Barwick v Tasmanian Trustees Limited

[1990] TASSC 136

Serial No B59/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Barwick v Tasmanian Trustees Limited [1990] TASSC 136; B59/1990

PARTIES:  BARWICK
  v
  TASMANIAN TRUSTEES LIMITED

FILE NO/S:  M80/1989
DELIVERED ON:  10 October 1990
JUDGMENT OF:  Crawford J

Judgment Number:  B59/1990
Number of paragraphs:  12

Serial No B59/1990
List "B"
File No M80/1989

BARWICK v TASMANIAN TRUSTEES LIMITED

REASONS FOR JUDGMENT  CRAWFORD J

10 October 1990

1. The applicant seeks an extension of time, pursuant to s11 (2) of the Testator's Family Maintenance Act 1912, in which to make an application for provision out of the estate of his late father who died at Hobart on 28 November 1988. The deceased left surviving him two sons, being the applicant and Leo James Barwick, and a daughter, Mrs Brocklehurst. The applicant was born in 1932 and so the deceased must have been an elderly man at the time of his death. His wife, the applicant's mother, predeceased him on about 6 October 1988, less than two months before his death.

1. Probate of the deceased's will was granted on 17 May 1989 and so the three month time limit in s11(1) of the Testator's Family Maintenance Act 1912 expired on 17 August 1989. This application was filed on 10 November 1989 as was an originating application for provision out of the estate. Accordingly, the applicant only seeks an extension of time until 10 November 1989.

1. The deceased's executor, the respondent to this application, does not oppose an order extending time. The deceased's daughter, Mrs Brocklehurst, made a separate application for provision out of the deceased's estate within the three month time limit and that application has not yet been heard. She was represented on the hearing of this and she does not oppose it. The only person opposing the making of the order extending time is the applicant's brother, Leo James Barwick, to whom the deceased left his entire estate. The estate has not been distributed and will not be at least until Mrs Brocklehurst's application has been resolved.

1. The deceased's will was dated 6 July 1956. He bequeathed to his wife $2000 and devised and bequeathed the rest of his estate to his son, Leo James Barwick, with a gift over in the event of prior death to his wife, the applicant and Mrs Brocklehurst as tenants in common in equal shares if they were living at the date of Leo's death.

1. The net value of the deceased's estate is approximately $225,000. One asset significant to this application is a house and land at 43 Blackwall Road valued at $51,500.

1. Evidence was received by me in the form of affidavits of the applicant and his solicitor. Oral testimony was also given by the applicant. He expressed the basis of his claim for provision out of his father's estate as being financial assistance his mother obtained from him to his substantial detriment, as a result of which his mother promised to leave him in her will the property at 43 Blackwall Road. However, it transpired that that property was owned by his mother and the deceased as joint tenants and because she died shortly before the death of the deceased, it passed by survivorship to the deceased, notwithstanding that in her will dated 11 April 1988 she purported to devise it to the applicant for his own use absolutely. If she had lived for another two months the applicant would have inherited that property and he would not be seeking any provision out of his father's estate.

1. The evidence of the applicant made it clear that at all material times his only desire has been to obtain ownership of 43 Blackwall Road. He lives in North Rockhampton in Queensland. He is unemployed as is his wife. He rents his home. He has few assets.

1. When giving evidence the applicant had difficulty explaining clearly what he did about claiming a provision from his father's estate early in 1989. It would seem that he contacted a legal aid officer in Queensland, after talking to his sister. He was more concerned about his mother's will than that of the deceased. He was hopeful that his brother Leo would let him have 43 Blackwall Road without opposition. He was given some advice that Tasmanian law varied from Queensland law and that he should legal advice from Tasmania. In about February 1989 he sent a legal aid application to Tasmania but heard nothing in reply. He did not push the matter along because he thought that Leo might give him 43 Blackwall Road. He wished to avoid any trouble by applying pressure. However on 28 August 1989, he was served with his sister's application for provision out of the deceased's estate and he immediately sought legal advice. By 4 September 1989, he had instructed his Launceston solicitor by telephone. By that time he was a few days past the three month time limit. As I have said, this application was filed on 10 November 1989. Although he seemed to concede that in early 1989 the Queensland legal aid office had mentioned that time limits varied from State to State, his evidence was that he was not aware of the three month time limit in Tasmania until informed of it by a Tasmanian solicitor on 30 August 1989, which was after the three month limit had expired.

1. In all these circumstances it is just and proper that the order be made. The delay was short. The reason for it has been satisfactorily explained. No prejudice to his brother Leo has been demonstrated. The executor is content that time be extended.

1. Counsel referred to In re Wherrett [1963] Tas SR 178. It is sufficient to quote passages from the judgment of Crisp J as to relevant principles involved with these applications. At p179, his Honour said:–

"The Act gives no guide to the principles which the court should apply in exercising its discretion and I am informed that there is no report of any contested case in this State in which they may have been considered. It is plain of course that such applications are not to be granted as a matter of course, because to do so would be to make the statutory limitation of time nugatory. One obvious matter, the inconvenience of unsettling administrative steps taken and completed, is expressly taken care of by the statute to the disadvantage of the applicant, though of course there may well be steps taken falling short of final distribution in the preservation and protection of assets and carrying on of businesses which may be affected by claims tardily made, and these should be considered."

At pp179–180, Crisp J continued:–

"But a perusal of a number of these cases confirms me in my belief that it would be unwise to attempt exhaustively to contain the discretion conferred by the statute within finite principles. It has been said over and over that each case must in the outcome depend on its own circumstances and though this as a formula is of little positive help it does recognise that broad equitable considerations may properly play a part. The section may be considered as laying down a rule of procedure which has the utilitarian purpose of enabling executors to proceed with the realisation and distribution of an estate with some certainty that (once the interval fixed by the Act has expired) the steps they take will not be disturbed. It is also a matter of public utility that the expectation of those nominated by the testator as objects of bounty should not forever be contingent upon the decision of those who may have been excluded to come in and claim. Accordingly those who seek to be excused compliance with the primary requirement of the statute must show some ground for relief, be it inexperience, ignorance or excusable misapprehension. Unexplained or inexcusable delay would properly be a bar, but for myself I would be slow to penalise hesitation on the part of the young in throwing a stone of discord into the pool of family sentiment."

The fact that the applicant is not young does not require a different approach.

1. I reserved my judgment in this matter because I wanted to consider the question whether the applicant displayed prima facie a good claim against the deceased's estate. His claim is really based on a duty owed to him by his mother. He does not purport to have a claim against the estate of his father except in so far as that claim stems from his mother's duty to him. I have resolved this problem on the basis of being satisfied that the claim would at least be arguable.

1. Being satisfied that the cause of the delay has been satisfactorily explained, the delay itself was short and no prejudice has occurred as a result, it is just and proper that the application be allowed. Accordingly, there will be an order extending the time limited by s11(1) of the Testator's Family Maintenance Act 1912 for the making of an application for provision out of the estate of the deceased until 10 November 1989.