Kay v Kreis - [2017] QSC 151

SUPREME COURT OF QUEENSLAND

CITATION:

Kay & another v Kreis [2017] QSC 151

PARTIES:

YVONNE MARIE KAY
(applicant)
ALBERT DE VIVO
(applicant)
v
GINA MARY KREIS

(respondent)

FILE NO/S:

SC No 11998 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for an extension of time within which to commence a family provision

DELIVERED ON:

14 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2017

JUDGE:

Holmes CJ

ORDER:

Application for extension of time within which to commence a family provision application dismissed.

CATCHWORDS:

WILLS AND ESTATES – TIME LIMITATIONS - where the testator died in December 2006 –where s 41(8) of the Succession Act 1981 (Qld) requires a claim for family provision to be commenced within nine months of the testator’s death, unless the Court otherwise directs – where the applicants commenced proceedings almost ten years after the testator’s death – whether the applicants have demonstrated an arguable case – whether the applicants have sufficiently explained their delay – whether the respondent has suffered prejudice by reason of the delay – whether justice requires an extension of time

COUNSEL:

C A Brewer for the applicant
J A Sheean for the respondent

SOLICITORS:

De Groots Wills & Estates Lawyers for the applicant

Blake Topping Solicitors for the respondent

HOLMES CJ: The applicants, Mrs Kay and Mr Devivo, who are brother and sister, seek the exercise of the Court’s discretion to permit them to commence a family provision application in respect of the estate of their father, Mario De Vivo (to whom I shall refer as “the testator”). He died on 4 December 2006. They filed their application for provision on 17 November 2016. Section 41(8) of the Succession Act 1981 requires proceedings to be instituted within nine months after the death of the person against whose estate the claim is made, unless the court “otherwise directs”.
Among considerations relevant to the exercise of discretion under s 41(8) are: the sufficiency of the explanation of delay in making a claim; any prejudice to the beneficiaries; any unconscionable conduct by the applicant; and the strength of the applicant’s case.[1]
[1] Warren v McKnight (1996) 40 NSWLR 390 at 394; Hills v Chalk [2009] 1 Qd R 409 at [75].
The will and the estate assets
The respondent, Mrs Kreis, is the daughter of a later relationship of the testator and is the applicants’ half-sister, their junior by more than two decades. By the last in a series of wills, made in April 2001, the testator appointed Mrs Kreis as his executor and made her the sole beneficiary of his estate. In an addendum to the will he explained his decision, making some assertions about the conduct of his wife (the applicants’ mother), saying that he had assisted his children by employing them in his motel business, noting the particular needs of Mrs Kreis, and observing that her half-siblings had treated her with distance and contempt. Mr Devivo received a copy of the will in the same year it was made, and was aware…

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 Kay v Kreis

Details

AGLC: Kay v Kreis [2017] QSC 151
Case: [2017] QSC 151
Decision Date: 14 July 2017

CaseChat Overview and Summary

In Kay v Kreis, the applicants, the children of the deceased, sought an extension of time to commence a family provision application against the estate of their father, who died in December 2006. The Succession Act 1981 (Qld) stipulates that claims for family provision must be initiated within nine months of the testator’s death, unless the court otherwise directs. The applicants filed their proceedings almost ten years after the testator’s passing. The court was tasked with determining whether the applicants had presented a viable case, adequately explained their delay, and whether the respondent had been prejudiced by this delay, as well as whether justice demanded an extension of time.

The court examined the statutory requirement under section 41(8) of the Succession Act 1981 (Qld), which mandates strict adherence to the nine-month timeframe for family provision claims unless the court exercises its discretion to extend it. The applicants argued that they had a legitimate reason for the delay and did not prejudice the respondent. However, the court found that the applicants had not provided sufficient evidence to justify the delay. Furthermore, the court determined that the respondent had indeed suffered prejudice due to the late filing of the claim. Consequently, the court concluded that the applicants had not demonstrated an arguable case and that justice did not warrant an extension of time.

The applicants’ application for an extension of time to bring a family provision application was dismissed. The court held that the applicants had failed to establish a compelling reason for the delay and that the respondent had been prejudiced by the late filing of the claim. Consequently, the court found that it was not appropriate to exercise its discretion to extend the time limit.

Orders

Orders of the court

Application for extension of time within which to commence a family provision application dismissed.

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:	Kay & another v Kreis [2017] QSC 151
PARTIES:	YVONNE MARIE KAY (applicant) ALBERT DE VIVO (applicant) v GINA MARY KREIS (respondent)
FILE NO/S:	SC No 11998 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application for an extension of time within which to commence a family provision
DELIVERED ON:	14 July 2017
DELIVERED AT:	Brisbane
HEARING DATE:	26 April 2017
JUDGE:	Holmes CJ
ORDER:	Application for extension of time within which to commence a family provision application dismissed.
CATCHWORDS:	WILLS AND ESTATES – TIME LIMITATIONS - where the testator died in December 2006 –where s 41(8) of the Succession Act 1981 (Qld) requires a claim for family provision to be commenced within nine months of the testator’s death, unless the Court otherwise directs – where the applicants commenced proceedings almost ten years after the testator’s death – whether the applicants have demonstrated an arguable case – whether the applicants have sufficiently explained their delay – whether the respondent has suffered prejudice by reason of the delay – whether justice requires an extension of time
COUNSEL:	C A Brewer for the applicant J A Sheean for the respondent
SOLICITORS:	De Groots Wills & Estates Lawyers for the applicant Blake Topping Solicitors for the respondent