Case Note – Frey v Frey [2009] QSC 43

This case was an application for leave to proceed with a family provision application, despite the nine month time limit having expired.

The deceased was an elderly grazier, Henry Edward Frey and he died on 5 February 2004 aged 70.

He left a will dated 8 October 2002, which appointed as his executors his wife Leila and his sons Lyndon and Richard.

At the date of his death, his estate was worth $3.35 million but had grown to approximately $6.5 million at the date of the order.

A Family Provision Application was brought out of time by his wife Leila and his son Edward. Edward and his father had had a falling out, prior to the deceased’s death.

Following the testator’s death, the family entered into a deed to re-arrange the gifts in the will but this agreement was conditional upon a satisfactory partnership agreement being entered into. Despite attempts to do so, no such partnership agreement was able to be agreed.

These unsuccessful negotiations took over two years, and the nine month time limit for the family provision application passed without a claim being commenced.

Leave for an Extension of time

Ann Lyons J confirmed that family provision applications must be instituted within nine (9) months of the date of death. However, the Court has discretion to grant an extension of time.

The principles governing the applications of such leave are set out in the case of Enoch v Public Trustee of Qld [2005] QSC 194 and include:

a) was sufficient explanation for delay offered?;

b) a consideration of whether any prejudice was suffered by the other beneficiaries;

c) was there any unconscionable conduct by the applicant; and

d) what was the strength of the applicant’s case.

The trial judge considered that the delay was adequately explained because:

a) the parties were engaged in ongoing negotiations;

b) some family members suffered serious illness during the period;

c) the rural properties were affected by drought;

d) the time, distance and isolation experienced by the parties; and

e) the issues were factually complex.

Prejudice

The judge found that there was no prejudice suffered by other beneficiaries. The main reason for this was that the estate had not yet been distributed, owing to the negotiations in relation to the deed and partnership agreement.

Further there was no unconscionable conduct by the applicants – they had all been engaged in genuine attempts to negotiate a resolution of the matter in the time since the death of the testator.

This then left the trial judge to consider the strength of their respective claims.

Leila received significant assets under the terms of the will and on balance the trial judge felt that she had been sufficiently provided for.

However, Edward had only limited financial resources himself and was left only $25,000.00 in the will. Ann Lyons J felt his claim was strong and accordingly gave him leave to bring the proceedings out of time.

Ultimately, Edward was granted another property and half of the water licences associated with it.

Further Reading

Read the full case here

When can a Family Provision Application be made?

What is a Family Provision Application?

Who can bring a Family Provision Application?