Holman v McClelland - [2003] QSC 110

SUPREME COURT OF QUEENSLAND

CITATION:

Holman v McClelland & Ors [2003] QSC 110

PARTIES:

TAMAR ANN HOLMAN
(applicant)
v
ANN LOVEDAY TREVENEN McCLELLAND and
NICHOLAS JOHN HOLMAN (as executors of the estate of NICHOLAS PAUL TREVENEN HOLMAN, deceased)
(respondents)

FILE NO/S:

SC No 10900 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2003

JUDGE:

Mackenzie J

ORDER:

Application dismissed
Costs to be assessed

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – where claim that testator failed to make sufficient provision for applicant spouse – where limitation period for bringing action had expired – where testator and applicant had lived separately and pursued their own interests for extended period prior to testator’s death – where contentious evidence of provision being made for applicant otherwise than in the will – where contentious evidence of their interests being finalised previously – where applicant had changed solicitors – where explanation for such and failure to comply with time limit deficient – whether merits of the case dictated extension of time – whether satisfactory explanation for delay in commencing proceedings

Succession Act 1981 (Qld), s 41(8)

Bird v Bird [2002] QSC 202, cited
Clayton v Australia (1993) 9 WAR 364, cited
Re: Terlier, dec’d, [1959] QWN 5, cited
Singer v Berghouse (No 2) (1994) 181 CLR 201, applied
Warren v McKnight (1996) 40 NSWLR 390, cited

COUNSEL:

D Murphy for the applicant
R D Peterson for the respondent

SOLICITORS:

Anderssen & Company for the applicant
Mallesons Stephen Jaques for the respondent

This is an application for a direction under s 41(8) of the Succession Act 1981 (Qld) that an application for further and better provision from the testator’s estate be heard notwithstanding that the application will have been instituted more than nine months after the date of death of the deceased. The testator died on 24 December 2001. By his will executed on 27 April 1999 the applicant, who is the testator’s wife, is entitled to 10 per cent of the residue of the estate after certain specific bequests to her and others. Each of the daughter of the testator, her children, his son and his children were entitled to 20 per cent of the residue. The remaining 10 per cent was to be divided between the Salvation Army and medical research. The applicant wishes to exonerate the last mentioned 10% share from any order made. It is estimated that her share of the estate would be about $120,000. It is convenient also to mention that there is a trust fund of which the applicant is not a beneficiary, believed to be worth about $8,000,000. However, the evidence suggests that this trust fund was set up for tax planning purposes at about the time he sold his share in a family business in the United Kingdom, having regard to the state of the…

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 Holman v McClelland

Details

AGLC: Holman v McClelland [2003] QSC 110
Case: [2003] QSC 110
Decision Date: 8 May 2003

CaseChat Overview and Summary

In the matter of Holman v McClelland, the court was called upon to address a dispute arising from a claim by the applicant, who sought to challenge the sufficiency of provisions made in a deceased's will. The applicant argued that the deceased had not made sufficient provision for them in their will, despite the passage of the statutory limitation period for such claims. The deceased and the applicant had lived apart and pursued separate interests for an extended period before the deceased's death, which further complicated the claim. The applicant's application for an extension of the time to bring the action was contentious, with significant disputes over whether provisions had been made for the applicant outside of the will and whether their interests had been settled previously. The applicant had also changed legal representation, and the explanation provided for the delay in commencing the proceedings was deemed insufficient.

The court was required to determine whether the merits of the case warranted an extension of the time limit for bringing the action, and if the explanation for the delay was satisfactory. The legal issues included the interpretation of the statutory limitation period for family provision claims, the criteria for extending that period, and the adequacy of the applicant's explanation for the delay. The court had to consider the evidence presented and the circumstances surrounding the relationship between the deceased and the applicant, including their separation and the finalisation of their interests prior to the deceased's death.

In evaluating the application, the court found that the merits of the case did not compel an extension of the time limit. The explanation provided for the delay in bringing the proceedings was considered deficient, and the applicant's change in legal representation was noted without a satisfactory justification for the delay. Consequently, the court dismissed the application and ordered that the costs of the proceeding be assessed. The decision underscored the importance of timely and adequate explanations when seeking extensions in family provision and maintenance cases, particularly where the parties have lived separate lives for an extended period.

Orders

Orders of the court

Application dismissed

Costs to be assessed

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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CITATION:	Holman v McClelland & Ors [2003] QSC 110
PARTIES:	TAMAR ANN HOLMAN (applicant) v ANN LOVEDAY TREVENEN McCLELLAND and NICHOLAS JOHN HOLMAN (as executors of the estate of NICHOLAS PAUL TREVENEN HOLMAN, deceased) (respondents)
FILE NO/S:	SC No 10900 of 2002
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 May 2003
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2003
JUDGE:	Mackenzie J
ORDER:	Application dismissed Costs to be assessed
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – where claim that testator failed to make sufficient provision for applicant spouse – where limitation period for bringing action had expired – where testator and applicant had lived separately and pursued their own interests for extended period prior to testator’s death – where contentious evidence of provision being made for applicant otherwise than in the will – where contentious evidence of their interests being finalised previously – where applicant had changed solicitors – where explanation for such and failure to comply with time limit deficient – whether merits of the case dictated extension of time – whether satisfactory explanation for delay in commencing proceedings Succession Act 1981 (Qld), s 41(8) Bird v Bird [2002] QSC 202, cited Clayton v Australia (1993) 9 WAR 364, cited Re: Terlier, dec’d, [1959] QWN 5, cited Singer v Berghouse (No 2) (1994) 181 CLR 201, applied Warren v McKnight (1996) 40 NSWLR 390, cited
COUNSEL:	D Murphy for the applicant R D Peterson for the respondent
SOLICITORS:	Anderssen & Company for the applicant Mallesons Stephen Jaques for the respondent