Alizzi v Dunn [2011] QDC 48

1-1 [2011] QDC 48 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN No 116 of 2011 JOHN ALIZZI and RACHEL BIGIC First Applicant Second Applicant and GARY DUNN Respondent SOUTHPORT ..DATE 11/04/2011 ORDER CATCHWORDS Succession Act s 41 Extension of time for adult children to apply for better provision from their intestate mother's estate - consent given by respondent, the widower and anticipated applicant for letter of administration -- 1 of 4 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The Court has made orders by consent, granting the applicants, who are adult children of their deceased mother, additional time for the purposes of bringing an application for further and better provision out of the mother's estate. She died intestate on the 24th of August 2009. The originating application seeking provision wasn't filed until the 18th of March 2011, which was some months outside the nine months allowed. The order extends the date for bringing of the claim to the 16th of March 2011, makes directions which the parties have agreed upon and reserves costs. Mr Clutterbuck, appearing for the applicants, has provided a useful written outline of submissions. If no application was made, the Estate would go half to the deceased's widower, who was her second husband, a quarter each to the applicants. They are both students at the present time, although a few years older than the typical student. The outline refers to authorities which are relied on, to show that there's a probability of success of the underlying application. That's said to be a necessary but not sufficient condition for the granting of an extension of time by the Court of Appeal in Hills v. Clark [2008] QCA 159, see paragraph [31]. The Court can take some comfort from the consent that's been given. There's also some justification for the delay in that no-one yet has applied for letters of administration for the Estate. The applicants could hardly do so, as they are intent on changing what would otherwise be the -- 2 of 4 -- 1-3 ORDER 1 10 20 30 40 50 60 distribution. MR CLUTTERBUCK: Gary Dunn is the second husband of the deceased. HIS HONOUR: He - I thought he - I thought he'd been reluctant to apply. MR CLUTTERBUCK: He had originally. HIS HONOUR: And the someone else advertised. MR CLUTTERBUCK: Indeed, your Honour. HIS HONOUR: But now Gary Dunn is going to apply. MR CLUTTERBUCK: Now Gary Dunn is----- HIS HONOUR: So, he'll have to advertise too. MR CLUTTERBUCK: Indeed. HIS HONOUR: So that's still to happen. MR CLUTTERBUCK: That's my understanding of the position now. HIS HONOUR: All right - who was the gentleman who advertised? MR CLUTTERBUCK: It was his father, was the person apparently who was the other gentleman who - who'd applied. HIS HONOUR: He must be a fairly elderly person. MR CLUTTERBUCK: It arose, I think, your Honour, because Garry Dunn had some medical problems. HIS HONOUR: Yes. All right. In an exchange that's occurred, Mr Clutterbuck has clarified the rather confusing circumstances. The respondent to the application who is the anticipated administrator and person to take half of the Estate on the basis of distribution on intestacy, apparently has to confront health issues, which is -- 3 of 4 -- 1-4 ORDER 1 10 20 30 40 50 60 the explanation why, when ultimately, an advertisement of intention to apply for letters of administration was published, it wasn't by the respondent, but by his father, presumably an elderly gentleman. No application for a grant was ever made. The thought now is that the respondent will be making the application. He is yet to advertise an intention in that regard. Given the common ground the parties have reached, it's appropriate for the Court to make the orders. ----- -- 4 of 4 --