Barnett, Re, Re Toohey [1991] QSC 241

.J, / 11' . ~, ~0,- 10 30 40 so ;.·:.·.:;- IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION o;s. No. 20 of 1991 BEFORE MR. JUSTICE DEMACK MACKAY, 31 JULY 1991 {Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) IN THE MATTER of the estate of WILLIAM HAROLD BARNETT late of Rockhampton in the State of Queensland, Retired -and- IN THE MATTER of an application by JEAN TOOHEY ORDER HIS HONOUR: This is an application by Delma Phyllis Gray, a beneficiary in the estate of William Harold Barnett, for an order that the sum of $100,000 be paid immediately to her in part distribution of the estate. on Friday last, Jean Toohey, who alleges that she was the de facto wife of the deceased for a long period, was granted leave by me to proceed in an application under the Succession Act for better provision for her from the estate ot the deceased. The legal representatives of Mrs. Toohey had advised the legal representatives of the beneficiaries that such an application would be made about 12 months ago. It appears that the other beneficiary, Victor William Barnett and Mrs. Gray, waited until after the nine month period had expired from the date of the death of William G 214-Govt. Printer, Old. 1 10 20 30 40 so 60 -- 1 of 3 -- ~, } it ;_1. 10 20 30 40 50 60 arold Barnett before they sought letters of administration. This clearly indicates that they were aware that an application was likely to be made and, consequently, when the application was made, it should have come as no surprise. When an application is made late, obviously one of the most important things is the question of prejudice to the beneficiaries of the estate. I do not recall being informed anything of this contract which is referred to in Mr. Fleming's affidavit of today. According to this affidavit, Mrs. Gray has entered into the contract to buy a house in Canberra and urgently needs $100,000 to settle the contract., It seems to me that the time to make this known was last Friday, when the issue should have been brought to my attention. It does not seem ~o me, on the material before me, that any such order can be made today or, indeed, any such order ought to be made. The material before me has some inconsistencies in it of. a very significant nature. Paragraph 13 says that Mr. Fleming has assets of $370,000 under his control in the estate. In his letter to the solicitors for Mrs. Toohey, he refers to $270,000 presently remaining deposited in an investment account. The two statements may not be inconsistent but on their face they are not easily held together and the sum involved is a substantial one. In the circumstances, I am not able to make the order that is sought. However, if a full disclosure of the size of the estate is made to Mrs. Toohey's solicitors, it may be possible for there to be some agreement as to the release of an appropriate sum. G 214-Govt. Printer, Qld. 2 10 20 30 40 50 60 -- 2 of 3 -- 10 30 40 50 · 60 so I wi11· adjourn the application to a date to be fixed, to be brought on on one day's notice by either party. G 214--Govt. Printer, Qld. 3 10 20 30 40 50 60 -- 3 of 3 --