Baker v Williams & Brunner (as executors of the estate of Baker)

[2007] QSC 226

Supreme Court of Queensland

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Interrogate

Catchwords

1. Succession
2. › Family provision and maintenance
3. › Circumstances precluding relief
4. › Estate fully administered
5. › Whether application for provision can succeed where estate fully distributed
6. › Succession Act 1981 (Qld), s 41
1. Succession
2. › Family provision and maintenance
3. › Extension of time
4. › Application out of time
5. › Whether leave to extend time can be granted where no estate remains
6. › Succession Act 1981 (Qld), s 41(8)
1. Succession
2. › Family provision and maintenance
3. › Distinction between Queensland and New South Wales legislation
4. › Whether Easterbrook v Young applies to Queensland legislation
5. › Succession Act 1981 (Qld), s 41
6. › Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), ss 4(1), 5(2A), 11(3)

Quick Take

Under the Succession Act 1981 (Qld), an application for family provision under s 41 cannot succeed where the estate has been fully administered, even where the delay was caused by a solicitor's negligence. The High Court decision in Easterbrook v Young (1977) 136 CLR 308 does not apply to Queensland because the NSW legislation contained provisions (ss 4(1), 5(2A)(a) and 11(3)) with no counterpart in the Queensland Act. A potential remedy for the disappointed applicant may lie in professional negligence against the defaulting solicitor.