Ashhurst v Moss

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5794 of 2005

JANE MYLES ASHHURST	Plaintiff
v
THEODORE HERTZL MOSS & ORS	Defendants

---

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 of the will. Thus, as counsel acknowledged, the plaintiff should have commenced her application for further provision out of the estate by 17 November 1982. The plaintiff did not commence an application within that time.

The Court has power to extend the time for bringing a claim under Part IV. Section 99 provides that:

“…the time for making an application may be extended for a further period by the Court after hearing such of the parties affected as the Court thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall be made before the final distribution of the estate and no distribution of any part of the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon”.

On 2 May 2005 the plaintiff commenced the present proceeding for an extension of time in which to make an application for further provision. As her counsel frankly acknowledged, she was almost 23 years out of time.

Counsel for the plaintiff submitted that the plaintiff had a strongly arguable case on the merits, and had adequately explained her delay. There had been no final distribution of the estate such as to prevent the Court from exercising its discretion to extend time, and there were estate assets in the hands of the defendants from which the Court could ultimately order that provision be made if the plaintiff was successful at trial.

Counsel for the defendant pressed as a threshold issue that there had been a final distribution of the estate, in the sense that the assets had been appropriated to separate freestanding trusts set up under the deceased’s will, with the consequence that s 99 prevented the Court from extending time. Alternatively, even if the estate had not been finally distributed, the discretion to extend time should not be exercised in the plaintiff’s favour. Her case was weak on the merits, and she had not adequately explained the delay.

Material in support of and in opposition to the application

The application was supported by affidavits sworn by the plaintiff on 3 June and 12 September 2005. The second affidavit responded to affidavits filed by the defendants. The defendants subsequently filed an affidavit sworn by the first defendant and two affidavits sworn by Graham William Smith, an officer of the third defendant, Equity Trustees Limited.

The defendants relied on numerous affidavits. Four affidavits were sworn by Mr Smith, on 1 and 11 August, 21 December 2005 and 1 February 2006 respectively. The first defendant, Theodore Hertzl Moss, swore three affidavits, on 2 and 12 August and 12 December 2005 respectively. There was an affidavit sworn on 2 August 2005 by Paul Cuthbert Hoy, a partner at Gadens Lawyers, who handled some matters in relation to the estate. And John Keith Simpson, the second defendant, swore an affidavit on 3 August 2005.

Only the plaintiff and the first defendant gave oral evidence. The plaintiff gave brief oral evidence in chief in which she expanded on several matters deposed to in her affidavits. She was cross-examined at some length. The first defendant’s evidence in chief confirmed the correctness of his affidavits. He was cross-examined.

Witnesses

Before dealing with the evidence in detail, it is convenient to make some brief general observations about the witnesses.

The plaintiff impressed me as an honest witness. She answered questions carefully, thoughtfully and responsively. There were times when she had difficulty remembering specific dates, which she frankly acknowledged. She did not attempt to swear to things of which she could not be sure. I accept her evidence. In particular I found credible, and accept as the fact, her explanation of the reasons for her delay in bringing the application, including the fact that she had not been aware of her right to seek further provision out of the estate.

The first defendant also impressed me as an honest witness. However, as he said in his first affidavit, he was “Sir Reginald Ansett’s personal legal adviser and the principal legal adviser to the Ansett group of companies and enjoyed a very close personal and professional relationship with Sir Reginald Ansett over more than 36 years”. It was apparent that he had the highest level of admiration for the deceased and regarded as paramount the observance of the wishes of the deceased and Lady Ansett who he also admired. He answered questions in cross-examination carefully, methodically, and with a precision in language that might be expected from a lawyer of long experience. At times, however, his evidence tended toward the argumentative, seeking to justify the testamentary dispositions made by the deceased, and his own role in dealing with the plaintiff and her sisters as beneficiaries thereunder. An example of this tendency was his assertion in his first affidavit that the plaintiff and her sisters suffered no detriment as a consequence of not being given a full copy of the deceased’s will and third codicil. Not only was “detriment” not defined, but he had never acted for the plaintiff; the statement was an unparticularised argumentative assertion. In addition, his venture into a matter of medical expertise concerning the effect on the plaintiff of her medication in para 34 of his first affidavit was inadmissible, and the conclusion he asserted in para 39 of that affidavit as to the plaintiff confirming awareness of the terms of Sir Reginald Ansett’s will “since shortly after his death” had the potential to mislead unless it was understood as referring only to those parts of the will that related to the plaintiff. In short, the first defendant’s affidavits were drawn with the precision of an experienced legal mind and need to be read carefully so as to understand the limitations of the evidence.

The family

The deceased had five children. By his first marriage he had two sons, Robert Graham Ansett and John Nicol Ansett. By his second marriage, to Lady Ansett, he had three daughters, Janet McAuliffe Richards born 26 December 1951, Jane Myles Ashhurst born 22 June 1957, and Jillian MacLean Baxter born 18 January 1961. While I will refer to Mrs Ashhurst as the plaintiff, it will be convenient to refer to her sisters as Mrs Richards and Mrs Baxter.

At the time of her father’s death, the plaintiff was aged 24 years. The deceased’s other daughters were aged 29 and 20 years respectively. There was no evidence as to the age of the deceased’s sons.

The plaintiff

In the following few paragraphs I refer to the plaintiff’s early years up to and just after the death of the deceased.

During her schooling years the plaintiff boarded at Toorak College. Following school, in 1975/1976 she completed two years of a three year diploma course in photography at RMIT, during which time she lived with her parents. Then, in 1977/1978 she undertook studies for the degree of Bachelor of Science at James Cook University in Townsville during which time she stayed in a Catholic Girls College arranged by her parents. During 1978 she contracted glandular fever and was unable to continue those studies. In 1979 she returned to RMIT and completed the third year of the photography course but as it had changed to a degree course she was unable to satisfy the new requirements. During this period she lived at home. In 1980 she worked as a photographer at a medical institute near Melbourne University and stayed in graduate accommodation arranged by her parents.

On 10 January 1981 the plaintiff married Scott Thomas Ashhurst. He is 10 months younger than her. He had completed the degree of Bachelor of Science in marine biology in 1978 and commenced work as a trainee computer programmer at the State Bank of Victoria in 1979. He had just under 3 years’ experience in such work when the deceased died.

During 1982 or 1983 the plaintiff attended a 4-5 day photography workshop in the United States of America and stayed in the US for another week with friends of her parents.

It will be seen that in thus setting out facts concerning the plaintiff’s life I have preferred her evidence to that given by the first defendant where there were conflicts between them. In addition to the above matters, the first defendant deposed in his first affidavit that the plaintiff was an accomplished equestrian and that facilities were established at Gunyong Valley primarily for her to use and achieve that standard of expertise. Here too I consider that the first defendant overdid the facts which I accept as being correctly stated by the plaintiff. That is that she attended pony club as a child and was an enthusiastic rider but never competed as an adult. The facilities at Gunyong Valley, which she assumed to refer to the working area (menage) on the top paddock, were funded by herself and her husband at considerable expense and were part of an unsuccessful horse training business.

By reason of her husband’s employment with the State Bank of New South Wales, the plaintiff and her husband commenced living in Sydney in 1989, where they remain.

The plaintiff and her husband have three children, Thomas who was born in 1988, Kate who was born in 1990 and Chloe who was born in 1992.

The plaintiff suffers chronic depression. Her husband and children are in good health.

I refer to some of these matters more fully below.

Finally, when the application was heard the plaintiff was aged 48 years.

Siblings’ applications

As referred to below, on 23 April 2004, Mrs Richards commenced an application for an extension of time in which to bring an application under Part IV of the Act for further provision out of the estate of the deceased. This application, along with another proceeding brought by Mrs Richards and her husband, was settled on 28 July 2005.

I was informed by counsel that the deceased’s sons had also commenced applications for an extension of time. Save for also having been informed that affidavits had been filed and that the applications were pending, I know nothing of those applications.

The deceased’s will

The deceased’s will is lengthy. It is sufficient to note that in his will, as amended by the second and third codicils thereto, the deceased provided as follows:

