Mortimer v Lusink & Ors [2017] QCA 1



Loma Green was the estranged mother of Ms Mortimer. She died on 2 July 2015. Green left Mortimer $20,000 stating that she felt Ms Mortimer to be of adequate financial means, and that Ms Mortimer’s Father – Dr Theodore Lusink – would make adequate provision for her in his own will.

Dr Theodore Lusink died on 22 July 2016. Dr Theodore Lusink had not made substantial provision to Ms Mortimer under his will.

The total value of Ms Green’s residuary estate was $1,128,041.82.

Mortimer made an application, seeking adequate provision from the estate of Loma Green – her estranged mother. Ms Mortimer was 70 years of age, and her husband 75. Their age, and health conditions mean they are of limited income, and unable to save any of their pension towards vital repairs to their A-frame home, adequate healthcare, or basic recreational activities.

Under the Succession Act 1981 (Qld) s41(8) there is a limit of 9 months within which a person may make an application for adequate provision under a will. Ms Mortimer filled her application on 14 April 2016 – outside the 9 month limitation. She was seeking for the court to exercise its discretion under s41(8) of the Act, and hear her application, the time limit notwithstanding. The court decided against this because she would likely not succeed in making the application. Ms Mortimer appealed that decision.

Furthermore, there was an order sought that the First Respondent pay the costs of the appeal, but that he be granted a certificate of indemnity in respect of those costs, and his own costs.


There were two key issues:

  1. Did the trial judge make an error in deciding to dismiss Ms Mortimer’s application for an extension of time?
  2. Should a certificate of indemnity in respect of costs be awarded?


Time limits are strictly imposed, and courts are loath to exercise a discretion to hear applications outside of those time limits except where an applicant can show that it is ‘just and proper’ for the court to exercise its discretion. The trial judge made an error as to what factors should be considered in deciding whether to exercise the discretion, and placed too-high a threshold before the applicant.

  • Financial Situation

The trial judge also made an error regarding important facts in the case. These related to the financial status of the applicant. Importantly, documents that were submitted outlining annual expenses and income did not incorporate a range of other expenses for matters such as medical and hospital costs, heating, or basic recreational activities. In evidence, the Ms Mortimer swore that all income was spent on expenses, and none was retained as savings – that evidence was not challenged.

There was further evidence that Ms Mortimer and her husband had not taken a holiday in more than a decade, could not afford basic recreational activities such as going to the movies, or eating at McDonalds. Nor could they afford to visit their grandchildren.

The key issues for the appeal court in deciding whether the discretion should be exercised were that:

  1. Ms Mortimer herself was not responsible for the delay in bringing the application;
  2. Her financial situation was dire, and was not alleviated by any gift from her father.
  3. There was sufficient resources in the estate of Ms Green to allow for a greater provision to be made to Ms Mortimer.
  4. The claim that Ms Mortimer put forward was likely to succeed.


  • Costs

In relation to the certificate of indemnity, the majority of the court was of the view that since the reason for the appeal was an error by the trial judge, not any of the parties, the certificate should be granted.

Jackson J dissented on this point on the grounds that it was the respondents who lead the trial judge to a mistaken view as to what requirements Ms Mortimer had to meet in order to have her application heard outside of the time period.

The orders were made that Ms Mortimer’s costs be paid by the respondent, but that the respondent be indemnified against all the costs by way of an indemnity certificate.


In order to make an application for adequate provision, it is not necessary to show that you have a prima facie case for a substantial award from the estate. Only that you have an arguable claim, that is clearly not unlikely to succeed.

When preparing estimates of income and expenses in anticipation of them being used in court proceedings, confusion will be best avoided by highlighting income and expenses that are not included on such lists.