Quinn & Scattini Lawyers successfully resists striking out of client’s claim in contested will case

Tuesday, June 25, 2013

On 25 June 2013, Russell Leneham, Accredited Specialist in Wills and Estates, appeared in the District Court at Brisbane on behalf of a client to oppose an application by the other party to dismiss our client’s court action.  The following is Mr Leneham’s description of the hearing.

“Quinn & Scattini Lawyers had been representing our client for only four weeks (from late May 2013), but this District Court case was filed in court in 2005.  The other party submitted to the court today that the action should be dismissed because no formal step had been taken in the action for more than seven years.

At first blush, that appears to be a pretty good argument.  But the broader background of the case needs to be considered.  There are actually two related court actions going at the same time, relating to the same contested will.

One of the cases is proceeding in the Supreme Court in Townsville.  There were also delays of many years in that case before Q&S became involved in May 2013.  In that case, our client argues that her father’s will is not valid because he lacked capacity to make a will.  On 4 June 2013 the Supreme Court gave directions for the progress of that case.

The other case is the one in the District Court at Brisbane, where our client is claiming further provision from her father’s estate on the basis that his will (the one that our client says is not valid) does not make adequate provision for our client.”

Mr Leneham said “It makes sense to me, and it seems to accord with the legislation, that the further provision claim cannot go ahead – it has to sit on the sidelines – until the Supreme Court has determined whether or not the will is valid.”

The District Court judge agreed, making an order today that the District Court claim for further provision is stayed until the Supreme Court case has been finalised.

Mr Leneham said “This is a good result for our client, who is up against the resources of a large trustee company that is acting as administrator of the estate.  We can now focus our efforts on the Supreme Court case, and keep the other case as a back-up position for our client in case the Supreme Court declares the will to be valid.”

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