(a)He appointed his wife Lady Ansett and the defendants as executors and trustees.
(b)By cl 1 he left his furniture, jewellery, plate, household effects, implements and machinery used on his property at Mt. Eliza, his thoroughbred racing stock and all his personal effects to his wife.
(c)By cl 2 he left a legacy of $1,250,000 to his wife. Further, and without affecting any provision for her, by his second codicil he directed his trustees that any debt owed by his wife be forgiven.
(d)By cl 3, he left a legacy of $50,000 to each of his daughters.
(e)By cl 9 he left a legacy of $50,000 to each of his sons without interest on their legacies until payment and stated that “I now record that each of my sons has in the past from time to time been given assistance by me including financial assistance in the establishment of his home and of his business or professional career”.
(f)By cl 4 he left a legacy of $10,000 to each of two nephews.
(g)By cl 5 he left a legacy of $10,000 to another nephew.
(h)By cl 6 he directed his trustees to allow his wife to live in and use his Mt. Eliza property, including the beach house (and an area of land surrounding the house, to be determined by the trustees following discussion with Lady Ansett, but not to exceed 40 acres), free of rent during her life, so long as she remained his widow. The trustees were directed to pay from the income of the trust estate all outgoings in connection with the house and land. As to that area of land determined by the trustees, he directed that, if at the date of his death, there had not been erected thereon a residence for the use of Mrs Richards and her husband and children, the trustees were to cause to be erected, or if erection had commenced to complete erection, to the satisfaction of Lady Ansett at a cost not exceeding $120,000, a suitable residence and to allow Mrs Richards, her husband and children, to occupy and use the residence free of rent for such period as Lady Ansett might determine. The trustees were directed to pay all outgoings connected with the residence.
(i)By cl 7 he forgave any debt owed to him by Mrs Richards either alone or jointly with her husband John Christian Richards.
(j)By cl 10 he directed his trustees out of his trust estate to set aside in respect of each of his daughters an amount of $750,000 (of which amount in each case $500,000 shall be set aside as soon after his death as his trustees consider they are in a position to do so and in each case the balance be set aside at the end of eight years after his death) and hold the net annual income derived from each such amount upon protective trusts for the benefit of each daughter during her life and after her death, or if she predeceased the deceased then after his death to divide the respective sum into as many equal parts or shares as such daughter may have children then living and hold the income on protective trusts for the benefit of such children. Upon the death of any such children, the trustees are to hold the part or share of the net annual income which had been held on protective trusts for any such child upon the trusts declared in respect of the residue of the deceased’s trust estate. I interpolate that the Jane Myles Ashhurst Settled Fund[2] was established pursuant to cl 10 of the will. Initially a sum of $500,000 was set aside, followed by a further sum of $250,000 eight years later. The defendants are the trustees of that fund and distribute income from the fund to the plaintiff.
(k)By cl 12 he directed his trustees from the income of his trust estate to set aside and pay annually to the Mornington Racing Club until the death of the last survivor of his wife and daughters the sum of $20,000, subject to the Club providing annually a race with a stake of at least $25,000, such race to be named the “R.M. Ansett Stakes” or some such similar name for an appropriate feature race other than the Mornington Cup. It is convenient to note that by cl 3 of the third codicil the deceased forgave any debts owed to him pursuant to any debentures issued by the Mornington Racing Club. The inventory of assets listed a total debenture holding with the Club of $2,750 at an annual interest rate of 8%.
(l)By cl 13(a) he directed his trustees, as to the rest residue and remainder of his trust estate (after payment of debts funeral and testamentary expenses and duties): (a) following payments to be made and provided for under cll 2, 6 and 12, from the income of the trust estate “to make payments annually of such amounts as my trustees may deem appropriate to Toorak College and the Peninsula Church of England School both at Mount Eliza” and any other schools in Victoria not conducted for profit as the trustees may choose, and (b) after the death of his wife and after setting aside the sums provided for in cll 10 and 12 above, to hold the rest residue and remainder of his trust estate as a common fund to be known as the “R.M. Ansett” Trust (called “the Trust Fund”) upon the trusts in cl 14.
(m)By cl 14 the trustees were to hold the Trust Fund as a common fund in perpetuity and pay the income from it to such authorised charity or charities as the trustees in their absolute discretion determine, with preference to be given to authorised charities that would assist children to take their place in life and to Peninsula Church of England School and Toorak College. The trustees were also empowered to pay the whole or part of the capital of the Trust Fund to any authorised charity or charities, and on such payment the trusts of the will would cease to apply to or affect the capital so paid.
(n)By cl 15, the trustees were authorised to sell, call in and convert to money trust assets, and to invest such money.
[2]I will refer to this as “the Ashhurst Settled Fund”.

Subsequent events

Within days of the deceased’s death, the first defendant travelled overseas on holiday, returning in January 1982. While he was away, his partners Shimeon Kotler and Mr Hoy spoke to Lady Ansett and handled estate matters. Mr Kotler spoke to Lady Ansett on 6 January. His file note of that conversation[3] records that:

“She queried whether the beneficiaries be given a copy of the Will and raised the issue of advising them the benefits given to them under the Will particularly the three daughters. Advising that there is no legal requirement to give them a copy of the Will and that she should decide when and how much they should be told. She perhaps thought that Mr Moss should tell it to the children, advising that perhaps she should consider whether she should advise them and if necessary Mr Moss would be available to explain or elaborate. She will give thought to these matters.”

[3]Exhibit THM-3 to the first affidavit of Theodore Hertzl Moss. See Court Book, Tab 6.

Mr Hoy deposed in his affidavit that on 11 January 1982 he had a telephone conversation with Lady Ansett[4]. His file note of that conversation, dated 14 January[5], records that “Lady Ansett prefers not to advise the daughters of their entitlement of the Will and proposes to request T.H.M[6] to visit her and advise them of the effect of the bequests in the Will”.
[4]Affidavit of Paul Cuthbert Hoy, para 5. See Court Book, Tab 5.
[5]Exhibit PCH-1 to the affidavit of Paul Cuthbert Hoy. See Court Book, Tab 5.
[6]The first defendant.

When the first defendant returned from his holiday, his partners provided him with copies of their file notes, and advised him that Lady Ansett had wished to await his return so that he could meet with her and her daughters to inform them of the effect of the bequests in the will.

On 19 February Lady Ansett spoke to the first defendant about informing her daughters of the provisions made for them under the will and giving them those passages from the will and third codicil that affected them. In cross-examination the first defendant was asked whether, prior to the meeting with the daughters, he gave Lady Ansett any advice as to what should be done. He replied “Not really, not advice as such, no”. He did not suggest to Lady Ansett that her daughters should be given a full copy of the will. When asked whether it occurred to him that that should be done, he replied “Well, if it did it was purely a personal thought which I didn’t relay in those terms”[7]. Counsel also asked whether Lady Ansett said what she would like done. He replied[8]:

“Well, she was extremely concerned about the topic of publicity that is given wills, particularly those of well-known citizens such as her husband was, and she was especially sensitive that whilst everything relevant, everything significant must be given, told to the daughters, but nevertheless she was fearful, the chatter that does occur apparently, we all know, when publicity arises that is better not.”

He added that “Lady Ansett’s considerable sensitivity about publicity of estates tended to lead to the result – tended to lead to just what happened”[9], which, I find, was a reference to the fact that the daughters were not given a copy of the whole will and codicils, or informed of the overall asset position of the estate.

[7]Transcript 59.

[8]Transcript 59.

[9]Transcript 60-61.

On 23 February 1982 Lady Ansett and the first defendant met with the three daughters at the Ansett home at Gunyong Valley to discuss the provisions made for them under the will. The first defendant provided the three daughters with “extracts” of the will and third codicil which set out their respective entitlements. He exhibited to his first affidavit a copy of the extracts he provided to the daughters. The extracts were prepared by photocopying the will and third codicil but blanking out the several parts that did not contain a gift to the daughters. The result may be described thus. The extracts of the will commenced with the introductory paragraph which identified the document copied as the will of the deceased. This page was then blank until the point at which cl 3 appeared, there was then a blank to page number 2 on which cl 7 was set out and, following, another blank until cl 10 commenced. That completed the extracts from the will. There was attached a one page extract from the third codicil which showed the introductory paragraph identifying the document and cl 2 which related to the matter of the residence on the Mt. Eliza property for Mrs Richards. The first defendant deposed in his first affidavit that he explained to the daughters in detail the provisions of the will and their entitlements under it. In his first affidavit he referred to “extensive discussion” of the provision made for the daughters, especially about the settled funds and the way the income from them was to be held by the executors on protective trusts for their benefit, what the entitlements would be and how it would operate in practical terms. I accept that explanations to the substance of that stated were provided. It is however clear from his evidence that what the first defendant meant by this was that he explained the provisions of the will and third codicil insofar as they made provision for the daughters, but not otherwise. He confined the discussion and his explanations to these provisions. He did not otherwise state the provisions of the will and codicils or the operation of those other provisions.

The plaintiff said, and I accept, that she did not ask for a copy of the will nor did her sisters ask for a copy of the will. She did not know that she was allowed to. She said that it never occurred to her that she could see the will or that she had an entitlement to see it; it was not an issue.

At the meeting on 23 February 1982 the daughters were not informed of the size of the estate. The first defendant said in cross-examination that he did not talk about the size of the estate. The inventory of assets was not then available but nor was it provided to the daughters when it was prepared subsequently. When asked whether he thought that he should show a copy of the inventory, or provide that information, to the deceased’s daughters, he said “no”.

The plaintiff was cross-examined as to whether she knew her father was “a wealthy man”. She said that she had always been told that he was, “it was just something I had grown up with, it wasn’t a conscious knowledge he was wealthy, he was my dad”. She assumed he was wealthy. She knew that he owned Gunyong Valley. He also owned Brewarrana and another farming property called Gunbower but she did not know if he had both when he died because he had sold one. I interpolate that in the inventory of assets there is no apparent reference to a Gunbower property but there is a reference to a debt owed by Ansett-Brewarrana Holdings Pty Ltd. To further questions the plaintiff said that she would have assumed, but did not know, that her father had shares. Her father never discussed his assets with her and never told her even in approximate terms what his wealth might be, or in what type of asset it might be, and never informed her as to what she might receive. I accept this evidence. I further find that Lady Ansett took the same position as the deceased in these respects.

It is convenient to note here that in cross-examination the plaintiff was asked about her applications to the trustees (referred to below) and, further to that, was asked whether she knew the estate was large with a lot of investments, to which the plaintiff responded that she was concerned about her aspect of the estate and she did not know about the rest of the estate. She did not ask about it as it was not relevant to her, she knew there were charities and the schools were to get “income and things” so she figured that was being managed for them. But she did not know what the schools were to get and did not know how large the trust fund was that was to give money to the schools.

The first defendant made no enquiries of Lady Ansett or her daughters as to the daughters’ experience with wills. He did not suggest to the daughters that they obtain their own legal advice in relation to the will. I find as a fact that none of the three daughters received any legal advice at this time. I accept the plaintiff’s evidence that she was unaware of her right to seek further provision under the will.

