Blyth v Spencer; Spencer v Neville

[2005] NSWSC 653

CITATION:	Blyth v SpencerSpencer v Neville [2005] NSWSC 653
HEARING DATE(S):	29/06/05
JUDGMENT DATE :	1 July 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
DECISION:	Paragraphs 60 and 61

CATCHWORDS:	Family Provision. Claim under the Family Provision Act by a de facto partner. Application out of time and a distributed estate. Held no special circumstances under s28(5)(d) and proceedings dismissed.
PARTIES:	Dianne Judith Blyth v Alexander Charles Spencer Alexander Charles Spencer v Ronald Frederick Neville - Estate of Betty Kathleen Neville and anor
FILE NUMBER(S):	SC 2246/04; 3337/04
COUNSEL:	Mr L. Ellison for Dianne Judith Blyth Miss E. Cohen for Alexander Spencer
SOLICITORS:	Marsdens Law Group for Dianne Judith Blyth Adams Partners for Alexander Spencer

LOWER COURT JURISDICTION:

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 1 JULY 2005

2244/04 - DIANNE JUDITH BLYTH v ALEXANDER CHARGES SPENCER & ANOR
3337/04 - ALEXANDER CHARLES SPENCER v RONALD FREDERICK NEVILLE ESTATE OF BETTY KATHLEEN NEVILLE & ANOR

JUDGMENT

1 HIS HONOUR: This is the hearing of two actions which, with the consent of the parties, I have ordered be heard together, the evidence in one being the evidence in the other.

2 The first is 2244 of 2004 and are proceedings brought by Mrs Blyth under s 66G of the Conveyancing Act for orders for sale of a property bequeathed equally to her, her brother and Mr Spencer, a long time partner of the deceased. The deceased Betty Kathleen Neville died on 18 March 2002 aged eighty-one years.

3 The Family Provision Act proceedings are matter number 3337 of 2004 and are brought by Mr Spencer against Mrs Blyth’s husband and brother, who are the executors of the deceased’s will. He seeks he be given a life estate in the house. As a resolution of that claim may impinge upon the ownership of the house, it is appropriate to first consider the Family Provision Act application.

The last will of the deceased

4 The last will of the deceased was made on 18 July 2001. Under that will she left the house at 104A Lindsay Street, Campbelltown to her two children and Mr Spencer equally. She left her debentures to two children and the residue of the estate she also gave to her two children. The deceased’s son, Mr Neville, Mr Blyth’s brother, has taken no part in the proceedings, although he has been served with process in both matters.

Assets in the estate

5 At the date of death there was the property in which the deceased resided, then having a value of some $160,000, although now thought to have a value of about $300,000. There was cash of $1178 and debentures of $3000. There have to be paid the funeral account and administrative expenses and, effectively, the only asset in the estate is the house. Costs being incurred in the matters are the plaintiff’s costs of the Family Provision Act, which are estimated at $35,200 and the defendants at $42,500.

Family history

6 The deceased was born on 17 March 1921 and Mr Spencer was born on 29 December 1930. The deceased’s husband died in 1963 and in 1972 Mr Spencer moved in and lived at the deceased’s home at Rudd Road, Leumeah. In January 1975 there were various statements made to the Department of Social Security by the deceased that she received an income from a boarder and that Mr Spencer was a boarder and not a de facto partner. The deceased bought the Lindsay Street property in 1976 and both she and Mr Spencer moved into it. Over the years from 1976 through to 1992 there were many statements completed by the deceased given to the Department of Social Security stating that Mr Spencer was simply a lodger and not a de facto partner. In 1994 Mr Spencer moved out of the Lindsay Street property and went to live with his family, namely, his children. On this happening the deceased told the Department that Mr Spencer had left Lindsay Street and was no longer a lodger. In that year Mr Spencer retired. He remained away but returned in 1996 and moved back to Lindsay Street.

