Bird v Bird

[2002] QSC 202

SUPREME COURT OF QUEENSLAND

CITATION:

Bird v Bird [2002] QSC 202

PARTIES:

ALAN LINDSAY BIRD
(applicant)
v
LAURIE WILLIAM BIRD and WILLIAM JOHN BIRD as executors of the estate of CLYDE RUSSEL BIRD deceased
(respondent)

FILE NO/S:

SC 5774 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

18 July 2002

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2002

JUDGE:

White J

ORDER:

The application for an extension of time be refused.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – whether the applicant gives a satisfactory explanation for the delay – whether the applicant was left without adequate provision under the will

Family Provision Act 1982 (NSW)
Succession Act 1981

Clayton v Aust (1993) 9 WAR 364
Re Salmon (deceased) [1981] Ch 170
Re Terlier (deceased) [1959] QWN 5
Re Walker [1967] VR 890
Singer v Berhouse (1994) 181 CLR 201
Warren v McKnight (1996) 40 NSWLR 390

COUNSEL:

Mr P Hackett for the applicant
Mr D Mullins for the respondent

SOLICITORS:

John M O’Connor & Company for the applicant
Primrose Cooper Cronin Rudkin for the respondent

1. This is an application for an extension of time in which to bring an application for provision from the estate of Clyde Russel Bird pursuant to s 41(8) of the Succession Act 1981. The title of the respondent to the application is incorrect. Leave was given at the hearing to amend the application and all other documents so that the respondent is “Laurie William Bird and William John Bird as executors of the estate of Clyde Russel Bird deceased” which is reflected in the title to these reasons.

1. The applicant who is aged 49 years is the only child and son of the late Clyde Russel Bird who died in Queensland on 10 April 2001.  The testator’s wife and applicant’s mother died in 1994.  Probate of his will was granted on 10 July 2001 to his named executors.  Those executors are the nephews of the deceased aged 42 and 39 respectively.  They farm a number of properties in the Gold Coast Hinterland, at Mundoolan and near Beaudesert.

1. Section 41(8) of the Succession Act 1981 provides:

“Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.”

Accordingly, any application pursuant to s 41(1) of the Succession Act needed to have been commenced by 10 January 2002.  This application was filed on 26 June 2002 and is thus five and a half months late.  The application for extension of time is strenuously opposed by the executors.

1. The will is a complex, detailed and carefully drawn document.  It makes a cash gift of $5,000 to a…