Kay & another v Kreis [2017] QSC 151
Background
The parties in this decision were all children of the deceased, Mario De Vivo. The applicants were his children from his marriage, and the respondent was his daughter from a relationship after his marriage had ended.
The deceased made a series of wills, the last being made in April 2001. This last will appointed the respondent, Ms Kreis, as his executor and gave her his entire estate. Ms Kreis was quite young when her father died in December 2006. She applied for a grant of probate but the applicants, Ms Kay and Mr Devivo, had filed caveats against a grant being issued. The matter did not progress for many years. Ms Kreis did not have the money to engage lawyers to remove the caveats. Ms Kay and Mr Devivo foreshadowed bringing family provision applications but did not do so.
The deceased’s estate included a half share in a property in Italy. In August 2016, Ms Kreis and Mr Devivo both received advice from an Italian official that they had 10 years from the death of the deceased to advise whether they wished to accept the inheritance. This advice prompted Ms Kay and Mr Devivo to obtain further legal advice and to file an application for family provision. The caveats they filed were removed by consent and Ms Kreis obtained probate of her father’s will.
The decision
Applications for family provision are required to be filed within 9 months of the death of a deceased. The applicants were about 9 years out of time so they required the Court’s leave to proceed with their application. The issue of whether the applicants should be granted leave was heard as a preliminary issue. I appeared as Counsel for the respondent. The applicants also had Counsel. The parties gave evidence and their evidence was tested by cross-examination. Holmes CJ handed down her decision promptly, deciding against the applicants being granted leave.
The applicants then appealed that decision but did not engage legal representatives for the appeal. They were unsuccessful. That decision is found at Kay & Anor v Kreis [2018] QCA 128.
Why it matters
The applicants were seeking an indulgence of the Court, that is, leave to commence a proceeding out of time. This decision is a reminder that such indulgence is not given merely for the asking.