As to this and the plaintiff and her sisters not being given copies of the full will, the first defendant deposed that[10]:

“It is the fact that all provisions of the Will and codicils touching upon the entitlements of the Plaintiff and her sisters were set out in full in those 6 pages of the portion of the Will and Third Codicil which I gave to the Plaintiff. I do not consider that any detriment flowed from the fact that the Plaintiff was not given a copy of the entire Will and Third Codicil”.

As referred to above, the first defendant did not identify that which he comprehended as might constitute detriment for this purpose. Detriment can of course cover a wide range of matters from financial loss to deprivation of opportunity and emotional distress. I found, to put it lightly, that the first defendant’s statement of his judgmental opinion was unhelpful and inappropriate, the plaintiff never having been his client, and in truth it is readily seen that the evidence was mere argumentative assertion.

[10]First affidavit of Theodore Hertzl Moss, para 13. See Court Book, Tab 6.

The plaintiff deposed that she had no experience with wills and did not consider that she was entitled to a copy of the entire will. She said that she did not see a copy of her father’s will until her solicitor provided a copy “this year” which year was 2005. I refer below to the time when the plaintiff obtained a copy of the will. The plaintiff deposed that:

“At the time that I was given a copy of the part of my father’s will that related to me, my mother told me that my father’s will was final and that she would not allow any discussion of its provisions. My mother had a very strong and dominating personality and any questions relating to the provisions of my father’s will were forcefully put to one side by her. The other individual trustees were old friends of my father and approaching them with any queries would have been pointless as all queries would be referred by those trustees to my mother[11]. The same situation applied in respect of any queries to the professional trustee.
Also at this time, my sisters and I did not have any legal advice or solicitors representing our respective interests and we were not aware that we may have any rights or entitlements to challenge my father’s will. Even if I had been aware of any rights or entitlements to challenge my father’s will, I consider that, at that time, I was simply unable to make decisions or question authority. My parents, and particularly my mother, had been extremely controlling. Until I was about 20 years of age, my mother controlled my life. I did not go anywhere without her permission. I did not often spend a night away from home, other than when I was at boarding school. At boarding school, my life was bound by the rules and regulations of the school. Decisions about many things pertinent to my daily life – who I saw, where I went and what I did – were decided by my mother. I feel that I had an abnormally restricted adolescence which I consider contributed to my inability to make decisions and to question authority. The legacy of the control is that I find it difficult even now to challenge things which seem wrong, to question authority and to make decisions. I would not be able to make this application without my husband supporting me and without him assisting me in dealing with my lawyers. Because of the forceful nature of my mother and the fact that she would not entertain any discussion about the provisions of my father’s will, I did not take any action in respect of finding out the details of my father’s will or obtaining and [sic] advice about challenging my father’s will. Any attempt to force such an issue would have been destructive and divisive of the family. I had a reasonably good day to day relationship with my mother but she would not be moved on the issue of the provisions made by my father for his daughters. In addition, my mother was one of the trustees of the Jane Myles Ashhurst Settled Fund and I was dependent on her for distributions from that Fund.”

[11]I note that counsel for the defendant said that this statement as to what the trustees would have done was mere speculation by the plaintiff. However, as I said to counsel during discussion, the evidence bore on the plaintiff’s apprehension and state of mind, and was relevant as to her explanation of why she took so long to seek further provision from the estate. I also accept it as stating the fact of what would have happened.

In cross-examination, I asked the plaintiff several questions about this evidence. As to her mother saying that her father’s will was final and that she would not allow any discussion of its provisions, she said that “they may not have been her actual words but we were given the part of the will that related to us and we were told that was it and there was no need to have any further discussion on it”. I also referred the plaintiff to her evidence that questions about her father’s will were forcefully put to one side by her mother, and asked her whether that occurred just after the time her father died and she was told of the relevant provisions of the will. She replied “Then and probably even for a few years we might – I might have asked mum, was there anything else and she definitely said, nothing for me to know about … or that I would need to know about”. As to her mother’s strong and dominating personality, she said that “later in life not long before she died she was certainly a much more gentle person and less able to deal with things but by that stage with worrying about mum’s health, there was no way, even if I had known I could do this[12], I wouldn’t have done it then anyway”.
[12]I interpolate that “this” refers to bringing the present proceeding.

I accept the plaintiff’s evidence.

The first defendant agreed that Lady Ansett was a woman of strong will. When I asked him to describe her, he said:

“She was a very capable person, sir. She had then, many years as a wife of a quite remarkable business entrepreneur, had seen what he did, how he did it, so she had a great deal of capacity herself and she was a very real person, if I can put it that way. … but at the same time, as a layperson, she was more than anxious to look to advisors to help her make up her mind on whatever topics had to be dealt with.”[13]

[13]Transcript 63.

The first defendant deposed further that at no time did any of the daughters request a copy of the entire will. I note however that this is not to say that the will would have been provided if it had been requested.

Resuming the chronology, on 3 June 1982 Mr Hoy wrote to the plaintiff, informing her that probate of the deceased’s will had been granted and that the executors had instructed his firm to pay her bequest of $50,000. The letter concluded by requesting the plaintiff sign a “deed of release” enclosed, on receipt of which a cheque would be forwarded to her forthwith. In effect, the “deed of release” stated that the plaintiff acknowledged receipt of her legacy of $50,000 under the will and released the executors “from all claims and demands whatsoever for or in respect of or on account of the said Estate now being distributed”. Sensibly but correctly it was not suggested that this rather widely drawn document precluded the present application or a claim under Part IV of the Act.

As I have already mentioned, in addition to the $50,000 the plaintiff had the right to receive income from the funds set aside in the Ashhurst Settled Fund. The plaintiff has received and continues to receive income derived from the Fund. Mr Smith deposed that between 30 June 1983 and 30 June 2005, the plaintiff received payments from the Fund totalling $1,260,016.14. Counsel for the plaintiff did not dispute this, but pointed out that it was a gross figure, and that the net income distributed to the plaintiff was actually $780,640.95. The lowest net annual income figure was $21,000 while the highest was $66,500. I interpolate that the average net annual income figure during the 22 year period was $35,484, however from 1998 onwards the income was less than $30,000 each year, with the exception of 2005 when it was $31,000.

The plaintiff has also sought and obtained interest free loans from the trustees of the Ashhurst Settled Fund. The trustees loaned the plaintiff $240,000 in March 1990 and a further $60,000 in August 2000. The total loan amount of $300,000 was taken out of the capital of the Ashhurst Settled Fund. Repayment of the loan is secured by a first mortgage over the plaintiff’s matrimonial home.

Apart from these two “successful” loan applications, in August 1996 the plaintiff and her husband made written application to the trustees requesting a loan of $150,000 to allow an extension of the family home. The plaintiff said in cross-examination, and I accept, that her husband helped her in making this request and that she had discussed the matter with her mother first. The plaintiff said, and I accept, that “If she hadn’t approved of the idea I wouldn’t have gone ahead with it”[14]. Notwithstanding Lady Ansett’s approval of her making the application, the request for a further loan was refused by the trustees.
[14]Transcript 44.

Also, on 8 February 1999 the plaintiff also wrote to the trustees asking them to consider expanding the type of investments in which the Ashhurst Settled Fund was permitted to invest. As appears on the face of the letter[15], and as the plaintiff explained in cross-examination[16], she was concerned that while the investments made by the Fund at that time were very safe, they did not provide sufficient income. She sought to persuade the trustees to adjust the risk/performance ratio so as to, in the words of the letter, “allow a return that will provide a worthwhile benefit to myself and my children on an on-going basis”. She said in cross-examination that she probably did discuss this matter with her mother before sending the letter to the trustees, although she could not specifically recall the conversation (The plaintiff said that she spoke to her mother every day throughout her life, sometimes twice a day). There was no direct evidence of the trustees’ response to the plaintiff’s request, save that the plaintiff deposed in her second affidavit that “The only success I had in dealing with the trustees was obtaining the two home loans which were fully supported by my mother”[17].
[15]Exhibit THM-10 to the first affidavit of Theodore Hertzl Moss. See Court Book, Tab 6.
[16]Transcript 30.
[17]Second affidavit of Jane Myles Ashhurst, para 18. See Court Book, Tab 10.

As mentioned earlier, Lady Ansett died on 25 September 2003. She left personal estate valued at $2,916,886.60 for probate purposes, and liabilities of $7,442.72. Probate of her will and three codicils thereto was granted to the second defendant on 6 February 2004. The first defendant, the other executor named in the will, renounced probate. Under the will, the plaintiff and her two sisters each received a legacy of $100,000. There was an additional legacy of $15,000 to Mrs Baxter and other legacies of some $496,000[18] and the residuary estate was left to the plaintiff and her sisters in equal shares. It would seem that the residuary estate comprised largely shares which the plaintiff said were distributed in specie to her (and her sisters). In her affidavit the plaintiff estimated the value of the shares distributed to her as $776,000.
[18]The plaintiff said in her first affidavit that the amount of the other legacies was $312,000 (which sum included the additional legacy to Mrs Baxter) but the first defendant stated in his affidavit that it was in fact $511,000 (including the additional legacy to Mrs Baxter) which included legacies of $50,000 for each of the eight grandchildren, three of whom are the plaintiff’s children. In opening, counsel for the plaintiff mentioned the higher figure provided by the first defendant and did not dispute it. I proceed on the basis that it is correct.

As mentioned above, on 23 April 2004 Mrs Richards commenced a proceeding (No. 5625 of 2004) against the defendants in which she sought an extension of time in which to bring an application under Part IV of the Act for further provision out of the estate of the deceased. Affidavits sworn in that proceeding were exhibited to affidavits of the plaintiff and the first defendant in the present proceeding. Those affidavits were sworn by Mrs Richards, by Mrs Richards’ husband, by the first and second defendants herein, and (on 3 August 2004) by the plaintiff (Mrs Ashhurst) herself. The proceeding was stayed in August 2004 to enable Mrs Richards to bring a further proceeding against the trustees.