7 It as on 18 July 2001, as I have said, the deceased made her will and she died on 18 March 2002. Probate was granted on 22 July 2002 and on 27 August 2002 the property was transferred to the three new owners as tenants in common. This plainly was a transfer to them as beneficiaries and was a distribution of the estate pursuant to the terms of the will.

8 Mr Spencer continued residing in the house after the date of the death of the deceased. He had some illness and towards the end of 2002 or early 2003 he lived at Mrs Blyth’s daughter’s place for several weeks when he was recuperating after an operation. He met a Mrs Beryl Sellwood in December 2002. Throughout 2003 he seemed to spend a substantial amount of time at Mrs Sellwood’s place. He conceded in cross-examination he spent forty to fifty nights there and that most days he would spend with Mrs Sellwood. In due course this became apparent to various members of the family. In May 2003 there was a letter to Mr Spencer from Mrs Blyth’s solicitor asking the property be sold on the basis that he was now not living there full time and looking after it. Various real estate appraisals were obtained. In June an application under s 66G was threatened and in July the solicitors, who were acting for Mr Neville and Mr Spencer, wrote making an offer to pay out Mrs Blyth’s interests. Precisely whom they were making the offer on behalf of is not clear. In any event, that offer was rejected in September 2003.

9 On 18 September 2003 the time limit under which an application was to be brought expired. In January 2004 some further market appraisals were obtained and in March 2004 there was a final letter saying that if nothing was done an application would be made under s 66G. That was filed on 1 April 2004 and was served on Mr Spencer at the residence of Mrs Sellwood in Dan Street, Campbelltown. A summons in the Family Provision Act matter was filed 9 June 2004.

Eligibility

10 The plaintiff claims he was the de facto partner of the deceased. Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999, which took effect on 28 June 1999, there was an extension of the Act which applied to proceedings that commenced after that date. The amended Family Provision Act incorporates the definition of a Domestic Relationship in the Property (Relationships) Act 1984. That Act applies to domestic relationships which are defined in s 5 as follows:

“5. Domestic relationships
(1) For the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or
(b) a close personal relations (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one of each of whom provides the other with domestic support and personal care.
(2) For the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care.
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government or government agency, a body corporate, or
a charitable or benevolent organisation).
(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:
(a) a child born as a result of sexual relations between the parties,
(b) a child adopted by both parties,
(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:

(i) of whom the man is the father, or

(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted,
(d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act
1998.)

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

11 It can be seen from the terms of s 5(1) that a domestic relationship can be either a de facto relationship or a close personal relationship.

12 The definition of de facto relationship appears in s 4 and is in the following terms:

“4. De facto relationships
(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another
or related by family.
(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of common
residence,
(c) whether or not a sexual relationship
exists,
(d) the degree of financial dependence
or interdependence, and any arrangements
for financial support, between the parties,
(e) the ownership, use and acquisition of
property,
(f) the degree of mutual commitment to
a share life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of
the relationship.
(3) No finding in respect of any of the matters mentioned in subsection (2((a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight in any matter, as may seem appropriate to the court in the circumstances of the case.
(4) Except as provided by section 6, a reference to this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

13 This definition apart from the provisions of sub-cl (1) merely reflects the existing state of the law as it has been developed under the De Facto Relationships Act 1984 and the Family Provision Act 1982. See Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Limited (1990) 21 NSWLR 677.

14 Apart from the exclusionary matters in s 5(2) there is no definition of “close personal relationship”. Little help is obtained from the reading speeches as to the meaning of “close personal relationship”. It is apparent from the terms of the separate definition of a de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1)(b) refers to persons “who are living together, one or each of whom provides the other with domestic support and personal care”. It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient. The “close personal relationship” has to be between two adult persons who are “living together”. Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a “de facto relationship” concepts relating to a “couple” are not relevant. Instead the definition calls for two different links. The first is that the parties are “living together”. The second is that “one or each of whom provides the other with domestic support and personal care.”

