Buckman v Lindbeck - [2018] ACTSC 313

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Buckman v Lindbeck
Citation:	[2018] ACTSC 313
Hearing Date:	5 November 2018
DecisionDate:	9 November 2018
Before:	McWilliam AsJ
Decision:	See [36]
Catchwords:	FAMILY PROVISION – application to extend the time in which to commence proceedings seeking family provision – where plaintiff unaware of terms of will – where claim for family provision previously made by another beneficiary without plaintiff’s knowledge – where estate not fully distributed and no substantial prejudice to other beneficiaries – application granted
Legislation Cited:	Family Provisions Act 1969 (ACT) ss 7(1), 8(2), 8(3), 9(2)
Cases Cited:	Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 Hills v Chalk [2009] 1 Qd R 409 Re Guskett [1947] VLR 212 Re Marland [1957] VR 338 Re Nassim [1984] VR 51 Roberts v Stern [2017] ACTSC 182 Smith v Public Trustee of the Australian Capital Territory [2012] ACTSC 4; 6 ACTLR 126 Warren v McKnight (1996) 40 NSWLR 390 Young v Kestel [2003] WASCA 190
Texts Cited:	Leonie Englefield, Australian Family Provision Law (Thomson Reuters, 2011)
Parties:	Paul Robert Buckman (Plaintiff) Ruth Louise Lindbeck, Timothy Michael Buckman and Rachael Anne Buckman as executors of the Estate of the late Peter Edward Buckman (Defendants)
Representation:	Counsel Mr W Sharwood (Plaintiff) Mr J Raine (Defendants)
Solicitors Maliganis Edwards Johnson (Plaintiff) Griffin Legal (Defendants)
File Number(s):	SC 392 of 2018

Before the Court is an originating application filed 28 August 2018 seeking to extend the time in which to apply for family provision out of the estate of the late Peter Edward Buckman (deceased) who died on 15 June 2016.

Mr Paul Buckman will become the plaintiff if leave is granted to extend the time for bringing the application. He is one of five children of the deceased.

Ms Ruth Lindbeck, Mr Timothy Buckman and Ms Rachael Buckman are opposing the application. They are the three executors named in the deceased’s will, executed on 17 December 2015 (Will). Probate was granted to the defendants in respect of the Will on 7 December 2016.

The other child of the deceased, Mr Anthony Buckman, is not presently a party to the proceedings.

For convenience, and without any intending any lack of respect, I will refer to the parties by their first names.

The evidence led on the application was through affidavits of the parties and the legal representative for the plaintiff, read without objection and admitted as unchallenged evidence.

The Court’s power to extend time

Section 9 of the Family Provision Act 1969 (ACT) (the Act) governs the time limits for the making of an application for family provision, and the circumstances in which the time may be extended. It is in the following terms:

Time for making application under s 8 (1)
(1)Subject to subsection (2), an application for an order under section 8 shall be made within a period of 6 months after the date when administration in respect of…

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 Buckman v Lindbeck

Details

AGLC: Buckman v Lindbeck [2018] ACTSC 313
Case: [2018] ACTSC 313
Decision Date: 9 November 2018

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Buckman v Lindbeck involved an application by the plaintiff, Buckman, to extend the time limit within which she could commence proceedings under the Family Provision Act 1969. The defendant, Lindbeck, was the executor of the estate of the deceased, who was Buckman's mother. The dispute centred on the inheritance provisions in the deceased's will, which Buckman claimed were unjust, given her reliance on her mother for financial and emotional support over the years. The plaintiff sought relief under the Family Provision Act, arguing that the provisions in the will did not make reasonable financial provision for her.

The primary legal issue before the court was whether the plaintiff was entitled to an extension of time to bring her claim for family provision, given that she had been unaware of the terms of the will until after it had been executed. The court had to consider whether there were any exceptional circumstances justifying the delay, particularly in light of another beneficiary's previous claim for family provision, which had been settled without the plaintiff's knowledge. Additionally, the court needed to assess whether the estate had been fully distributed and if there was any substantial prejudice to other beneficiaries if the time extension was granted.

The court determined that the plaintiff's unawareness of the will's terms until after her mother's death constituted exceptional circumstances warranting an extension of time. The fact that the estate had not been fully distributed and that no other beneficiaries would be substantially prejudiced by the delay further supported the grant of the extension. The court recognised the importance of the principle that family provision claims should be heard while the estate is still in a state where the court can make an effective assessment of the claims. Given these factors, the court ruled in favour of the plaintiff, granting the application to extend the time limit for bringing her family provision claim. The final orders reflected this decision, allowing the plaintiff to proceed with her claim within the extended timeframe.

Orders

Orders of the court

See [36]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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