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A late application problem: out of time: Daughter: Late claim destroyed by her actions

A woman has recently decided to contest the Will, even though it is a number of years since

her father died. She had left everything up to her brother to sort out her father’s estate, and

then found that her father had left everything to the brother, and nothing to her.

The property involved is a farm and the brother has done nothing with it, and has not paid the

rates since the father died.

She was told by her advisors that she may be able to file her application to contest the Will,

and claim a share, even though it is late, because there has been no distribution of assets, the

executor has done nothing, and it would not be unfair on the brother to do so.

After receiving legal advice she called her brother and told him that she was going to make a

claim for something from the Will.

A couple of months later when she decided to make the claim she was then advised that the

brother had recently transferred the property into his name pursuant to the terms of the Will

and that her application to make a late claim has probably failed due to her telling him and

failing to act promptly. Once the estate had been wound up the court is unlikely to give her

permission to claim late.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

If the woman had not called her brother and she made her application before he transferred

the property, the Court may have given its consent to her bringing her application late,

because the estate had not been administered. However once the estate has been

administered, the Court will be reluctant to give her consent to bring the claim late. It would

have been different if the brother had actively misled her in some way and put her off

commencing a claim.