Vickers v Pickering

[2016] QDC 58

DISTRICT COURT OF QUEENSLAND

CITATION:

Vickers v Pickering [2016] QDC 58

PARTIES:

NOELA FRANCES VICKERS
(first applicant)

MARIA ANNE GEARING
(second applicant)

v

HELEN PICKERING
(first respondent)

JULIE LEANNE WISEMAN
(second respondent)

FILE NO/S:

BD 4560/2015

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2015

JUDGE:

McGill SC DCJ

ORDER:

Order that the first respondent be joined as a respondent in her personal capacity.  Application otherwise dismissed. Order the first respondent to pay the costs of the application personally.

CATCHWORDS:

TESTATORS FAMILY MAINTENANCE – Time for making application – whether application to be dismissed summarily – effect of distribution of estate –distribution without notice after invitation to negotiate – possibility of estoppel – summary dismissal refused.

Succession Act 1981 s 41, 44(3).

Atthow v McElhone [2010] QSC 177 – followed.

Baker v Williams [2007] QSC 226 – cited.
Blunden v Blunden [2008] SASC 286 – considered.
Re Crowley [1949] St R Qd 189 – cited.
Curran v McGrath [2010] QCA 308 – applied.
Re Donkin dec [1966] Qd R 96 – considered.
Re Donohue dec [1933] NZLR 477 – cited.
Easterbrook v Young (1977) 136 CLR 308 – cited.
Re Faulkner [1999] 2 Qd R 49 – considered.
Guardian Trust and Executors Company of New Zealand v Public Trustee of New Zealand [1942] AC 115 – cited.
Re Hill (Supreme Court, Carter J, OS 1079/1987, unreported, BC 8802419) – cited.
Holdway v Arcuri Lawyers [2009] 2 Qd R 18 – considered.
Lindsay v Smith [2002] 1 Qd R 610 – considered.
Re Lowe dec [1964] QWN 37 – cited.
Re McPherson [1987] 2 Qd R 394 – cited.
Morris v FAI General Insurance Co Ltd [1996] 1 Qd R 495 – considered.
Newton, Bellamy and Wolfe v State Government Insurance Office [1986] 1 Qd R 431 – cited.
Public Trustee v Kidd [1931] NZLR 1 – cited.
Re Simson dec [1950] Ch 38 – cited.
Re Winwood dec [1959] NZLR 246 – cited.
Younan v Younan (No. 2) [2015] VSC 549 – applied.

COUNSEL:

A B Fraser for the applicants.

R D Williams for the first respondent.

SOLICITORS:

O’Sullivan’s Law Firm for the applicants.

Smith & Stanton Lawyers for the first respondent.

1. Norman Alfred Knight died on 27 December 2014.  He was survived by four adult daughters, all children of his marriage to a wife who predeceased him.  By his last will dated 12 November 1992 he appointed the first respondent the executor of his will, and divided his estate equally between such of the first and second respondents as survived him.  No provision was made for the applicants, who had a different mother.  On 23 November 2015 the applicants applied for provision out of the estate of the deceased under the Succession Act 1981 s 41. By an application filed 7 December 2015, the first respondent sought the summary dismissal of that application, essentially on the ground that effectively all of the estate had already been…