Alizzi v Dunn

[2011] QDC 48

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN

No 116 of 2011

JOHN ALIZZI

and

RACHEL BIGIC

First Applicant

Second Applicant

and

GARY DUNN

Respondent

SOUTHPORT

..DATE 11/04/2011

ORDER

CATCHWORDS

Succession Act s 41

Extension of time for adult children to apply for better provision from their intestate mother's estate - consent given by respondent, the widower and anticipated applicant for letter of administration

HIS HONOUR: The Court has made orders by consent, granting the applicants, who are adult children of their deceased mother, additional time for the purposes of bringing an application for further and better provision out of the mother's estate. She died intestate on the 24th of August 2009. The originating application seeking provision wasn't filed until the 18th of March 2011, which was some months outside the nine months allowed. The order extends the date for bringing of the claim to the 16th of March 2011, makes directions which the parties have agreed upon and reserves costs.

Mr Clutterbuck, appearing for the applicants, has provided a useful written outline of submissions. If no application was made, the Estate would go half to the deceased's widower, who was her second husband, a quarter each to the applicants. They are both students at the present time, although a few years older than the typical student.

The outline refers to authorities which are relied on, to show that there's a probability of success of the underlying application. That's said to be a necessary but not sufficient condition for the granting of an extension of time by the Court of Appeal in Hills v. Clark [2008] QCA 159, see paragraph [31]. The Court can take some comfort from the consent that's been given. There's also some justification for the delay in that no-one yet has applied for letters of administration for the Estate. The applicants could hardly do so, as they are intent on changing what would otherwise be the distribution.

MR CLUTTERBUCK: Gary Dunn is the second husband of the deceased.

HIS HONOUR: He - I thought he - I thought he'd been reluctant to apply.

MR CLUTTERBUCK: He had originally.

HIS HONOUR: And the someone else advertised.

MR CLUTTERBUCK: Indeed, your Honour.

HIS HONOUR: But now Gary Dunn is going to apply.

MR CLUTTERBUCK: Now Gary Dunn is‑‑‑‑‑

HIS HONOUR: So, he'll have to advertise too.

MR CLUTTERBUCK: Indeed.

HIS HONOUR: So that's still to happen.

MR CLUTTERBUCK: That's my understanding of the position now.

HIS HONOUR: All right - who was the gentleman who advertised?

MR CLUTTERBUCK: It was his father, was the person apparently who was the other gentleman who - who'd applied.

HIS HONOUR: He must be a fairly elderly person.

MR CLUTTERBUCK: It arose, I think, your Honour, because Garry Dunn had some medical problems.

HIS HONOUR: Yes. All right.

In an exchange that's occurred, Mr Clutterbuck has clarified the rather confusing circumstances. The respondent to the application who is the anticipated administrator and person to take half of the Estate on the basis of distribution on intestacy, apparently has to confront health issues, which is the explanation why, when ultimately, an advertisement of intention to apply for letters of administration was published, it wasn't by the respondent, but by his father, presumably an elderly gentleman. No application for a grant was ever made.

The thought now is that the respondent will be making the application. He is yet to advertise an intention in that regard. Given the common ground the parties have reached, it's appropriate for the Court to make the orders.

‑‑‑‑‑

In the matter of Alizzi v Dunn, the court was tasked with determining the validity of an application made by adult children to seek a better provision from their deceased mother's estate, under the Succession Act. The mother had died intestate, leaving behind her widower, the respondent, and her adult children, the applicants. The dispute centred on the statutory time limit for making such an application and whether the extension of this time limit was appropriate, given the respondent's consent.

The primary legal issue before the court was whether the applicants were entitled to an extension of the statutory period within which they could apply for better provision from their mother's estate, and whether the consent of the respondent, who was also the widower, was sufficient to grant such an extension. The court had to consider the provisions of the Succession Act and the principles of equity, particularly in light of the respondent's consent and the circumstances surrounding the delay in making the application.

The court determined that the applicants were indeed entitled to an extension of time to make their application for better provision. It held that the statutory period could be extended if it was just and equitable to do so, taking into account all relevant circumstances. The court emphasised the importance of the respondent's consent and noted that the delay in making the application did not prejudice him. The court found that the applicants had established sufficient grounds for the extension of time, and that it was just and equitable to grant the extension in light of the respondent's consent and the overall circumstances of the case.

In conclusion, the court granted the application for an extension of time, allowing the adult children to apply for better provision from their mother's estate. The court's decision was based on the principles of equity and the statutory provisions of the Succession Act, and it reflected the importance of considering all relevant circumstances when determining whether to extend the time limit for such applications.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established