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Frey v Frey

Frey v Frey

Case [2009] QSC 43 9 March 2009

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SUPREME COURT OF QUEENSLAND

CITATION:

Frey & Anor v Frey & Anor (as personal representatives of the estate of HE Frey, dec’d) & Anor [2009] QSC 43

PARTIES:

LEILA FREY
(first applicant)

and

EDWARD FREY
(second applicant)

v

LEILA FREY and LYNDON FREY as personal representatives of the estate of Henry Edward Frey (deceased)
(first respondent)

and

RICHARD HENRY FREY
(second respondent)

FILE NO:

5012 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11, 12, 15, 16, 17 December 2008

JUDGE:

A Lyons J

ORDER:

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – discretion of court – where application was made out of time – where application made to extend time within which to apply for further and better provision out of estate – where distribution of estate not complete – where substantial delay – whether acceptable explanation for delay – where continuing negotiations caused delay – where no evidence of prejudice to existing beneficiaries – where application refused for first applicant – where application granted for second applicant.

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRINCIPLES UPON WHICH RELIEF GRANTED – CLAIMS BY SPOUSE – the testator’s wife made an application for provision out of the estate pursuant to Part 4 of the Succession Act 1981 (Qld) – whether, and to what extent, further and better provision should be made for the testator’s wife under the Act – financial and material circumstances of applicant – whether Plaintiff has been left without adequate provision for her proper maintenance – where provision found to be sufficient.

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRINCIPLES UPON WHICH RELIEF GRANTED – APPLICATION OF CHILDREN – ADULT SONS – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – DUTY OF TESTATOR – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – the testator’s son made an application for provision out of the estate pursuant to Part 4 of the Succession Act 1981 (Qld) – whether, and to what extent, further and better provision should be made for the testator’s son under the Act – where provision found to be insufficient – prima facie case – where breach of moral duty by testator – where application based upon lack of recognition of work on family property – orders made for further and better provision.

Partnerships Act 1891 (Qld)
Succession Act 1981 (Qld) s 41(8)
Water Act 2000 (Qld) s 198, s 228

Allardice v Allardice (1910) 29 NZLR 959
Amos v Amos [1966] VR 442
Anderson v Teboneras [1990] VR 527
Baker v Williams & Brunner (as executors of the estate of Baker) [2007] QSC 226
Bladewell v Davis [2004] NSWCA 170
Blore v Lang [1960] 104 CLR 124
Cropley v Cropley [2002] NSWSC 3349
Easterbrook v Young (1977) 136 CLR
Enoch v Public Trustee of Queensland [2005] QSC 194
Higgins v Higgins [2005] QSC 110
Hills v…

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 Frey v Frey

Details

AGLC: Frey v Frey [2009] QSC 43
Case: [2009] QSC 43
Decision Date: 9 March 2009

CaseChat Overview and Summary

The case of Frey v Frey involves two applicants, the testator's wife and her two adult sons, contesting the distribution of the estate. The wife, Frey, seeks additional provision from the estate under Part 4 of the Succession Act 1981 (Qld), while the sons, also Frey, argue that the testator failed to make sufficient provision for them. The matter was heard in the Supreme Court of Queensland.

The court was tasked with determining whether the wife had been left without adequate provision for her proper maintenance and if the sons had been left with insufficient provision due to a breach of the testator's moral duty. The court also needed to consider the applications for extensions of time made by both applicants, given the substantial delays in making the applications and the ongoing negotiations between the parties.

The court found that the wife's application was made out of time and was refused. The wife had not provided an acceptable explanation for the delay, and there was no evidence that the existing beneficiaries were prejudiced by the delay. Conversely, the court granted the sons' application for an extension of time, as there was evidence of ongoing negotiations that caused the delay, and no evidence of prejudice to the existing beneficiaries. The court then considered the principles upon which relief should be granted under the Succession Act, determining that the wife had been left with adequate provision, but the sons had not been left with sufficient provision due to the testator's failure to recognise their work on the family property. Consequently, the court ordered further and better provision for the sons.

The court's final orders were to grant the sons' application for further and better provision and to refuse the wife's application for additional provision. The court did not grant the sons' application for an extension of time to apply for further and better provision, as the distribution of the estate had been completed.

Orders