considered a former dependent spouse, regardless of her financial need.

As a result the ex-wife could not make a claim against her former ex-husband’s estate, nor could she complete a family law property settlement.

The case provides an illustration of why it is imperative that you do not delay legal matters – as you can risk losing any rights you may have.

If you have any legal claims relating to a family law property settlement or a deceased estate, we urge you to contact either the Family Law Department or the Estate Department of McLaughlins Lawyers for legal advice.

Author: Amy Douglas

Partner: Ian Kennedy

Date: 03/12/2015