The recent decision of Frastika v Cosgrove as executor of the estate of Russell Walter O’Halloran (Deceased)  QSC 312 emphasises the importance of complying with legislative timeframes when lodging an FPA application.
In this matter, Mrs Frastika applied for greater provision to be made for her out of her late husband’s estate (who died in September 2014). She had been left approximately $160,000 out of the estate worth just over $1 million, with the rest to be placed into a trust for the benefit of Mr O’Halloran’s disabled granddaughter (of whom he was the legal guardian).
In Queensland such FPA applications must be filed within 9 months from the date of death, however Mrs Frastika’s application was lodged 63 days late. She also failed to notify the executor of the estate that she had made the FPA application until a further 12 months had passed.
Despite this delay, Mrs Frastika requested that the Court should exercise its discretion to grant her an extension of time to bring her claim. At the time of the hearing the estate had not yet been distributed.
Amongst other factors Mrs Frastika argued that:
- the delay occurred because of a combination of her grief following Mr O’Halloran’s death, her lack of understanding of her right to bring a claim and the inaction of her lawyers; and
- her claim against the estate would be quite strong given the amount she was left in light of her destitute financial position.
Boddice J ultimately dismissed her application as he was not satisfied that her explanation for the delay was sufficient to warrant an extension of time.
His Honour also commented that even if the extension was granted, her claim had poor prospects of success. This was based on the fact that she had only been in a relationship with Mr O’Halloran for 18 months at the date of his death, and any claim would negatively impact Mr O’Halloran’s granddaughter who was highly dependent on him during his lifetime and required around the clock care moving forward.