In the recent Supreme Court of Queensland case of Alagiah v Crouch as administrator of the estate of Ratnam Alagiah (deceased), the applicant sought leave of the court to bring a family provision application (FPA) for better provision out of the estate of her former husband out of time.

The applicant had been married to the deceased for 22 years until their divorce on 25 May 2012.  Leading up to the divorce and throughout 2012 various attempts were made by the applicant’s solicitors to reach a property settlement with the deceased.  The deceased died on 21 January 2013 whilst on holiday in Canada.  At his death, negotiations for the property settlement had not been concluded and no Family Law Act proceedings had been commenced.  That Act does not allow for institution of proceedings when one or more of the parties to the marriage have died.

The applicant therefore had limited options to bring proceedings to share in the deceased’s property.  A Grant in intestacy was made to the respondent on 11 July 2014 and FPA proceedings were instituted on 26 March 2015, some 17 months out of time.

There a number of factors courts consider when deciding whether to extend the time for bringing a FPA.  One element is that there should be an adequate explanation for the delay.  The judge hearing the application accepted that the applicant had satisfied that element.

However, the respondent argued that the applicant’s application would be futile because she was not an eligible applicant.  Under the relevant definition in theSuccession Act 1981 (Qld) (Act), the applicant would be eligible if she was regarded as a dependant former wife of the deceased.  That required her to be a person who was:

  1. divorced form the deceased,
  2. had not remarried or entered a registered relationship, and
  3. was on the deceased’s death receiving, or entitled to receive maintenance from the deceased. 

The applicant fulfilled the first two of those elements and the issue in dispute was whether she satisfied the third.  She was not receiving maintenance.  She could have brought Family Law Act proceedings prior to the deceased’s death.  The issue was whether she was “entitled” to receive maintenance.

The judge considered the meaning of that word.  She considered two older Queensland authorities and a number of interstate ones which held that “entitled” means having a crystallised enforceable right either by contract/agreement or by court order.  This did not apply to the applicant, thus she did not satisfy the definition in the Act and Her Honour had to refuse the application.

This was particularly unfortunate for the applicant because she was clearly in need and on balance would have succeeded in her application had she been eligible.

This case again highlights the necessity for people always to act quickly and ensure their rights are protected when they find themselves in a legal dispute.