Jenal v Wolfenden - [2009] QDC 127

DISTRICT COURT OF QUEENSLAND

CITATION: Jenal v Wolfenden [2009] QDC 127

PARTIES:
CHERYL MAREE JENAL
(Applicant)

v

SANDRA KAY WOLFENDEN
(Respondent)

FILE NO: 52 of 2009

PROCEEDING: Application for extension of time – Succession Act

DELIVERED ON: 13/05/2009

DELIVERED AT: Southport

HEARING DATE: 01/05/2009

JUDGE: C.F. Wall Q.C.

ORDER: Application for extension of time granted up to and including 9^th February 2009. Applicant to pay Respondents costs of and incidental to the proceeding to be assessed on the standard basis unless agreed.

CATCHWORDS: SUCCESSION ACT s41(8) – where proceedings for provision were not instituted within 9 months after the death of the deceased - application for extension of time – necessity for applicant to establish an adequate explanation for the delay and an arguable case on the merits – relevant considerations.

LEGISLATION: Succession Act 1981 (Qld), s.41(8).

CASES: Hills v Chalk v Others 2008 QCA 159

COUNSEL: Applicant: Mr C Forrest
Respondent: Mr M Campbell

SOLICITORS: Applicant: O’Reilly Sochacki Lawyers
Respondent: National Seniors Lawyers

HIS HONOUR: This is an application for an order that the

applicant's application for provision filed on the 9th of

February 2009 be heard and determined, notwithstanding that it

was instituted outside the nine-months' time limit for making

the application. See section 41(8) Succession Act.

The deceased is Margaret Ann Myers. The following details are

not in dispute and are taken from the applicant's outline of

argument.

"2.3 The deceased died on 2 September 2007 at 68 years of
age. She was survived by her husband, John Edward Myers, and
their two adult daughters, Marcia Fife, born 17 April 1961
(aged 46 at the deceased's death) and Cheryl Maree Jenal (the
applicant) born 23 May 1962 (aged 45 at the deceased's death).

2.4 The deceased left a will, dated 4 January 2006. The
respondent (unrelated to the deceased but a friend of Marcia
Fife) obtained a Grant of Probate from the Supreme Court of
Queensland on 6 December 2007, being the sole appointed
Executrix and trustee of the will.

2.5 The estate of the deceased is said (by the solicitor
acting for the estate) to consist of the following:-

(i) all of the right, title and interest in the residential
real property appraised to be valued at $295,000 to $305,000;.

(ii) $9,706.11 - being the balance of money at bank after
payment of funeral expenses;.

(iii) a motor car - value $4,000;

(iv) chattels owned jointly with the deceased's husband -
value $1,000.

2.6 By her will, the deceased left a life estate in the
residential real property to her husband, John Edward Myers,
and, upon his death, that property was to be sold and specific
legacies totalling $145,000 were to be paid to five of her
grandchildren (there are eight grandchildren altogether - only
one of the grandchildren left a legacy is a child of the
applicant - the other three children of the applicant were
left nothing by their grandmother) before the total of the
residue was left to the applicant's sister, Marcia…

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 Jenal v Wolfenden

Details

AGLC: Jenal v Wolfenden [2009] QDC 127
Case: [2009] QDC 127
Decision Date: 13 May 2009

CaseChat Overview and Summary

The case of Jenal v Wolfenden involved the applicant, Jenal, seeking an extension of time to bring proceedings under the Succession Act. The respondents, Wolfenden, opposed the application. The dispute centred on whether the applicant had provided an adequate explanation for the delay in bringing the proceedings and whether there was an arguable case on the merits. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the applicant had satisfied the requirements of s41(8) of the Succession Act, which mandates that proceedings for provision must be instituted within nine months of the deceased's death. The court was required to consider the adequacy of the explanation for the delay and the merits of the applicant's case. The primary focus was on whether the applicant's reasons for the delay were sufficient and whether there was a plausible argument on the merits that would warrant the extension of time.

The court found that the applicant had provided a reasonable explanation for the delay, which included factors such as the applicant's illness and the complexity of the estate. The court also considered the merits of the applicant's case and found that there was an arguable case that the applicant was entitled to a provision from the estate. The court was satisfied that the applicant had met the threshold requirements for an extension of time under s41(8) of the Succession Act. Consequently, the court granted the application for an extension of time up to and including 9th February 2009. The applicant was ordered to pay the respondents' costs of and incidental to the proceeding, to be assessed on the standard basis unless otherwise agreed.

Orders

Orders of the court

Application for extension of time granted up to and including 9th February 2009. Applicant to pay Respondents costs of and incidental to the proceeding to be assessed on the standard basis unless agreed.

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:	Jenal v Wolfenden [2009] QDC 127
PARTIES:	CHERYL MAREE JENAL (Applicant) v SANDRA KAY WOLFENDEN (Respondent)
FILE NO:	52 of 2009
PROCEEDING:	Application for extension of time – Succession Act
DELIVERED ON:	13/05/2009
DELIVERED AT:	Southport
HEARING DATE:	01/05/2009
JUDGE:	C.F. Wall Q.C.
ORDER:	Application for extension of time granted up to and including 9^th February 2009. Applicant to pay Respondents costs of and incidental to the proceeding to be assessed on the standard basis unless agreed.
CATCHWORDS:	SUCCESSION ACT s41(8) – where proceedings for provision were not instituted within 9 months after the death of the deceased - application for extension of time – necessity for applicant to establish an adequate explanation for the delay and an arguable case on the merits – relevant considerations.
LEGISLATION:	Succession Act 1981 (Qld), s.41(8).
CASES:	Hills v Chalk v Others 2008 QCA 159
COUNSEL:	Applicant: Mr C Forrest Respondent: Mr M Campbell
SOLICITORS:	Applicant: O’Reilly Sochacki Lawyers Respondent: National Seniors Lawyers