15 So far as the first requirement is concerned since one is not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow’s home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together.

16 The second requirement is cumulative. There must be both domestic support and personal care.

17 It is the provision of “personal care” which provides the clue to the meaning of the composite expression “domestic support and personal care”. Some of the primary meanings of “personal” include:

“(a) Of or pertaining to concerning or affecting the individual person or self; individual; private; one’s own.
(b) Of or pertaining to one’s person body or figure; bodily.”

18 Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:

(a) The person concerned.
(b) An employed valet or lady in waiting.
(c) A mother for her sick child or.
(d) A daughter for her elderly incapacitated mother.

19 The legislation in terms excludes the first two but would include the last two examples.

20 Mr Spencer contended that he was a de facto partner of the deceased and also within the last four years prior to the death of the deceased there was a close personal relationship and, thus, a domestic relationship within the terms of the Act. He gave evidence during the four years prior to her death he nursed and cared for her, attending to her personal needs, including bathing, dressing, cooking meals and all the matters of personal hygiene. The deceased had emphysema and this evidence was not disputed. Clearly he was in a domestic relationship at that time. The only question is whether he was a de facto partner in the earlier years of the relationship.

21 I will deal with the matters under various headings in the section.

Duration of the relationship

22 The relationship was from 1972 to 1994 and 1996 until the date of death.

The nature and extent of common residence

23 It was plain there was a common residence for the whole of the relevant period.

Whether or not a sexual relationship exists

24 There is no reason for me not to accept Mr Spencer’s evidence that such a relationship did exist. Although Mr Spencer obviously had some difficulties with his own dealings with the Department of Social Security, I am prepared to accept his evidence on this aspect that there was a sexual relationship between them.

The degree of financial dependence or interdependence or any arrangements for financial support between the parties

25 Both the parties had pensions. Each of them had a single pension and there was not a substantial amount of dependence. Initially in the 1970s Mr Spencer thought he was supporting the deceased and did not know that she had a pension. This question of whether they had separate pensions in the various declarations which were given to the Department of Social Security obviously is a matter which might indicate not interdependence and also tell against any de facto relationship. However, sad though it may be, this is very common and seems to be very commonplace in the Australian community. Many many people think it appropriate to mislead the Department and make false claims and that is so well known one rarely places little reliance upon such statements.

The ownership use and acquisition of property

26 The property was always owned by the deceased but one matter of note is that the plaintiff, Mr Spencer, sold his house and then used his funds to improve the property of the deceased and their lifestyle.

The degree of mutual commitment to a shared life

27 There is evidence from Mr Harding which attests to them living as an ordinary married couple and, given the length of the relationship, there seems to have been a mutual commitment. This is particularly evident from the work which Mr Spencer did on the house and also the care which he extended to the deceased in the last four years of her life.

The care and support of children

28 They had no children and this does not arise.

The performance of household duties

29 This was obviously shared between them.

The reputation and public aspects of the relationship

30 There is very little evidence, in fact none, on this aspect of the matter. Normally this is often dealt with in evidence but there is none here. It seems having regard to the fact that there was a sexual relationship that, in fact, although they lived a quiet life together I am satisfied that they were de facto partners.

Extension of time

31 Because the application is out of time it is necessary for the Court to consider s 16 of the Family Provision Act, which allows an application to be made notwithstanding it is out of time. There are a number of cases which refer to the principles to be applied in an application for extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said:

“It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed would 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.”

32 His Honour Young J in several cases has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (unreported NSWSC, 7 February 1986) he indicated that when looking at “sufficient cause” under s 16(3) of the Act the factors which one looks at include the following:

(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably
prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either
side which would enter into the equation?

33 Apparently he also accepts a view which was expressed by his Honour Needham J in Fancett v Ware (unreported NSWSC 3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported NSWSC 31 March 1988)

34 Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported NSWSC 8 September 1989).