On 11 October 2004 Mrs Richards and her husband duly brought a separate proceeding in which they sought a declaration that the defendant trustees of the deceased held a specified property[19], at which Mrs Richards and her family lived at the Mt. Eliza estate, for them on a constructive trust, alternatively a declaration that the trustees were estopped from denying that Mrs Richards and her husband were the joint beneficial owners of the property, and orders for the property to be registered in their name. At a mediation on 28 July 2005 both proceedings were settled on the basis that the trustees would use their best endeavours to procure the issue of a Certificate of Title for the property, and Mrs Richards and her husband would pay $300,000 to the trustees in consideration of the trustees executing a transfer of the property to them within 30 days of the issue of the Certificate of Title, and the parties would pay their own costs of the proceedings. In his affidavit sworn on 1 February 2006 Mr Smith deposed that, as at that date, the trustees had procured the issue of a Certificate of Title, but had not yet received the settlement sum. I refer to this issue in greater detail below.
[19]Lot 1 on Plan of Subdivision No. 520091U being part of the land in Certificate of Title Volume 10822 Folio 931.

In her first affidavit, the plaintiff said that after Mrs Richards commenced the proceeding for an extension of time, she (the plaintiff) sought legal advice in respect of her own position under the deceased’s will. When asked by counsel in cross-examination what prompted her to seek legal advice, she replied[20]:

“It would have occurred to me that perhaps I should look into it to see whether – you know, if the will had some parts in it that weren’t – let me see how I can put it. I would have wanted to make sure that if there was anything to be gained by doing it for my kids, that I wanted to make sure, you know, if there was greater access to provision for my family that I was going to be able to do it before it became too late. I … didn’t realise there was any time limit at all.”

[20]Transcript 51-52.

The plaintiff was not certain as to when she first sought legal advice, although she thought that it was in 2005. She was not particularly well in mid 2004 when she was having “another depressive episode for some months” and then changed her medication and found that to be the best medication she had been on. She then felt stronger and more positive and able to deal with matters so it might have been in late 2004 or well into 2005 when she first spoke to her solicitor. It was only after seeking legal advice that the plaintiff first saw a full copy of her father’s will. It was provided to her by her solicitor in 2005.

The plaintiff was asked in cross-examination whether she thought that inadequate provision had been made for her under the deceased’s will. She replied “Originally no, it seemed like a fine amount of money but some 20 years later it hasn’t – it didn’t cover the same expenses”[21]. She added that “…at the time when dad died I was newly married, head was in the clouds, I really wasn’t thinking about those things very much. It seemed a lot of money to me”.
[21]Transcript 43.

It was suggested to the plaintiff in cross-examination that she had contemplated challenging her father’s will since before her mother died. The plaintiff said “only in a very minor way and I didn’t want to do it when mum was alive”[22]. By this she meant “I think I would have liked to have had more information about what was actually in my father’s will but I never wanted to ask for it while mum was alive”. Counsel then put to the plaintiff that she made requests to the trustees about the investment policy and the loans, to which the plaintiff replied, “Yes, but that wasn’t about what was in the will, that was just about the investments that were related to me”. The plaintiff then denied that while her mother was alive she took the view that the deceased had not properly provided for her. Nor, before her mother died, did she intend to challenge her father’s will, she had not formed an opinion about it. It was after her mother’s death “that it came up”[23].
[22]Transcript 53.
[23]Transcript 54.

Further, counsel suggested to the plaintiff that since learning in 2004 that her sister was bringing legal proceedings, the plaintiff had effectively “sat on the fence” to see how her sister’s application would go. The plaintiff denied this, and attributed her delay to her chronic depression. She stated that[24]:

“During that time for about six months I was at the end of a period on one lot of medication that was ceasing to work, and then I was off that for a period of time before I started a new one, and when you get deep depression it’s very hard to do anything. You can’t motivate yourself. Getting out of bed in the morning to see the kids off to school is an effort. The thought of tackling anything like that was not something I could have done, the stress would have been too much and then I came on a new medication which is proving to be the most effective one I’ve had so it’s left me feeling far more positive but when you’re not on something like that and you have depression it’s very hard to do anything.”

[24]Transcript 56.

As to her mental health, the plaintiff deposed that she has suffered from chronic depression for over 16 years. She was diagnosed with the illness in mid 1989, shortly after the birth of her first child. Her condition is controlled by medication. She went on to her new medication, Lexapro, around October 2004, which she has found to be effective and has assisted her in coping with the stress associated with the present application[25].
[25]In cross-examination counsel for the defendants suggested that she began taking Lexapro in August 2004. She replied “I see in the thing I’ve written October 2004, so around about that period of time anyway”.

Counsel concluded his cross-examination suggesting that the plaintiff was not ”sufficiently depressed to at least come to the view that you would wait and see how your sister’s application went”, to which the plaintiff replied “No, I really wasn’t well. I had previously been working part-time and I found even the mild stress in a very easy job very difficult to cope with and I resigned from that job”[26].
[26]Transcript 56.

The personal and financial circumstances of the plaintiff

The plaintiff and her husband are in good health, apart from her depression. They have three children, born in 1989, 1990 and 1992 respectively who are in good health. The eldest child Thomas attends the private St Andrew’s Cathedral School. The plaintiff said in cross-examination that they had had to take Kate and Chloe out of private school “…because we can no longer keep up with that payment”. They now attend Killara Public High School. The plaintiff described her occupation as “home duties, full-time mother”. She has not worked full-time outside of the home for over 20 years. She worked for two years part-time as an administrative assistant at her local church, but resigned from that position in April 2004, saying that she found it difficult to cope with “even the mild stress in a very easy job”.

The plaintiff said that her husband was Chief Information Officer (effectively the director of information technology) at the Sydney Futures Exchange, and had been in that position since February 2000, although in cross-examination she said that he was looking for a new job[27]. His remuneration was $250,000 per year. The plaintiff agreed in cross-examination that she and her husband have “significant financial stability”[28].
[27]Transcript 27.
[28]Transcript 29.

The plaintiff set out the assets and liabilities of herself and her husband in her first affidavit[29]. Dealing first with assets, they were their jointly owned matrimonial home at Lindfield, New South Wales, valued at $1,200,000; a car registered in her name valued at $20,000; shares from her mother’s estate valued at $776,000; shares (including options) in the Sydney Futures Exchange, owned by her husband, valued at $460,000; and $110,000 in a joint bank account. The plaintiff deposed in her second affidavit that her husband is a member of the SFE superannuation fund, and that the amount payable on his death or at normal retirement age is approximately $450,000. The plaintiff deposed that she has some amount less than $50,000 in the Anglican Super Fund; it is quite unclear what the actual amount is. In addition, the plaintiff’s life (and permanent disability) is insured for $300,000. Finally, as to the amount of $110,000 in the joint bank, in cross-examination the plaintiff said that she was not sure how much was in the account at the time of the hearing. She said that the amount fluctuated, but she thought that money from the account may have been used to pay her husband’s tax bill or to purchase options in the Sydney Futures Exchange. In any event the amount in the account was “much less” than $110,000. Counsel for the defendants could not contradict this as the defendants had not requested that the plaintiff bring to court or otherwise provide her bank statements. Thus, on the evidence, I could not be satisfied as to what amount was presently in that account. I note also that the plaintiff is entitled to income from the Ashhurst Settled Fund as referred to at [49] above. As to liabilities, the only item referred to was the interest free loan from the estate of $300,000 secured over the matrimonial home. In all other respects, I accept that the plaintiff’s financial position is as she stated.
[29]At para 20.

Present position of the estate

The executors paid the various legacies, Lady Ansett lived at the Mt. Eliza property until her death and Mrs Richards and her husband lived at a residence constructed at the property, as provided or allowed for in the will.

Following the death of Lady Ansett the defendants took the following actions, as deposed to by Mr Smith[30]:
[30]Court Book, Tab 12, paras 6-7.

“6.On 1 July 2004 and in accordance with Clause 13 of the Will, the Trustees set up the R.M. Ansett Trust Fund (Trust Fund). Within the Trust Fund, two additional accounts were established, namely:
(a) The R.M Ansett Stakes Account (Stakes Fund); and
(b) The J.M. Richards Residence Account (Residence Fund).

7. The following amounts were set aside in each of the funds:
(a) The sum of $660,000 was set aside in the Stakes Fund;
(b)The sum of $300,000 was set aside in the Residence Fund; and
(c)The balance of the residuary estate in the sum of $9,197,606.54 (of which $150,000 was retained in the Estate as a provision if required) was appropriated to the Trust Fund.”

Exhibit B was a statement of the assets and liabilities in the R. M. Ansett Trust as at 24 January 2006. Total assets of $12,877,990.17 included real estate being Gunyong Valley valued at $6,030,000. Liabilities were $15,582.00 being an interest free advance to the estate by Lady Ansett.

There were differences in the affidavits as to the value of the Gunyong Valley land. This matter was particularly the subject of affidavits in Mrs Richards’ case but the issue carried forward to the present case. In summary, Mrs Richards said that the defendants were considering selling Gunyong Valley for residential subdivision on which basis the land could be worth in the vicinity of $40 to $60 million. The first and second defendants disagreed, saying that the land had not been rezoned for residential subdivision, and the first defendant further saying that the market value in 2004 was $3,908,000 based on the municipal value for 2002. I was not asked to and could not resolve the differences in opinion as to the value of Gunyong Valley. Indeed, as it seems to me, it is unnecessary to do so. Finally, I note that the evidence to which I have referred is that as it was at the hearing.

