Young v Kestel

Case [2003] WASCA 190


YOUNG -v- KESTEL (As Executor of the Will and Estate of DOUGLAS TATE YOUNG (DEC)) [2003] WASCA 190



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 190
THE FULL COURT (WA)
Case No:FUL:11/20033 APRIL 2003
Coram:MCLURE J
EM HEENAN J
22/08/03
49Judgment Part:1 of 1
Result: Appeal allowed
Leave granted to file application out of time
Leave to adduce further evidence refused
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Parties:SUZANNE OLWEN YOUNG
TERENCE ROSS KESTEL (As Executor of the Will and Estate of DOUGLAS TATE YOUNG (DEC))

Catchwords:

Inheritance (Family and Dependants Provision) Act
Appeal from refusal of extension of time for making application
Claim by widow
Large estate
Deceased's financial affairs complex
Partial distribution of estate and other assets to beneficiaries
Application to adduce further evidence on appeal

Legislation:

Inheritance (Family and Dependants Provision) Act 1972
Trustees Act 1962

Case References:

Amos v Amos [1966] VR 442
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
Australian Electrical Electronics Foundry & Engineering Union Western Australia Branch & Ors v Hamersley Iron Pty Ltd (1998) 19 WAR 145
Bank of New South Wales v Murphett [1983] 1 VR 489
Brown v Holt [1961] VR 435
Circosta v Executor Trustee & Agency Co South Australia (1974) 9 SASR 439
Clayton v Aust (1993) 9 WAR 364
Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494
Coffey v Bennett [1961] VR 264
David Securities Pty Ltd & Ors v Commonwealth Bank of Australia (1992) 175 CLR 353
Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374
Easterbrook v Young (1977) 136 CLR 308
Grigoriou v George Nitsos (As Executor of the Estate of Athanasois Nichos) & Ors [1999] WASCA 42
In the Estate of Gough (dec); Gough v Gough (1973) 5 SASR 559
Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548
Ministry of Health v Simpson [1921] AC 251
Paco v Paco (1989) 17 NSWLR 316
Re Claverie (dec) (1970) 2 NSWLR 380
Re Marland (dec) [1957] VR 338
Re Nassin (dec) [1984] VR 51
Re Ruttie [1970] 1 WLR 89
Re Salmon [1981] Ch 167
Sanderson v Metropolitan (Perth) Passenger Transport Trust, unreported; FCT SCt of WA; Library No 950185; 22 March 1995
Vigolo v Bostin & Anor [2002] WASCA 327

Cropley v Cropley [2002] NSWSC 349
Gregory v Hudson [1999] NSWCA 221
Luciano v Rosenblum (1985) 2 NSWLR 65
Nicholls v Zis [2001] WASC 301
Sayer v Sayer [1999] NSWCA 340
Singer v Berghouse (1994) 181 CLR 201
Wilson v Metaxas [1989] WAR 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : YOUNG -v- KESTEL (As Executor of the Will and Estate of DOUGLAS TATE YOUNG (DEC)) [2003] WASCA 190 CORAM : MCLURE J
    EM HEENAN J
HEARD : 3 APRIL 2003 DELIVERED : 22 AUGUST 2003 FILE NO/S : FUL 11 of 2003

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Young v Kestel [2003] WASCA 190
Case
[2003] WASCA 190
Decision Date

CaseChat Overview and Summary

In the case of Young v Kestel, the widow of the deceased, Mrs Young, sought an extension of time to make an application under the Inheritance (Family and Dependants Provision) Act. The deceased's estate was substantial and his financial affairs were complex. Several beneficiaries had already received partial distributions from the estate, and Mrs Young's application was made out of time. The court was required to determine whether Mrs Young should be granted leave to file her application out of time and whether she should be allowed to adduce further evidence on appeal.

The primary legal issue before the court was whether the application was made within a reasonable time and if exceptional circumstances existed that justified the extension of time. The court considered the statutory provisions of the Inheritance (Family and Dependants Provision) Act and the principles of equity, which require fairness and justice in the administration of estates. The court also had to weigh the interests of the widow against those of the other beneficiaries who had already received distributions from the estate. The court determined that while the application was indeed out of time, the circumstances surrounding the case warranted an extension of time. However, the court found that the additional evidence proposed by Mrs Young did not meet the necessary threshold for being considered.

The court allowed the appeal, granting Mrs Young leave to file her application out of time. However, the court refused her leave to adduce further evidence on appeal. The court found that the application was made within a reasonable time, considering the complexity of the deceased's estate and the partial distributions made to other beneficiaries. The court acknowledged the hardship faced by Mrs Young in making the application out of time but found that the evidence proposed did not sufficiently justify its admission. The court's decision recognised the importance of balancing the interests of all parties involved in the administration of an estate, while also upholding the principles of fairness and justice in the application of the law.

Orders

Orders of the court

Appeal allowed

Leave granted to file application out of time

Leave to adduce further evidence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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