JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2006
DATE OF JUDGMENT:	4 August 2006
CASE MAY BE CITED AS:	Ashhurst v Moss & Ors
MEDIUM NEUTRAL CITATION:	[2006] VSC 287

---

Family provision – Application by adult daughter of deceased for extension of time to bring claim for further provision out of estate – Estate valued at $8.2 million at time of grant of probate in 1982 – Deceased’s will left plaintiff a legacy of $50,000 and directed that his trustees set aside $750,000 in respect of each daughter and hold the net annual income upon protective trusts for the benefit of the daughter and in turn her children and then on the trusts for the residuary estate - Provision made by deceased arguably inadequate given plaintiff’s position, needs and the size of the estate - Application more than 22 years out of time – Sufficiency of plaintiff’s explanation of delay – Plaintiff not informed of full contents of deceased’s will – Plaintiff not aware of size of estate - Whether plaintiff delayed unreasonably after becoming aware of her rights – Whether final distribution of estate before the application – Factors relevant to exercise of discretion – Administration and Probate Act 1958, ss 91, 99.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K F McMillan SC	Bruce M. Cook & Associates
For the Defendants	Dr I J Hardingham QC and Mr W F Gillies	Gadens Lawyers

HIS HONOUR:

Introduction

This is an application by Jane Myles Ashhurst (“the plaintiff”) for an order extending the time for making an application under Part IV of the Administration and Probate Act 1958 (“the Act”) for further provision out of the estate of her late father, Sir Reginald Myles Ansett (“the deceased”), who died on 23 December 1981 aged 72 years.

The deceased, a well known businessman and founder of the now defunct Ansett Airlines, left a will dated 20 October 1980, with two codicils thereto dated 12 August and 23 November 1981 respectively.

On 17 May 1982, probate of the will was granted to the deceased’s wife, Joan McAuliffe Ansett (“Lady Ansett”) and the defendants[1].
[1]Theodore Hertzl Moss, John Keith Simpson and Equity Trustees Limited, then known as The Equity Trustees Executors and Agency Company Limited.

The deceased left an estate valued at $8,266,556.69 in the inventory of assets lodged in connection with the application for probate. The estate comprised his property at Mt. Eliza known as Gunyong Valley valued at $1,220,000 on which was erected a dwelling house and a beach house, and personal estate valued at $7,046,556.69.

Lady Ansett died on 25 September 2003 aged 80 years.

Section 99 of the Act provides that an application for an order under Part IV must be made within six months after the date of the grant of probate…

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 Ashhurst v Moss

Details

AGLC: Ashhurst v Moss [2006] VSC 287
Case: [2006] VSC 287
Decision Date: 4 August 2006

CaseChat Overview and Summary

In the matter of Ashhurst v Moss, the Supreme Court of Victoria was called upon to determine an application for an extension of time in relation to a claim for further provision out of the estate of a deceased person. The plaintiff, the adult daughter of the deceased, sought an extension of time to bring her claim, which was more than 22 years beyond the statutory period allowed by the Administration and Probate Act 1958. The deceased had left an estate valued at $8.2 million at the time of the grant of probate in 1982. The deceased's will provided a legacy of $50,000 to the plaintiff and directed the trustees to set aside $750,000 for each daughter, holding the net annual income on protective trusts for the benefit of the plaintiff and her children, and then for the residuary estate. The plaintiff contended that the provision made by the deceased was arguably inadequate given her position, needs, and the size of the estate.

The court was required to decide whether the plaintiff had provided a sufficient explanation for the delay in bringing her claim and whether the final distribution of the estate had occurred before the application. The court also had to consider the factors relevant to the exercise of its discretion under the Administration and Probate Act 1958, sections 91 and 99. The plaintiff argued that she was not informed of the full contents of the deceased's will and was not aware of the size of the estate, which contributed to her delay in bringing the claim. The court considered the circumstances of the case, including the plaintiff's lack of knowledge of the will's contents and the estate's value, as well as the passage of time since the grant of probate and the distribution of the estate.

The court found that the plaintiff had not provided a sufficient explanation for the unreasonable delay in bringing her claim. While the plaintiff's lack of knowledge about the will and estate was a factor, the court noted that the plaintiff had become aware of her rights more than 22 years ago and had not taken any steps to assert them until now. The court also considered the passage of time since the grant of probate and the distribution of the estate, which had occurred before the application. In light of these factors, the court exercised its discretion under the Administration and Probate Act 1958 and dismissed the plaintiff's application for an extension of time. The court held that the plaintiff's application was untimely and that the factors relevant to the exercise of its discretion did not warrant an extension of time.

Orders