As mentioned earlier, at the time of the hearing, the defendants had not received the sum of $300,000 payable to them by Mrs Richards and her husband under the terms of the settlement of their legal proceedings. Mr Smith deposed that[31]:

“The settlement sum, once received, will be placed into the residuary estate referred to in paragraph 7(c) of my affidavit. The sum of $300,000 (plus interest) set aside in the Residence Fund referred to in paragraph 7(b) of my affidavit will also be placed into the residuary estate. In turn, the Property[32] will be taken out of the residuary estate.”

[31]Tab 13, para 7

[32]This presumably refers to the property which will be transferred to Mrs Richards and her husband on settlement of the proceedings.

Mr Smith set out in his affidavit the title details of the land which comprises Gunyong Valley and of which the defendants are presently the registered proprietors. He referred to eight separate Certificates of Title[33]. On six titles the registered proprietors are stated to be the three defendants as joint proprietors, while on two titles, the land described in Volume 10822 Folio 931 and Volume 10822 Folio 932, the registered proprietors are stated to be the defendants as “Legal Personal Representative(s) of Reginald Myles Ansett who died on 23/12/1981”.
[33]See para 8 of the affidavit of Graham William Smith, sworn 1 February 2006, Court Book, Tab 13.

There was a further piece of land (Volume 10898 Folio 556) which had previously been owned jointly by the defendants and South East Water Ltd. Counsel for the defendants informed me that South East Water Ltd agreed to transfer that land to the estate “because it had been the subject of constant occupation and they didn’t really need it”[34]. Mr Smith exhibited to his affidavit a copy of a transfer, dated 4 November 2005, by which the defendants and South East Water Ltd (as transferors) transferred the title to the defendants in their capacity as “Legal Personal Representative(s) of Reginald Myles Ansett who died on 23/12/1981”.
[34]Transcript 115.

Submissions
Plaintiff

Counsel emphasised that the Court has a discretion to extend the time for bringing a claim under Part IV of the Act and that the discretion must be exercised judicially. The plaintiff bore the onus of establishing why the failure to apply within time should be excused, and why it would be unjust for the plaintiff to be penalised for being out of time. Factors relevant to the exercise of the discretion included the sufficiency of the explanation of the delay, whether there would be any prejudice to beneficiaries, whether there has been any unconscionable conduct by the plaintiff, and the strength of the plaintiff’s case, although as to this last element, counsel noted a difference in the authorities as to its relevance as a factor.

Counsel referred to Re Nassim, deceased[35] in support of the proposition that a lack of knowledge of the size and extent of the testator’s estate, where the lack of knowledge has not been caused or contributed to by any fault or lack of action on the plaintiff’s part, may provide a ground for granting an extension of time. She also referred to Re Dun[36] for the proposition that an absence of injustice to beneficiaries was a strong ground for granting the extension of time, and to Re Ruttie, deceased[37] for the proposition that it is not hardship to a beneficiary if the only argument that can be advanced is that the beneficiary has lost the benefit of a rigid time limit.
[35][1984] VR 51.
[36](1956) SR (NSW) 181.
[37][1970] 1 WLR 89.

Counsel recognised that an application for an extension of time should be made promptly after the plaintiff becomes aware of the right to seek an extension of time, and that a strong case for an extension of time may be lost if the plaintiff delays unduly after becoming aware of the right to apply for provision[38].
[38]Counsel referred to Lazenby v McDermott [2000] TASSC 121; BC200005125, where Underwood J dismissed applications made 36 years out of time, where the plaintiffs had received legal advice some years before finally bringing their applications for an extension of time.

Counsel submitted that the plaintiff’s delay should be excused for three main reasons.

First, once the plaintiff became aware of the full terms of the will and her legal rights, in 2005, she issued the present proceeding seeking an extension of time. The decision to show the plaintiff only the parts of the will that contained her entitlement was deliberate. At the time of her father’s death the plaintiff was young, had no experience with wills, and was inexperienced in life. She had had a very protected family life and lacked the wherewithal to challenge her parents and question authority. Counsel referred to the strong personality of Lady Ansett, the close relationship between her and the plaintiff, the fact that there was never any discussion of the family’s assets, and the fact that no discussion was allowed about the deceased’s will. That, said counsel, explained why it was very difficult for the plaintiff to make any enquiries at all as to the contents of the will. The plaintiff’s upbringing and inability to question the authority of her parents left a legacy to this day, in the sense that it was very difficult for her to become more assertive after such a long period of time not questioning authority. Even after becoming aware of her rights, the plaintiff had still found it difficult to bring her application.

Secondly, an extension of time would not prejudice any beneficiaries, as the residuary estate is held on trust for charitable purposes in perpetuity with distributions of income at the discretion of the trustees. No beneficiary is affected, as the recipients of the income from the residuary estate do not have rights to receive the income. The effect of an order for further provision would merely be to reduce the income earned on the residuary estate by virtue of reducing the capital, and that is something that could be compensated for over time, bearing in mind it is in perpetuity, the income could be accumulated or there would simply be less income to be given.

Thirdly, the plaintiff’s case for further provision was strong on the merits. Counsel submitted that the benefits received by the plaintiff under the will were small in comparison to the size of the estate and bearing in mind her position as a child of the deceased. The value of the estate at the time of the deceased’s death was $8.2 million. The plaintiff received an outright legacy of only $50,000, notwithstanding that she was young, recently married, without a career as such, and may be expected to have children. In addition, of course, was the gift of income under the protective trust but the overall amount received by the plaintiff over the years was not huge and the lump sum had not grown with the times.

Counsel referred to several cases which dealt with claims for further provision brought by adult children[39], in particular Re Hodgson, deceased[40], as supporting the proposition that there is no rule preventing a successful claim by an adult daughter, even though her husband is healthy, in work, and they live in comfortable circumstances. Counsel emphasised that each case depends on the circumstances in terms of the provision that might be made out of the estate.
[39]Re Platt [1952] QWN 3; Kleinig v Neal (No 2) [1981] 2 NSWLR 532; Re Hodgson, deceased [1955] VLR 481.
[40][1955] VLR 481.

These submissions presuppose that there has not been a final distribution of the estate, counsel accepting that if there has been, time cannot be extended.

As to this threshold question, counsel submitted that the defendants bore the onus of proving that there had been a final distribution of the estate, which they had failed to do. There had not been a final distribution of the estate, as that term was understood in Easterbrook v Young[41]. She referred to several passages in Easterbrook, in particular that “…the disabling circumstance … is the actual distribution of the estate, its removal from the hands or name of the personal representative and its placement in the hands or name of the testamentary or statutory beneficiary”[42]. Here, said counsel, the executors still had estate assets in their hands. First, Mr Smith’s evidence demonstrated that the defendants held land in their capacity as legal personal representatives of the deceased, and in s 5 of the Act “personal representative” means, among other things, “the executor”. Secondly, further sums are still to be received by the estate as a result of the settlement of the proceedings issued by Mrs Richards and her husband against the estate. And the real estate to be transferred to Mrs Richards and her husband as part of the settlement would come out of the pool of property presently held by the defendants. Thirdly, Mr Smith’s affidavit referred to a sum of $150,000 being retained in the estate as a provision if required. Fourthly, it was a “bland assertion” rather than hard evidence that the defendants had distributed the residuary estate on 1 July 2004.
[41](1977) 136 CLR 308.
[42]At 316-317.

Counsel also made what she described as an alternative submission, relying on the High Court’s discussion in Easterbrook of the decision of Adams J in Public Trustee v Kidd[43]. Counsel submitted that the Court could ultimately order that further provision be made for the plaintiff out of the capital set aside in the Ashhurst Settled Fund, even if that money had been distributed to the trustees of the Fund.
[43][1931] NZLR 1.

Defendants

Counsel pressed the threshold point, namely that the Court could not extend time because there had already been a final distribution of the estate, as that term was understood in Easterbrook.

As to that, counsel referred to the decision of Brooking J in Re Lago, deceased[44]. In that case, the deceased’s will left $10,000 to one daughter (the plaintiff) and left the rest of the estate (the main asset being a farm property valued at $125,000) in equal shares to the other two daughters, who were also the executrices (the respondents). The executrices signed a transmission application to be registered as proprietors of the farm property, being land under the operation of the Transfer of Land Act. On the same day they also executed a transfer of the farm from themselves as executrices to themselves as tenants in common in equal shares. The respondents’ solicitors lodged the transmission application and the transfer at the Titles Office. Subsequently the plaintiff sought an extension of time in which to seek further provision out of the estate. The transmission application and transfer had not yet been registered. Brooking J noted that “Easterbrook’s Case itself makes it plain that [in s 99 of the Act] “distribution” is an act of delivery or transfer, not something that may result from the transmogrification of the personal representative”[45]. His Honour concluded that “In the present case the personal representatives had done all that it was necessary for them to do to enable themselves to become registered as proprietors as tenants in common, and as personal representatives they could not prevent or obstruct registration”[46]. There was thus a final distribution of the estate and time could not be extended.
[44][1984] VR 707.
[45]At 709.
[46]At 710.

