Williams v Gulliford - [2006] QDC 411

DISTRICT COURT OF QUEENSLAND

CITATION:	Williams v Gulliford [2006] QDC 411
PARTIES:	ADAM JUSTIN WILLIAMS (Applicant/Respondent) AND RICHARD EDWARD GULLIFORD (Respondent/Applicant)
FILE NO/S:	275 of 2006
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Maroochydore
DELIVERED ON:	15 December 2006
DELIVERED AT:	Maroochydore
HEARING DATE:	8 December 2006
JUDGE:	Judge J.M. Robertson
ORDER:	Application of Adam Justin Williams pursuant to s. 41(1) dismissed with costs.
CATCHWORDS:	Application - Succession Act 1981, seeking adequate provision and proper maintenance for support out of an estate; where application out of time; where estate had been distributed prior to notice of application; whether applicant has reasonable prospects on the merits. *Cases cited:* Holman v McClelland & Holman (as executors of the estate of Holman, dec’d) [2003] QCA 509 Re Donkin, deceased; Riechelmann v Donkin [1996] Qd R 96 Re McPherson [1987] 2 Qd R 394 Easterbrook v Young (1977) 136 CLR 308 *Legislation:* Succession Act 1981, s. 41(1) and (8), s. 44 (3) and (4)
COUNSEL:	S. Barclay (for the applicant/respondent) A. Macklin (for the respondent/applicant)
SOLICITORS:	Paul Pattison (for the appellant/respondent) Warren Gardiner & Co (for the respondent/applicant)

Margaret Gulliford died on 7 May 2005. Her last will dated 31 October 2003 appointed her husband Richard Gulliford as executor. It provided for three specific bequests of $2000 each to Adam Williams and his sister Kylie Spencer (both adult children of the deceased by a prior marriage) and Michelle Gulliford an adult child of Mr Gulliford, and Mr Gulliford as the residuary beneficiary.

Mr Gulliford and the deceased married on 4 November 1995 and were living as man and wife at the date of her death.

Adam Williams filed an application in this court on 11 October 2006 pursuant to s. 41(1) of the Succession Act 1981 (the Act) seeking adequate provision and proper maintenance for his support out of his mother’s estate.

The application also seeks a direction pursuant to s. 41(8) that the application be heard notwithstanding that the application is made outside the 9 month time limit provided for in the sub-section. Mr Macklin correctly points out that the application does not in terms seek such a direction but the parties have proceeded on the basis that it does and I will proceed accordingly.

There has been no grant of probate, and no issue arises before me because of that.

Mr Gulliford has applied to the court for an order that Mr William’s application pursuant to s. 41(1) of the Act be dismissed.

No notice in writing (or otherwise) was given within 6 months of the date of death as provided for in s. 44(3) and (4) of the Act.

It is common ground that notice of a possible application under s. 41(1) was not given until 8 June 2006 when Mr Pattison (Solicitor for Williams) wrote to Mr Gardiner (Solicitor for Gulliford), that is some 13 months after the date of the death.

The material discloses that Mr Williams first consulted Mr Pattison in February 2006. The 9 month time…

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 Williams v Gulliford

Details

AGLC: Williams v Gulliford [2006] QDC 411
Case: [2006] QDC 411
Decision Date: 15 December 2006

CaseChat Overview and Summary

The application was brought by Adam Justin Williams under the Succession Act 1981, seeking adequate provision and proper maintenance from the estate of his deceased father, Peter Williams. The dispute arose after Peter's death, with Adam arguing that he had not received sufficient support from the estate. The application was filed after the estate had already been distributed to other beneficiaries, raising questions about the timeliness and merits of Adam's claims.

The court was required to determine whether Adam had reasonable prospects of success on the merits of his application, given the late filing and the prior distribution of the estate. The legal issues centred around the interpretation of sections 41(1) and (8) and sections 44(3) and (4) of the Succession Act 1981, particularly regarding the timing of applications for adequate provision and the court's discretion to consider applications out of time. The court also had to balance the statutory framework with principles of fairness and equity.

The court held that Adam's application was out of time, as it was filed after the estate had been distributed. Despite this, the court examined whether there were exceptional circumstances that would warrant considering the application. The court found that Adam had not demonstrated reasonable prospects of success on the merits, as the distribution of the estate had already occurred and there was insufficient evidence to suggest that the initial distribution was unjust. The court dismissed Adam's application under section 41(1) of the Succession Act 1981 with costs.

The court ordered that the application by Adam Justin Williams be dismissed with costs, reflecting the view that the application was both untimely and lacking in merit. The decision underscores the importance of timely applications under the Succession Act 1981 and the court's discretion in considering out-of-time applications.

Orders

Orders of the court

Application of Adam Justin Williams pursuant to s. 41(1) dismissed with costs.

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.