Case Notes > Kay v Kreis [2017] QSC 151, Holmes CJ

Kay v Kreis [2017] QSC 151, Holmes CJ

By Karen Gaston
Posted March 20, 2022


Whether leave to proceed with a family provision application (FPA) should be granted, nearly 10 years out of time.


The testator died on 4 December 2006.

The Testator had three children.  The applicants, Mr De Vivo and Mrs Kay, were children of one relationship and the respondent, Mrs Kreis, was the child of a much later relationship.  She was substantially younger than the applicants. 

His last will appointed Mrs Kreis the executor of his estate and made her his sole beneficiary.

The Applicants’ did not filed their family provision application until 17 November 2016.

The estate in Australia was small, approximately $50,000 at date of death.

The deceased held a half share in real estate in Italy and also $643,000 in an Italian bank account.  These funds were the proceeds of sale of the deceased’s home in Bardon which one of the applicants (Mr De Vivo) had transferred there, acting as his father’s financial administrator, prior to his death.

Mr De Vivo held the view that the assets in Italy would be distributed equally to the deceased’s children. This was how the Italian succession laws operated.

The Respondent, Mrs Kries, filed an application for a Grant of Probate in February 2007.  However, the applicants, Mr De Vivo and Mrs Kay had both filed several caveats to prevent the issue of a Grant.  The parties filed consent orders for the removal of the caveats in January 2017 and the grant issued later that month.

The applicants sought advice from several sources about their legal rights, the earliest in February 2007, and were advised about the time limitations for an FPA. 

They were clearly confused about what needed to be done and filed caveats to protect their FPA interests.

The Respondents solicitors wrote to them (described as “helpfully” in the judgement), advising the caveats were misconceived, asking for them to be removed and in return offering not to distribute the estate, pending resolution of the FPA.  The Applicants did not take up these offers.

Both Mr De Vivo and Mrs Kay had limited financial means to engage lawyers to fund the costs of an FPA, but did have some resources (encumbered real property) that could have been used to obtain legal assistance.

Matters came to a head in August 2016, when the “curator” of the Testator’s Italian estate (similar to an administrator) wrote to the Applicants.  She advised that they needed to advise within 10 years of the Testator’s death whether they wished to accept the inheritance.  Otherwise it would be forfeited, presumably to the Italian Government.

Mrs Kreis engaged an Italian lawyer and Mr De Vivo advised the curator that there was a challenge to the Testator’s Australian will.  The curator obtained orders from the Italian Court freezing the administration of the Italian estate, until the Australian issues were resolved.


The Judge noted that there were various aspects of the Applicants’ evidence that she found implausible and some statements that she did not accept as truthful. 

Holmes CJ did not overtly refer to the relevant principles for an application for leave to proceed out of time, but they appear as headings in the judgement.

Strength of the applicants’ case: although limited evidence was adduced about exact nature of the Applicants’ financial position at the date of their father’s death, the matter proceeded upon the basis that all parties accepted there was an arguable case for provision.

Prejudice to Mrs Kreis: The unusual circumstances of the estate meant that despite nearly 10 years passing, the estate was nearly all still intact.  Thus, no prejudice arose because the estate had been distributed, either in whole or in part.  However, Homes CJ identified a “general prejudice” caused by the effluxion of time and its effect on the quality of evidence available, both oral and documentary.

Unconscionable Conduct: Holmes CJ found that no findings were necessary in relation to this topic, preferring to deal with any matters that may have fallen within this ambit under the explanation for delay banner.

Explanation for delay:  Counsel for the applicants asserted:

  1. that neither applicant was in a financial position to commence proceedings in 2007;
  2. each had taken reasonable steps for a lay person in filing caveats to protect their interests, even though those steps were misconceived.  They say they did not understand that a further application was required until 2016 when advised by a Legal Aid solicitor;
  3. the Respondent had similarly delayed – she had not taken steps to remove the caveats, to commence proceedings for a grant in solemn form or to otherwise administer the Australian and Italian estates.

Given the delay on both sides, Counsel submitted the delay should be excused.

Holmes CJ did not accept that the delay on both sides was a sufficient explanation.  Further the Respondent was not seeking an indulgence form the Court and she faced similar financial limitations to take action to have the caveats removed and the Italian estate pursued.

Instead, she found the explanations offered were not acceptable.  She said[1]:

It seems to me far more likely that the applicants did not proceed with any application because they did not think it worthwhile.  They were content to thwart Mrs Kreis’ attempt to obtain probate, thus preventing her from getting access to the limited part of the estate comprised by the accounts held in Australia, while being under the impression that they would ultimately share in the far more substantial assets held in Italy … What triggered their current action was the realisation firstly, that the [Italian] funds were at risk of forfeiture and secondly, that they may form part of the Australian estate.”

A Notice of Appeal in relation to this matter was filed on 10 August 2017 and that appeal was dismissed, with costs.[2]

Read the first instance decision here.

Read the appeal judgement here.

[1] Kay & another v Kreis [2017] QSC 151, at [40].

[2] Kay & Anor v Kreis [2018] QCA 128

Link copied to clipboard