Counsel acknowledged that Easterbrook established that the occurrence of no more than the process of transmogrification from executor to trustee would not amount to a distribution within the meaning of s 99, but submitted that in the present case the estate had been distributed in that following the death of Lady Ansett, the residuary estate is now held by the defendants in their capacity as trustees of a separate, freestanding, perpetual charitable trust established under the deceased’s will and known as the R.M. Ansett Trust. Counsel accepted that “obviously there’s been no distribution of all the subject [assets] of the R.M. Ansett Trust, that will happen in due course, perhaps, but it’s a distribution to the trustees of that ongoing trust and the distribution occurs not just as a matter of transmogrification, but that occurs when there is full compliance with the terms of the will and an appropriation of the residuary assets to the trust, so that the trust is to go forward and be administered by the trustees of the R.M. Ansett Trust”. This was not simply a case of executors becoming trustees of relevant assets, rather it involved the constitution of an ongoing trust by the appropriation of relevant assets to trustees who were, fortuitously, the same people as the original executors.

Counsel submitted that it was inconceivable that the assets of a perpetual charitable trust set up under the deceased’s will, which has been running for some time, could be amenable to applications for further provision under Part IV of the Act.

Similarly, counsel submitted that the capital sum set aside in the Ashhurst Settled Fund had also been distributed and could not be amenable to an order under Part IV. It was a freestanding trust arising under the will and had been running for many years in favour of the plaintiff. It was “fortuitous … that the trustees of that trust happen to be the same as the executors”. It was not a matter of transmogrification but of appropriation and distribution to the trustees of freestanding long-term trusts under the will.

As to the fact that the trustees are the same people as the executors, I interpolate that pursuant to leave counsel for the defendants provided a supplementary written submission as to the effect of Dawson v Fitch[47], a decision mentioned by counsel for the plaintiff, where the Full Court of the Supreme Court of South Australia considered the question of final distribution for the purposes of an extension of time under the Inheritance (Family Provision) Act 1972 (SA). The supplementary submission was that in the case of the R.M. Ansett Trust and the daughter’s trusts, it would be a “nonsense in refinement” to say that (a) there would be a distribution if at least one of the trustees were not an executor, but (b) there would not be a distribution if the trustees were the same as the executors so that no actual transfer was called for, but simply a suitable appropriation as referred to in Mr Smith’s affidavit.
[47][2004] SASC 12

As to the plaintiff’s reliance on certificates of title which showed that the defendants were registered as “legal personal representatives” of the deceased, counsel submitted as follows. On all the certificates of title, the defendants held the property as joint tenants, which is how they are supposed to hold the land, whether as executors or trustees. Unlike the situation in Re Lago where the executrices held the land as joint tenants but had to transfer the title to themselves as tenants in common, in this case such a transfer was not necessary, the land held by the defendants as joint tenants had been appropriated to the trust. Thus, submitted counsel, the estate had been finally distributed and time could not be extended.

Counsel accepted that if he was wrong on that point, there was no issue as to the relevant principles applicable to an application to extend time. He referred to several authorities which it is not necessary to set out but to which I have regard. He emphasised that it was not enough for the plaintiff to show only that she would suffer manifest injustice if an extension were refused. That is, in itself a strong claim for further provision would not justify an extension of time.

In any event, counsel submitted that the plaintiff had not demonstrated an arguable case for further provision. He referred to Coates v National Trustees[48] for the proposition that, under the legislation as it stood at the time of the deceased’s death, in considering whether the plaintiff has an arguable case, the Court must ask two questions; first, looking at matters at the date of the deceased’s death, did the testator fail to make adequate provision for the proper maintenance and support of the plaintiff?; secondly, if the answer to the first question is yes, having regard to circumstances existing at the time of the order, what additional benefit is required to ensure that adequate provision is made for the plaintiff’s proper maintenance and support out of the testator’s estate? Counsel submitted that the plaintiff had not provided any evidence of her economic circumstances as at the death of the deceased, hence the Court could not answer the first jurisdictional question in her favour.
[48](1956) 95 CLR 498.

While conceding that the plaintiff’s ignorance of her right to apply for additional provision under the Act may justify delay, counsel emphasised that an applicant must act promptly after discovering the right to apply. Here, he submitted, the delay consisted of two separate periods, namely; (a) from 17 November 1982 (being six months after the grant of probate) to the time the plaintiff first learnt that she could challenge the will, which was, at the latest, shortly after Mrs Richards brought proceedings in April 2004, when the plaintiff saw a solicitor, and (b) the ensuing period up to 2 May 2005 when the plaintiff finally commenced her proceeding.

As to the first period, the plaintiff attributed her failure to commence proceedings to her lack of awareness that she could challenge the deceased’s will, which lack of awareness she seemed to attribute to the fact that the executors did not provide her with a full copy of the will, and their failure to refer her to independent legal advice. He conceded that “the cases suggest if you don’t know, that constitutes an appropriate excuse”. But even if the plaintiff had been aware of her rights, her mother was so controlling that the plaintiff would not have countenanced commencing proceedings while her mother was alive. Counsel submitted that if the plaintiff learned of her rights but decided not to exercise them because of concern for the feelings of her late mother or about her reaction, that would not amount to an acceptable excuse.

As to the second period, counsel submitted that the plaintiff did not provide an adequate explanation of the delay. The plaintiff first learned of her rights “round about the time her sister instituted her proceeding in April 2004 and at about that time she went and saw a solicitor or she rang up, contacted a solicitor but nothing occurred, no proceeding”. In short, the plaintiff knew of her rights by 23 April 2004, and certainly by 3 August 2004 when she swore an affidavit in her sister’s proceeding, yet she waited until 2 May 2005 to commence her proceeding. The plaintiff could not make up her mind, and inability to make up one’s mind is not an appropriate excuse for delay.

Counsel referred to what he described as the plaintiff’s attempts to provide a medical explanation of her delay and submitted that no medical evidence was adduced supporting any contention that, prior to 2 May 2005, the plaintiff was medically incapable of instituting the present proceeding.

Further, counsel refuted the suggestion that the executors had done anything improper in their dealings with the plaintiff and her sisters. He submitted that executors are not obliged to provide a beneficiary with a full copy of a will and any codicil thereto; their obligation is to explain the will to a beneficiary insofar as it affects that beneficiary. That was precisely what the first defendant did here. Nor were the executors obliged to refer the beneficiaries to independent legal advice. The plaintiff and her sisters “weren’t kept in the dark, they were told of their entitlements and why should they be referred to legal advice?”

Decision

There was no real dispute between counsel as to the legal principles governing the application. If there had been a final distribution of the deceased’s estate, the application must fail. If the estate has been partially distributed, an extension of time would not affect distributions made before the application was commenced. It is thus convenient to begin with the threshold question of whether there has been a final distribution of the estate.

In my view, regarding the evidence overall, it is not established that there has been a final distribution of the estate for the purpose of s 99. Mr Smith’s affidavit refers to “the balance of the residuary estate in the sum of $9,197,606.54 (of which $150,000 was retained in the Estate as provision if required)” being appropriated to the R.M. Ansett Trust on 1 July 2004. Further, there was reference to the defendants having not received the sum of $300,000 payable to them by Mrs Richards and her husband under the terms of the settlement of their legal proceedings. And, there is a sum of $300,000 (plus interest) set aside in the Residence Fund which was to be placed into the residuary estate. In her closing address, counsel for the plaintiff submitted that Mr Smith’s affidavit “discloses that funds are coming in and going out … and the material still talks about the $150,000 being in the estate and it’s set aside for whatever purpose. So there’s this going in and out, it seems from the material but we don’t know because we are not in a position to have that information but it’s not, in our submission, proper evidence”. Although the issue of the adequacy of the evidence of distribution was thus raised by the plaintiff, counsel for the defendants did not address the specific amounts of money said to remain in the estate. Rather, he made a general submission that the estate had been finally distributed upon the setting up of separate freestanding trusts pursuant to the terms of the deceased’s will, following the death of Lady Ansett. While that may be so in relation to the Ashhurst Settled Fund, and indeed the R.M. Ansett Trust, this said nothing as to the $150,000 “retained in the Estate as provision if required” nor as to the $300,000 the estate was to receive on the settlement of the proceedings with Mrs Richards and her husband. Nor was there any explanation of the $300,000 in the Residence Fund apart from that stated by Mr Smith’s affidavit to which I have made reference. I am not satisfied that there has been a final distribution of the estate (at least insofar as the above amounts are concerned) so as to preclude an extension of time. I should add that I assume that these sums of money have not been, and will not be, appropriated to the R.M. Ansett Trust pending the determination of the present proceeding.

The same position obtains, in my view, in relation to the land in respect of which there are certificates of title standing in the names of the defendants as legal personal representatives of the deceased. As to the land described in Volume 10822 Folio 931 and Volume 10822 Folio 932, the relevant plan of subdivision was registered on 20 August 2004. And as to the land described in Volume 10898 Folio 556 (previously owned jointly by the defendants and South East Water Ltd), the transfer to the defendants as legal personal representatives was dated 4 November 2005. Thus, on all three titles, the defendants became the registered proprietors as legal personal representatives of the deceased after 1 July 2004 when the R.M. Ansett Trust was set up by the defendants. I do not overlook the submission of counsel for the defendants as to the lack of necessity to change the description of the registered proprietors, but as the description of the defendants’ capacity in the three titles is clear and there being no real explanation as to why the titles are held by the defendants as legal personal representatives of the deceased, I am satisfied that there has not been a final distribution of the estate insofar as the land in these three titles is concerned.

As to the remainder of the estate, and notwithstanding the submissions of counsel for the plaintiff, in my view it is established that there has been a final distribution thereof. This is so in respect of all the land held by the defendants (except that in the three titles mentioned above), the other assets comprising the R. M. Ansett Trust Fund, and the Ashhurst Settled Fund. The fact that the trustees are the same people as the executors is merely one factor to consider when deciding the factual question whether the estate assets have been put beyond recall. In my view, these assets have been put beyond recall as they are now held by the trustees to be dealt with only in accordance with the terms of the relevant trusts.