35 In De Winter v Johnstone, a decision of the Court of Appeal on 23 August 1995, his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at p 23:

“In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief.”

36 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties’ approach of looking at the strength of the plaintiff’s case.

37 The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of “unconscionable”. He as dealing with an appeal from Master McLaughlin and he referred to the Master’s comments to the following effect:

“Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period.”

38 With regard to the Master’s comments, his Honour observed:

“... with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into a false sense of security. There is nothing to suggest anything of that sort in the present case.”

39 In the present case there is no unacceptable prejudice. What is important here is the explanation for the delay and whether there has been any unconscionable conduct.

40 In this case one of the reasons for delay was the change of heart on the part of the plaintiff. There are a number of cases where a change of heart has not been held to be sufficient reason. In Re Lauer (1984) VR 180 it was held that the mere fact that the applicant’s financial position had deteriorated cannot of itself be a ground for granting an extension of time under the Act nor could the mere fact that the value of the estate had been inflated beyond what might have been expected at the date of the testator’s death be such a ground.

41 Re Lauer was followed by Young J in Bearns v Bearns-Hayes (unreported 6 May 1997). In that case for a period of two years until late 1994 the plaintiff had no intention of making a claim as she had assurances from her family that her position with her home was secure and she had sufficient income. In late 1994 arguments broke out in the family as a result of which the plaintiff felt abandoned by her family and that she could not rely on the loose arrangements previously in place. His Honour found that this was not a sufficient reason.

42 Relevant considerations in the present case include the plaintiff’s understanding of whether he was to be permitted to stay in the house after the deceased’s death. This was because the deceased had told him so on a number of occasions. However, the plaintiff was aware a few days after the death of the terms of her will and he knew that no such provision had been made for him in the will of the deceased.

43 The deceased died on 18 March 2002 and the time for making the application expired on 18 September 2003. Before the time expired, however, things came to a head as in a letter of 27 May 2003 the solicitors for Mrs Blyth wrote to him and said the following:

“We are instructed that an agreement was reached whereby Mr Spencer could reside at the property free of charge provided that he continued to reside at the property and that he continued to maintain the same. In this regard we are instructed that Mr Spencer no longer resides at the property despite his assertions to the contrary and that he only visits the property approximately once per week.
Our client is therefore concerned with the following matters.

1. For the security of the property.
2. That the asset is not being realised to its full earning potential.
3. That the state of the property is deteriorating.

Our client has therefore instructed us to write to you and request that you consent to the sale of the property with the proceeds being split equally between the three owners.”

44 Although there is a reference to an agreement, Mr Spencer gave no evidence of such agreement being made after the date of death and Mrs Blyth denied that there was such an agreement.

45 By letter to the estate’s solicitors on 20 June there were further threats of s 66G proceedings. At this stage solicitors had previously seen Mr Spencer and had acted for him. Then the valuations of property were obtained to which I have referred.

46 In July 2003 there was the offer to purchase Mrs Blyth’s share, which was rejected in September. Further threats to proceed were made in March 2004 and proceedings were duly commenced and Mr Spencer was served at Mrs Selwood’s house. He then got new legal advice on 21 May 2004, when he found out for the first time about the Family Provision Act and his entitlement to bring proceedings.

47 I do not think there has been any unconscionable conduct on the part of Mrs Blyth as she had made her position perfectly plain well before the time for making an application expired. Plainly Mr Spencer has gone along with proposals for sale through his previous solicitors in ignorance of his rights under the Family Provision Act. Once he became aware of those rights he moved promptly and commenced proceedings. I accept his explanation for the delay and, accordingly, think it appropriate to extend time for commencing the proceedings.

48 In applications under the Family Provision Act the High Court has set out the approach to be adopted. In Singer v Berghouse (1994) 181 CLR 201 at 209 the following was said:

“The first question is, was the provision (if any) made for the applicant ‘inadequate for (his or her) proper maintenance, education and advancement in life?’ The difference between ‘adequate’ and ‘proper’ and the interrelationship which exists between the ‘adequate provision’ and ‘proper maintenance’ etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.
The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator’s arrangements to pay creditors.”

