Baker v Williams - [2007] QSC 226

SUPREME COURT OF QUEENSLAND

CITATION:

Baker v Williams & Brunner (as executors of the estate of Baker) [2007] QSC 226

PARTIES:

BRENDAN RODNEY BAKER
(applicant/respondent)
v
GEOFFREY BRIAN WILLIAMS AND TRACEY LEIGH BRUNNER AS EXECUTORS OF THE ESTATE OF RODNEY RAYMOND BAKER
(respondents/applicants)

FILE NO/S:

BS 6640 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

28 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2007

JUDGE:

de Jersey CJ

ORDER:

Order that the respondent’s application filed on 13 April 2006 and amended on 11 August 2006, and brought purportedly under s 41 of the Succession Act 1981, be dismissed, with costs to be assessed

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – CIRCUMSTANCES PRECLUDING RELIEF – where testator left all property to be held by executors on trust for granddaughter – where respondent son of testator made application for provision out of the estate under s 41 Succession Act 1981 (Qld) – where application was made out of time – where respondent had earlier instructed solicitor to make application for provision out of estate, and solicitor had failed to do so – where estate fully administered – whether respondent’s application for provision should be dismissed

Succession Act 1981 (Qld), s 41
Testator’sFamily Maintenance and Guardianship of Infants Act 1916 (NSW), s 4(1), s 5(2A), s 11(3)

Re Burgess [1984] 2 Qd R 379, followed
Re Donkin, deceased; Riechelmann v Donkin [1966] Qd R 96, followed
Easterbrook v Young (1977) 136 CLR 308, distinguished
Holmes v Webb (unreported, Court of Appeal, 18 August 1992, OS 542 of 1989), followed
Re McPherson [1987] 2 Qd R 394, followed
Re Oakley [1986] 2 Qd R 269, followed
Re Parry (unreported, 11 March 1991, 23 of 1990), followed
Re Prufert (unreported, 4 April 1991, OS 123 of 1991), followed

COUNSEL:

G M Egan for the applicant/respondent
M J Eastwood for the respondents/applicants

SOLICITORS:

Bolster & Co for the applicant/respondent
Geoff Williams & Associates for the respondents/applicants

de JERSEY CJ: The applicants are the executors and trustees under the last will of Rodney Raymond Baker. Mr Baker died on 5 August 2003. The applicants were granted probate of the will on 3 November 2003.

The respondent Brendan Rodney Baker is the son of the deceased. Under his will, the deceased left all his property to be held by his executors on trust for his granddaughter Jacquelyn (the respondent’s daughter), provided Jacquelyn survived him and reached the age of 18 years. Jacquelyn is presently 14 years old. The assets of the estate are held by the applicants on trust for Jacquelyn, and that has been the case for some years. It was common ground, on the hearing before me, that the estate had been fully administered.

Shortly after the death of the deceased, the respondent instructed a solicitor to act on his behalf to make an application for provision out of the estate under s 41 of the Succession Act 1981. The solicitor notified the applicants of the respondent’s instructions, by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Williams

Details

AGLC: Baker v Williams & Brunner (as executors of the estate of Baker) [2007] QSC 226
Case: [2007] QSC 226
Decision Date: 28 August 2007

CaseChat Overview and Summary

In the matter of Baker v Williams, the respondent, who is the son of the deceased, applied for provision out of the estate of his father under section 41 of the Succession Act 1981 (Qld). The testator had left all of his property to be held by the executors on trust for his granddaughter. The respondent, who was the son of the deceased, made this application out of time, after the estate had already been fully administered. The respondent had previously instructed a solicitor to make an application for provision from the estate, but the solicitor failed to do so. The court was required to determine whether the respondent's application for provision should be dismissed.

The court examined whether the circumstances precluded relief under section 41 of the Succession Act. It was noted that the application was made out of time and that the estate had already been fully administered. The court also considered that the respondent had previously instructed a solicitor to make an application for provision from the estate, but the solicitor had failed to do so. The court had to decide whether these circumstances precluded the respondent from obtaining relief under the Act. The court held that the circumstances did preclude relief and dismissed the respondent's application.

The court found that the respondent's application for provision out of the estate was made out of time and that the estate had already been fully administered. The court also found that the respondent had previously instructed a solicitor to make an application for provision from the estate, but the solicitor had failed to do so. The court held that these circumstances precluded relief under section 41 of the Succession Act. The court dismissed the respondent's application, with costs to be assessed.

Orders

Orders of the court

Order that the respondent’s application filed on 13 April 2006 and amended on 11 August 2006, and brought purportedly under s 41 of the Succession Act 1981, be dismissed, with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Baker v Williams & Brunner (as executors of the estate of Baker) [2007] QSC 226
PARTIES:	BRENDAN RODNEY BAKER (applicant/respondent) v GEOFFREY BRIAN WILLIAMS AND TRACEY LEIGH BRUNNER AS EXECUTORS OF THE ESTATE OF RODNEY RAYMOND BAKER (respondents/applicants)
FILE NO/S:	BS 6640 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	28 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2007
JUDGE:	de Jersey CJ
ORDER:	*Order that the respondent’s application filed on 13 April 2006 and amended on 11 August 2006, and brought purportedly under s 41 of the Succession Act* 1981, be dismissed, with costs to be assessed**
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – CIRCUMSTANCES PRECLUDING RELIEF – where testator left all property to be held by executors on trust for granddaughter – where respondent son of testator made application for provision out of the estate under s 41 Succession Act 1981 (Qld) – where application was made out of time – where respondent had earlier instructed solicitor to make application for provision out of estate, and solicitor had failed to do so – where estate fully administered – whether respondent’s application for provision should be dismissed Succession Act 1981 (Qld), s 41 Testator’sFamily Maintenance and Guardianship of Infants Act 1916 (NSW), s 4(1), s 5(2A), s 11(3) Re Burgess [1984] 2 Qd R 379, followed Re Donkin, deceased; Riechelmann v Donkin [1966] Qd R 96, followed Easterbrook v Young (1977) 136 CLR 308, distinguished Holmes v Webb (unreported, Court of Appeal, 18 August 1992, OS 542 of 1989), followed Re McPherson [1987] 2 Qd R 394, followed Re Oakley [1986] 2 Qd R 269, followed Re Parry (unreported, 11 March 1991, 23 of 1990), followed Re Prufert (unreported, 4 April 1991, OS 123 of 1991), followed
COUNSEL:	G M Egan for the applicant/respondent M J Eastwood for the respondents/applicants
SOLICITORS:	Bolster & Co for the applicant/respondent Geoff Williams & Associates for the respondents/applicants