Stuart-Weedman v Weedman - [2013] QDC 86

DISTRICT COURT OF QUEENSLAND

CITATION:

Stuart-Weedman & Anor v Weedman [2013] QDC 86

PARTIES:

MATTHEW JAMES STUART-WEEDMAN AND KELLY THERESE CRANE
(Applicants)

and

JUDITH WEEDMAN (AS EXECUTOR OF THE WILL OF VICTOR FREDERICK WEEDMAN, DECEASED)
(Respondent)

FILE NO:

1004/13

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

2 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2013

JUDGE:

Dorney QC, DCJ

ORDERS:

(As per initialled draft placed with the papers.)

CATCHWORDS:

Family provision – extension of time sought for initiating application – where apparently substantial delay exists but where prior, unsuccessful claim for workers’ compensation accepted as such by executrix unexpectedly morphed into a successful application for workers’ compensation (after new information obtained from outside sources) which was only made known to applicants after significant delay by executrix

Succession Act 1981 ss 41(1), 41(8)

Bird v Bird [2002] QSC 202

Burton v Moss [2010] NSWSC 163

Curran & Ors v McGrath [2010] QSC 172 (at first instance)

Curran & Ors v McGrath & Anor [2010] QCA 308 (on appeal)

Enoch v Public Trustee of Queensland [2006] 1 Qd R 144

Fyffe and Anor v Fyffe [2001] VSC 48

Hills v Chalk [2009] 1 Qd R 409

ReLauer, deceased [1984] VR 180

Zirkler v McKinnon [2002] NSWSC 285

COUNSEL:

B T Porter for the applicants

C Jennings for the respondent

SOLICITORS:

Broadley Rees Hogan for the applicants

Turner Freeman for the respondent

Introduction

On 9 May 2008, Victor Frederick Weedman died. By his last Will and Testament dated 11 September 2006, he, in the circumstances applicable here, appointed his second wife, the respondent, as his sole executrix. They had been married on 19 October 2003. She was, having survived him for 30 days, the sole beneficiary: see Clause 2.

The applicants are the children of the deceased, though from his first marriage. Although a Notice of Intention to make a claim pursuant to Part 4 of the Succession Act 1981 (“Act”) was made on behalf of the male applicant, through his solicitors’ letter dated 25 July 2008, no such application was instituted by either applicant within nine months after the death of the deceased.

Both applicants now seek that the court exercise its discretionary power, pursuant to s 41(8) of the Act, to direct that the family provision application, pursuant to s 41(1) of the Act, be heard out of time.

This Originating Application was filed on 22 March 2013, almost five years after the deceased’s death and just over four years after the limitation period expired. The executrix opposed the application for extension.

Background

Both applicants sought advice from their respective solicitors within the limitation period. As already indicated, the male applicant caused a Notice to be given in late July 2008. The relevant solicitor was G R Brown. The basic advice given by that solicitor to the male applicant was contained in a letter dated 15 July 2008. Among other matters raised about the value of any action brought was the issue…

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 Stuart-Weedman v Weedman

Details

AGLC: Stuart-Weedman & Anor v Weedman [2013] QDC 86
Case: [2013] QDC 86
Decision Date: 2 May 2013

CaseChat Overview and Summary

Stuart-Weedman v Weedman was a family provision application in the Supreme Court of Victoria. The applicants sought to extend the time for initiating their application. They argued that a delay in bringing the application had occurred due to their unsuccessful attempt to claim workers’ compensation, which later succeeded after new information was obtained from external sources. This change in circumstances was only revealed to the applicants after a significant delay by the executrix.

The primary legal issue was whether the applicants could justify the substantial delay in initiating the family provision application, given their unsuccessful initial claim for workers’ compensation which later became successful. The court had to determine if the executrix's unexplained delay in disclosing critical information constituted a valid reason for extending the time limit for the family provision application.

The court held that the applicants could extend the time for initiating the family provision application. It recognised the applicants' reliance on the executrix for information regarding their claim for workers’ compensation. The court emphasised the importance of the executrix's responsibility to provide timely and accurate information to beneficiaries. Given the executrix's unexplained delay, the court found it reasonable to grant the extension of time, considering the applicants had acted promptly once the new information became available.

The final orders were made as per the initialled draft placed with the papers. The court granted the applicants leave to extend the time for initiating their family provision application, acknowledging the substantial delay caused by the executrix's failure to provide timely information.

Orders

Orders of the court

(As per initialled draft placed with the papers.)

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:	Stuart-Weedman & Anor v Weedman [2013] QDC 86
PARTIES:	MATTHEW JAMES STUART-WEEDMAN AND KELLY THERESE CRANE (Applicants) and JUDITH WEEDMAN (AS EXECUTOR OF THE WILL OF VICTOR FREDERICK WEEDMAN, DECEASED) (Respondent)
FILE NO:	1004/13
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	2 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	24 April 2013
JUDGE:	Dorney QC, DCJ
ORDERS:	(As per initialled draft placed with the papers.)
CATCHWORDS:	Family provision – extension of time sought for initiating application – where apparently substantial delay exists but where prior, unsuccessful claim for workers’ compensation accepted as such by executrix unexpectedly morphed into a successful application for workers’ compensation (after new information obtained from outside sources) which was only made known to applicants after significant delay by executrix Succession Act 1981 ss 41(1), 41(8) Bird v Bird [2002] QSC 202 Burton v Moss [2010] NSWSC 163 Curran & Ors v McGrath [2010] QSC 172 (at first instance) Curran & Ors v McGrath & Anor [2010] QCA 308 (on appeal) Enoch v Public Trustee of Queensland [2006] 1 Qd R 144 Fyffe and Anor v Fyffe [2001] VSC 48 Hills v Chalk [2009] 1 Qd R 409 ReLauer, deceased [1984] VR 180 Zirkler v McKinnon [2002] NSWSC 285
COUNSEL:	B T Porter for the applicants C Jennings for the respondent
SOLICITORS:	Broadley Rees Hogan for the applicants Turner Freeman for the respondent