I also reject the alternative submission advanced by counsel for the plaintiff, namely that applying the obiter of the High Court in Easterbrook, the Court could order the defendants to make further provision for the plaintiff out of the Ashhurst Settled Fund. To explain why I reject the submission it is necessary to set out the passages from Easterbrook relied on by counsel, in which the High Court summarised the facts in Kidd, where the daughter of the testator applied for an extension of time under s 33(9) of the Family Protection Act 1908-1921 (NZ) which provided that time might be extended if application was made before the final distribution of the estate, and that no distribution of any part of the estate made prior to the application should be disturbed. The High Court said[49]:

“The testator’s will had provided for an annuity for the plaintiff daughter with power in the trustee in aid of the administration and distribution of the estate to appropriate a sufficient part of the estate to provide by its annual income for the payment of the annuity. The residue of the estate was left to the testator’s son, one of the executors of the will. After setting apart a sum to answer the annuity, the residue of the estate, save a small sum less than £100, was handed over to the residuary beneficiary. All that remained in the hands of the respondents to the application was that sum, and the amount set aside to satisfy the annuity. Under the general law and the terms of the will, any surplus income of the sum thus set aside, i.e. in excess of the amount of the annuity, and the unexpended capital of the sum itself on the death of the annuitant would be part of the residue to which the residuary beneficiary was entitled.
His Honour correctly rejected a submission that the amount actually paid to that beneficiary in part satisfaction of the residuary gift had not been distributed within the meaning of s 33 to which we have referred. However, his Honour went on to hold that the sum set apart to provide the daughter’s annuity no longer formed part of the testator’s estate as the executors had completed their duties by getting in the estate and perfecting their title by transmission of their testator’s real estate into their names – presumably as executors, though this is not mentioned by his Honour. He held that thereafter they held the property both real and personal in the character of trustees for the beneficiaries. That property included the sum set apart to provide the annuity and what we have called the surplus income. His honour relied on the settled view that executorial powers cease with the completion of executorial duties and that thereafter the executors cease to be executors and hold the property as trustees for the beneficiaries. Consequently, the appropriation of a sum to satisfy the annuity was made by the respondents as trustees.
[After referring to the authorities to which Adams J had referred, their Honours continued]
… so soon as the executor by use of his executorial powers has completed his tasks and assented to the benefactions, the testator’s will begins to operate and the powers of a trustee are activated in relation to the property then subject to the terms of the will. Granted that this is settled law in relation to powers and to the vesting of the interests of the beneficiaries under the will, its relevance to the construction of testator’s family maintenance legislation is not apparent. The dominant purpose of this legislation is to enable the court, in a sense, to prevent the operation of the will according to its terms in an appropriate case. It is because the will is operating unduly or unjustly in relation to the testator’s family that the court is empowered to order maintenance, its order operating as a codicil to change the terms of the will and have them operate in a way different to that expressed by the testator. In relation to the exercise of executorial powers, it may be conceded that upon completion of the executorial duties and with the assent of the executor, the property devolving by the grant of probate on the executor has ceased for those purposes to be the estate of the testator. It has become the property of those to whom it is destined by the will of the testator. But, in our opinion, the Act in using the expression “out of the estate of the testator” is not concerned with these settled doctrines. The words are used to indicate both the financial limits to which the court may go in making provision for those having unsatisfied claims on the testator and the source from which any provision so made shall be satisfied. It is, as we have said, that which the testator had to dispose of which is relevantly his estate. The court’s power to make an order operative as a codicil extends to all that property, notwithstanding that in the case of an application made within the statutory twelvemonth it has been physically handed over or transferred to the intended beneficiary or beneficiaries. Of course, whether a court should disturb a distribution rests in the court’s discretion, influenced no doubt by all the circumstances of the particular case. As indicated, the situation is different in the case of an application made out of time.

We do not understand why in Public Trustee v Kidd the court could not have made some provision out of the amount set aside to satisfy the annuity, if it thought that rather than an annuity a capital sum was presently required by the daughter’s situation. For reasons already given the fact that the money was technically held on trust on the terms of the will did not preclude the court from altering those very terms by an order operating as a codicil. The testator could by codicil have done so; and the order would operate as if he had done so.” [Italics added]

[49](1977) 136 CLR 308 at 319-321.

Counsel emphasised the last paragraph in the passage quoted above, submitting that even if it were held that there had been a final distribution of the estate, provision could be made for the plaintiff out of the sum constituting the Ashhurst Settled Fund, if she was successful on the substantive application under Part IV of the Act. But the present case is different from Kidd. While in both cases the money in the settled funds is to revert to the residuary estate upon the death of the beneficiaries of the settled funds, the settled fund in Kidd was established for the plaintiff who was the only beneficiary under it, while in the present case the objects of the trust are the plaintiff, her children and ultimately the residual gift to charity. In other words, the income from the Ashhurst Settled Fund is not only for the plaintiff during her life, but also then for her children and then to the residual gift. In my view, the assets of the Ashhurst Settled Fund have been distributed to the trustees who hold the assets on the trust set up under the deceased’s will, for the benefit of the plaintiff and her issue and the charity in succession. The Fund is thus not amenable to a Part IV claim.

It is convenient to note counsel for the defendants’ reference to Re Barrot, deceased[50] where Sholl J observed that distribution of an estate “may have proceeded so far as to render an extension of time in any event unjust or undesirable”[51]. His Honour’s comment presupposes that there has not been a final distribution of the estate. It is clear that the extent of the distribution of the estate is a relevant factor to consider in the exercise of the discretion to extend time. In some cases it might be futile to extend time because the amount of the estate not yet distributed is so low as to not warrant litigation over it. I have regard to that consideration, but ultimately it seems to me that the undistributed estate is of sufficient size to bear an order if the plaintiff succeeded at trial.
[50][1953] VLR 308.
[51]At 314.

There not having been a final distribution of the whole estate, it remains to consider how the discretion to extend time should be exercised.

Section 99 does not specify any criteria to be considered in determining on the exercise of the discretion, save for the proviso that the estate has not been finally distributed and that no distribution made shall be disturbed. Apart from the proviso the section provides that the time for applying “may be extended”, thereby conferring a discretion which, like all judicial discretions, is to be exercised with regard to the relevant circumstances. In Re Guskett, deceased[52] Herring CJ said[53] that an applicant “has to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts, but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As, moreover, he is seeking an indulgence, he should apply promptly for an extension of time.”
[52][1947] VLR 212.
[53]At 214.

Several years later Sholl J in Re Barrot, deceased[54] observed[55] that while it could never be right for the Courts, when the Legislature had not done so, to specify grounds on which alone the discretion can be exercised in favour of an applicant, the legislation contemplated that the Court must be satisfied of some circumstances which should induce it, “acting judicially” to excuse the applicant from the privative operation of the section[56]. Later he said[57] that the fact that the applicant’s delay was excusable and the fact that administration had not proceeded to a point where past distributions would render inequitable the imposition on interests not yet fully distributed the burden of further provision for the applicant, were relevant considerations, although they were not exhaustive of the possible grounds for an order.
[54][1953] VLR 308.
[55]At 312.
[56]This passage was referred to with approval by Young CJ in Re Lauer, deceased [1984] VLR 180 at 185.
[57]At 313.

In the joint judgment of the High Court in Neil v Nott[58] in which it was held[59] that an extension of time should be granted, close attention was paid to the facts of the case, in particular the illness and financial state of the applicant, and the absence of prejudice to the estate.
[58](1994) 68 ALJR 509.
[59]At 511.

Different views have been expressed, invariably obiter, as to whether the relative strength of the applicant’s case is a relevant factor to be considered in deciding whether to extend time. In Re Guskett, deceased Herring CJ said[60] that the strength of the claim for relief cannot be taken into account. Were it otherwise, his Honour said, an applicant with a strong case on the merits might delay beyond the period allowed and then demand an extension of time on the ground that manifest injustice would result from a refusal to grant such an extension. This view was followed in other cases including by Sholl J in Re Barrot, deceased[61]. The difficulty which lay at the heart of the concern of Herring CJ and Sholl J, as it seems to me with respect, was the situation where the applicant had an arguable case but otherwise inexcusable delay. In such circumstances some New Zealand decisions had said that manifest injustice would arise if time was not extended and it was this doctrine which concerned Herring CJ and Sholl J, the latter stating (at 312) that the doctrine should not be admitted in Victoria “at any rate so far as it depends on the merits or otherwise of the substantive application if it is allowed to be made”.
[60]At 215.
[61]At 312-313.

It was soon apparent that expressed in absolute terms, the proposition may not conduce to the just and equitable disposition of applications. Thus, it was held that the fact that a case was groundless or improbable to succeed on the merits was properly to be taken into account as in such a case an extension should not be granted. In Re Walker, deceased[62] Lush J considered that an applicant must show that he has an arguable case. He referred[63] to Re Guskett, deceased and Re Barrot, deceased and said that “There are dicta in those cases to the effect that on an application for extension of time the court is not concerned to consider the strength of the substantive application. But to say that an extension will not be granted merely because the case is unanswerable is not to say that an extension will be granted without regard to the fact that the case is groundless. ... The Queensland case of Re Terlier[64] in my respectful opinion correctly states the proposition that if it is improbable that the action will succeed, an extension of time should not be granted. This improbability may stem either from the condition of the estate ... or from the facts relevant to the plaintiff's claim, or from both, as in Terlier's case.” In Re McPhail, deceased[65] Gowans J included[66] as a relevant factor that the applicant had an arguable case for relief. In Re Nassim, deceased[67] Nicholson J was of the same view[68] although stating that an unanswerable claim without more might not be sufficient to enable the discretion to be exercised. Then a few months later in Re Lauer, deceased[69] Young CJ said[70] that an applicant must show an arguable case for relief but that “the mere fact that an applicant has an arguable case for relief cannot, without more, provide a reason for granting an extension of time.” More recently, Gillard J in Valbe v Irlicht[71] said[72] “In my opinion the strength of the case is an important and relevant factor to take into account. The period of delay and the reason for it, whilst important, are not factors which carry much weight in the absence of prejudice and in the face of a strong claim. Justice is the paramount consideration and to deny a person an extension of time in the face of a strong claim could amount to an injustice.”
[62][1967] VR 890.
[63]At 892.
[64](1959) Q.W.N. 5.
[65][1971] VR 534.
[66]At 548.
[67][1984] VR 51.
[68]At 56.
[69][1984] VR 180.
[70]At 186.
[71][2001] VSC 53.
[72]At [31].

