Private ruling: Commissioner's discretion to allow extension of time
Date of advice: 12 April 2024
Published: 27 May 2024
Ruling period: Income year ending XX XXXX 20XX
Date scheme commenced: XX XXXX 20XX

Ruling: Q1: Will the Commissioner exercise his discretion and allow an extension of time to the two-year period for the property? | A1: Yes. Having considered your circumstances and the relevant factors the Commissioner will allow an extension of time. Further information about the Commissioner's discretion can be found by searching ato.gov.au for 'QC 66057'.

Relevant facts and circumstances: Th deceased owned the property in their name only. It was their main residence. On XX/XX/20XX, the deceased died. They left a spouse and children. The deceased left two wills: the first will and the second will. On XX/XX/20XX, probate was granted to the second will to an executor. In 20XX, family members brought proceedings seeking a revocation of the grant of probate for the second will. From 20XX to XX/XX/20XX, proceedings moved through the Court. On XX/XX/20XX, the Court ordered probate of the second will to be revoked. From XXXX 20XX to XXXX 20XX, a family member remained living in the property with another family member who became threating and violent towards the other family member, who obtained a court against them. On XX/XX/20XX, family members entered a Deed of Family Arrangement with another family member to deal with the property according to the first will. On XX/XX/20XX, a family member died leaving a will naming another family member the executor. Their property was left to family members. They did not apply for a grant of probate of the first will. An application for a grant of letters of administration with the first will annexed had to be made by the executor. In XXXX 20XX, a family member obtained advice from lawyers for obtaining a grant of probate for their wills. Delays were caused by the inability to obtain a release of a will from the lawyers who held it until costs were paid. A settlement was reached and the will was released. In or about XXXX 20XX, the executor applied to the Court to obtain a grant of probate of a will. Between XXXX 20XX and 20XX, the Court considered the grant of probate of a will. On XX/XX/20XX, an executor obtained a grant of probate for a will. On XX/XX/20XX, someone was committed for trial on charges and confined. In XXXX 20XX, the executor's lawyers received the first will from the former solicitors. In XXXX 20XX, the executor was released from confinement. In XXXX 20XX, the executor lodged an application for letters of administration for the first will with the Court. On XX/XX/20XX, because someone failed to pay legal fees to their lawyers, the lawyers registered a caveat on the property and instituted court proceedings to enforce their caveat. On XX/XX/20XX, the executor lodged an affidavit in the Court responding to the caveat. The Court determined that caveat over the property needed to be withdrawn before the application could proceed. On XX/XX/20XX, the executor obtained letters of administration with the first will annexed to another will. On XX/XX/20XX, a trial of the charges against someone was heard in a Court. The Court found that they were not guilty. During 20XX, towards the end of the year, the executor gave notice to a family member to vacate the property. On XX/XX/20XX, there was a domestic incident involving family members. On XX/XX/20XX, someone was in court on charges. On XX/XX/20XX, a family member instituted proceedings in the Court again seeking a declaration that the first will should be declared as having been revoked by the second will. The application was dismissed. The executor was now able to deal with the property. In XXXX 20XX, the Police committed someone to a facility. On XX/XX/20XX, the executor's defence against a family member's claims. On XX/XX/20XX, the executor lodged cross claims against a family member. On XX/XX/20XX, a Deed of Settlement and Release settling the dispute between family members which also dealt with the settlement of the claims by some of the lawyers for unpaid fees. On XX/XX/20XX, delays by the coroner occurred before a death certificate was issued. On XX/XX/20XX, a settlement was signed between solicitors and the estate. On 06/03/2022, the executor died. They left a will appointing their spouse executor. On XX/XX/20XX, the executor applied for probate of the will. On XX/XX/20XX, probate of the will was granted. On XX/XX/20XX, transfer of title of the property to the executor's name. On XX/XX/20XX, a family member commenced legal proceedings to have themself replace the executor as trustee of the estate. On or about XX/XX/20XX, the executor placed the property on the market. On XX/XX/20XX, the court dismissed the family member's proceedings against the executor. On XX/XX/20XX, contracts were exchanged. On XX/XX/20XX, settlement occurred.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 118-195