Legal Research
Cases
Ansett v Moss

Ansett v Moss

Case [2007] VSCA 161 22 October 2007

Limitation Periods

Res Judicata

Unconscionable Conduct

Succession Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 4217 of 2006

JOHN NICOL ANSETT
JOHN NICOL ANSETT	Appellant
v
THEODORE HERTZL MOSS and JOHN KEITH SIMPSON and EQUITY TRUSTEES LIMITED (ABN 46 004 031 298)	1st Respondent 2nd Respondent 3rd Respondent

---

JUDGES:	BUCHANAN and REDLICH JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2007
DATE OF JUDGMENT:	22 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 161

---

Testator’s family maintenance – Extension of time to make application for relief – Ignorance of right to claim relief – Arguable case – Extension granted.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms C McMillan SC with Mr S Pitt	Mills Oakley Lawyers
For the Respondents	Dr I J Hardingham QC with Mr W F Gillies	Gadens Lawyers

BUCHANAN JA:

Sir Reginald Ansett (the deceased) died on 23 December 1981, leaving an estate valued at some $8,200,000. On 17 May 1982, probate of his will was granted to the executors named in the will. The deceased was survived by his widow, two sons and three daughters. By his will and two codicils, the deceased left a legacy of $1,250,000 to his wife and legacies of $50,000 to each of his children. The executors were directed to set aside three sums of $750,000 for each of the daughters in trust, to pay the income to each daughter for life and thereafter to her children. A major provision in the will was the creation of a trust fund, the income of which was to be given to charities.

The appellant is the second son of the deceased. On 18 January 2006, 24 years after the deceased's death, the appellant and his older brother applied to the Supreme Court for an order extending the time within which they could commence an application pursuant to the provisions of Part IV of the Administration and Probate Act1958 for further provision for their maintenance and support to be made from the estate. The applications were refused by a judge in the trial division. The appellant has been granted leave to appeal from that decision.

The appellant is now 71 years old. On leaving school he enrolled at the University of Melbourne and graduated as bachelor of laws in 1957. He completed articles, worked as a solicitor, and in 1961 became a partner in the firm Maurice Cohen & Co. He left the firm in 1969. In 1972 the appellant was employed as an investigating officer by the Law Institute of Victoria, and in 1973 he joined the Gas and Fuel Corporation as a corporate lawyer, where he was employed for several years. Between 1975 and 1977 the appellant had various labouring jobs in Queensland and Victoria. In 1977 the appellant became a partner in the firm Lloyd P. Goode & Co, where he remained until 1979, when he became a sole practitioner. That practice did not last long. From 1980 until 1983 the appellant was, according to an affidavit filed in support of his application, ‘mainly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ansett v Moss

Details

AGLC: Ansett v Moss [2007] VSCA 161
Case: [2007] VSCA 161
Decision Date: 22 October 2007

CaseChat Overview and Summary

Ansett v Moss involved the estate of a deceased man, Ansett, and his family, led by Moss, contesting the terms of his will. The central dispute was whether Moss and other family members were entitled to maintenance payments under the deceased’s will. The case was heard in the Supreme Court of Victoria. The family argued that they were owed maintenance payments that had not been fulfilled, while the executors of the will contended that the claims were outside the allowable timeframe.

The court was tasked with determining whether the family had an arguable case for relief concerning the extension of time to make their application. The legal issues revolved around the application of the relevant statutory provisions governing the extension of time in such matters and whether the family’s ignorance of their rights could justify an extension. Specifically, the court had to consider whether the family’s lack of knowledge about their right to claim relief could be considered a reasonable excuse for the late application and if such ignorance could form the basis of an arguable case.

The court found that the family had presented a credible argument that their ignorance of their right to claim maintenance constituted a reasonable excuse for the delay. The justices were satisfied that the family had demonstrated an arguable case for relief, warranting an extension of time. The court reasoned that the family’s lack of awareness of their entitlements due to the complexity of the legal issues involved was a significant factor. Consequently, the court granted the family’s application for an extension of time to make their claim, allowing them to pursue their maintenance rights as per the will.

Orders