I agree, with respect, with the observation of Young CJ. So, in this case, the plaintiff must show an arguable case for relief, but the mere fact that she has an arguable (or even strong) case for relief is not without more a sufficient reason to extend time. With respect, I would not go so far as to say, as did Gillard J, that “the period of delay and the reason for it, whilst important, are not factors which carry much weight in the absence of prejudice and in the face of a strong claim”. In my view, such an approach carries the risk of unduly elevating the weight to be accorded the strength of the claim, when the Act confers a wide discretion to decide whether, in all the circumstances, time should be extended.

Turning then to the merits of the present case, in my view, it is arguable that the deceased failed to make adequate provision for the proper maintenance and support of the plaintiff. It is true that under the will the plaintiff received a legacy of $50,000 – which she said seemed like a lot of money for a recently married 24 year old in 1982 – and has the benefit of income from the capital sum invested for her. Be that as it may, the benefits received by the plaintiff under the will may be regarded as relatively modest when regard is had to the size of the estate ($8.2 million in 1982) and the fact that the plaintiff was a child of the deceased. It is not to be overlooked that the deceased was a man of considerable business acumen with the capacity and experience to appreciate the potential inadequacy of the amount he left his daughter both in terms of the amount of the capital sum and the depreciating value of money over time, and therefore the benefit of the trust as the years went by. Regarding matters as at the time of his death, it is readily and cogently arguable that the deceased should have made greater provision for his daughter, given that she was only 24 years old, recently married, without a career as such, and who in all likelihood would become a mother and carer of her children, and with all the vicissitudes and uncertainties of life ahead of her. In so concluding, I do not overlook that, although on one view the income form the Ashhurst Settled Fund is relatively modest, the plaintiff has also obtained the benefit of an interest free loan of $300,000 from the trustees, which has thereby reduced the amount of the capital in the Ashhurst Settled Fund and hence the income paid to her from that fund. And although the plaintiff’s matrimonial home is encumbered by this loan, she and her husband have had the benefit of an interest free loan and, if and when the house is sold, they are likely to make a capital gain referable to the extra equity they were able to obtain in the home which might not have been possible without the loan. Although counsel for the defendants did not emphasise this point, I take it into account and do not underestimate the value of this benefit to the plaintiff.

I reject the submission made by counsel for the defendants that the plaintiff has failed to establish an arguable case on the merits due to her alleged failure to provide evidence of her circumstances as at the date of the deceased’s death. Her circumstances at the time are clear enough, and would have been to the deceased in view of the apparent closeness of the plaintiff to her parents. I infer from the evidence that she had limited means at best. Certainly, there is no suggestion of independent means. She and her husband were starting out in their married life. In my view the facts bespeak moral duty and, arguably, provision beyond that provided.

In so concluding, I have regard also to the present circumstances of the plaintiff and her husband, mindful of the fact that on the substantive claim under Part IV, in determining what if any further provision is required to make proper provision for the maintenance and support of the plaintiff, the Court must ultimately have regard to the financial resources and needs of the plaintiff. That must be considered in light of the size and nature of the estate, the close family relationship between the plaintiff and her parents and their manner and style of living, the plaintiff’s health and otherwise the matters now specified in s 91(4) of the Act, they all being matters which would have been considered prior to their inclusion in the Act.

I now consider the sufficiency of the plaintiff’s explanation for delay in bringing her claim. It is clear that the executors made a conscious decision to only show the plaintiff and her sisters those parts of the will that related to them. It is also clear that she lacked awareness or understanding of her father’s wealth and his estate, and that she was not informed of those matters by her mother or the other executors. Indeed, these matters – the full will and awareness of the estate and a comparative understanding of the dispositions under the will – were deliberately kept from the plaintiff. The manner of dealing with the plaintiff manifested a paternalistic approach to the children that was consistent with, and reflected, the relationship with her parents described by the plaintiff. In the result the plaintiff was not a worldly wise person. It is not unreasonable to speculate that one reason at least for the daughters being kept in the dark on the full terms of the will and the size of the estate, and for Lady Ansett to thereafter field questions as she did, was to minimise the possibility of a claim under Part IV or, as the plaintiff put it in para 9 of her second affidavit, to challenge the will. But I do not decide the case on speculation. The fact is that the plaintiff’s ignorance of the full terms of the deceased’s will and of his estate was the direct and immediate product of the deliberate and calculated approach of the plaintiff’s mother and the other executors combined with her prevailing lack of awareness of her father’s asset position. The effect of that approach is to be understood in the context of the familial relationship, prior and subsequent to the death of the deceased, described by the plaintiff. Although the limited disclosure of the will did not constitute a breach of executorial duty as such, it led to a situation where the plaintiff remained unaware of the full terms of her father’s will until 2005. If, however, it was to be assumed that the plaintiff became aware of the full terms of her father’s will in August 2004 (that is, at the time she swore an affidavit in her sister’s proceeding), there was a delay of nine months before the plaintiff commenced her proceeding in May 2005. Although counsel for the defendants characterised this further delay as a simple (and inexcusable) failure of the plaintiff to “make up her mind”, that is too simplistic an explanation when regard is had to all of the circumstances.

As to that assumed nine month delay, it may be that the plaintiff took time to make up her mind whether to commence litigation. I do not however accept that she sat on the fence to see how her sister’s application went. I accept the plaintiff’s evidence that she has suffered from depression for a long time. In my view, it is understandable that a person so suffering might delay in deciding to commence litigation particularly where she lacked the ability to make decisions and she was reluctant to question what her parents had provided in their wills.

I do not overlook that counsel for the defendant said that the plaintiff did not call medical evidence as to her depression. Nevertheless, the defendant did not seriously challenge the veracity of the plaintiff’s evidence as to her medical condition. I note that in his first affidavit the first defendant deposed that[73]:

“I am unable to comment on the Plaintiff’s medical condition, save to say that I believe her to be intellectually strong. Whilst I am not a medical practitioner, I was able to ascertain from my research that lexipro (correct spelling lexapro) has been proven in clinical trials “to be an effective and well tolerated prescription medication that improves the quality and enjoyment of life for adults suffering from depression and generalised anxiety disorder.”

[73]First affidavit of Theodore Hertzl Moss, para 34. See Court Book, Tab 6.

It is not clear why an experienced solicitor having no medical expertise considered it appropriate to give such evidence. Even if I were to accept the truth of all that is said in the paragraph quoted above, it would hardly advance the defendants’ case. At its highest, assuming admissibility, the evidence might establish that the plaintiff, an intellectually strong woman, was taking effective medication against depression from August or October 2004, from which an inference might arise that any further delay by the plaintiff (between August or October 2004 and May 2005) was inexcusable because she was already taking medication which had assisted her in managing her depression.

I am prepared to assume that the plaintiff began taking lexapro in August 2004, and that this medication (along with the continued support of her husband) helped her focus sufficiently to finally commence proceedings in May 2005. Thus, I would assume that there was a further period of delay even when the plaintiff’s depression was being treated more effectively. But that does not necessarily mean that the extra period of delay was inexcusable. The exercise of the discretion to extend time ultimately depends on all the circumstances of the case. The assumed extra nine months of delay must be viewed in the context of a 23 year period, within which it assumes less importance. Further, it is not apparent that any additional prejudice would be suffered by beneficiaries as a result of a claim being commenced in May 2005 as opposed to August 2004. In my view, in all the circumstances the plaintiff has provided a sufficient explanation of her delay in bringing her application.

As to the question of detriment to beneficiaries, I consider that however the matter was put by counsel for the plaintiff, it is inevitable that if the plaintiff is permitted to bring a claim, there will in a sense be some prejudice to other beneficiaries under the will. The trustees of the trusts set up under the will may need to delay distributions until resolution of the proceeding and, to the extent that is so, the charitable institutions which might have received distributions from the trustees under the R.M. Ansett Trust will not so receive. In the case of charitable institutions, any further provision to the plaintiff ordered out of the estate will reduce the capital (and hence the income) making up the residuary estate from which the trustees might distribute in their favour. I bear this matter in mind. But to grant leave does not in itself mean that the interest of a beneficiary is otherwise affected. Furthermore, I bear in mind the size of the residuary estate as to which a substantial doubt exists because of the uncertainty over the value of Gunyong Valley. The value may be such as to render any possible diminution in value of the residuary estate by reason of an order in favour of the plaintiff so relatively slight as to warrant the conclusion that there was no relevant prejudice.

I am also of the view that there are not otherwise circumstances that would render an extension of time unjust or undesirable.

Taking into account all that counsel submitted and all of the factors mentioned above, I am of the view that in all the circumstances it is appropriate that the time for the plaintiff to make an application for further provision out of the estate of her deceased father be extended, and I will so order.

[2006] VSC 287

4 August 2006