49 I turn to the plaintiff’s situation in life. The plaintiff is single. He is seventy-four years of age. He has no dependants. He survives on an old age pension and he has no assets apart from a car and some jewellery. Medically he is quite weak. He suffers from ischaemic heart disease and obstructive airway disease and a number of other problems. He has had some serious operations in relation to his heart over recent years. He has made contributions to the estate property. He converted it into a three bedroom house with a family room and he has done work in the bathroom and kitchen. The extent of these matters has not been quantified. I have already referred to his relationship with the deceased and obviously it was a good one. He was very caring in his later years when she was sick.

50 It is necessary to consider others having a claim on the bounty of the deceased. There was no evidence from Mr Neville so the Court can assume he does not want his situation to be taken into account.

51 I turn to the situation of Mrs Blyth. She is married with no dependant children living with her. She does, however, support her seven grandchildren with school fees to the sum of $7,093 per quarter and she has arrears of some $9,000. She and her husband own their house at Glen Alpine, having a value of $495,000, which is subject to a mortgage of $240,000. They have a two thirds interest in their daughter’s house and have a net interest in that of $110,000. She has a car worth $20,000 on which is owed $7,300. She has superannuation of $77,000 and other liabilities of $21,243. She works as an administrative officer earning $41,000 gross per annum and her husband earns $70,000 per annum as a courier. Clearly they also had a good relationship with the deceased, although they did not contribute to the purchase of the house.

52 In this matter the plaintiff wants a life estate but the evidence of the costs now to be paid will make it absolutely inevitable that the house will have to be sold. Another matter is that there is no estate as the house has been distributed to the beneficiaries. The application is out of time and under s 28(5)(d) special circumstances must be demonstrated before a notional estate can be designated. Section 28(5) provides as follows:

“On an application in relation to a deceased person, being an application:
(a) made pursuant to an order under s 16
allow the application to be made; or

(b) for an order under s 8 for additional
provision, the court shall not make an
order designating property as notional
estate o the deceased person by reason
of a prescribed transaction or a
distribution unless it is satisfied:

(c) that:
(i) the property was the subject of
the prescribed transaction or
distribution.

(ii) the person by whom it is held holds
the property as a result of the
prescribed transaction or distribution
as trustee only; and

(iii) the property is not vested in interest
in any beneficiary under the trust; or
(d) that there are other special circumstances
(including, in the case of an application
made as referred to in par(a), the
incapacity during any relevant period, of
the person by or on whose behalf the
application is made) which justify the
making of an order so designating the
property.”

53 In relation to this case the relevant section is s 28(5)(d). Apart from stating incapacity as a special circumstance the sub-section gives no other indication of what constitutes such special circumstance. However, it is clear that s 27 applies when a claim is made both before and after the time limited by s 16. Section 28(5) in a case where an extension is to be allowed may thus be thought to impose either a further requirement over and above the matter, which a court will consider under s 27 or merely a requirement that a circumstance be “special”. In s 28(5)(d) the word “other” is used in describing “special circumstances”. That I think is grammatically a reference to the matter appearing in s 28(5)(c). It may be that the matter in s 28(5)(c), namely a discretionary trust, was thought to be a special circumstance. A question which arises is whether a circumstance which may be taken into account under s 16 can also be taken into account as a special circumstance under s 28(5)(d). In Dare v Furness (1998) 44 NSWLR 493 Cohen J decided that infancy was a factor which could be considered, though not determinative, under s 16. It could also, he held, be considered under s 28(5)(d) as a special circumstance. In Lewis v Lewis [2001] NSWSC 321 Hodgson J considered the section and said at par 85:

“The requirement of ‘special circumstances’ has been considered a more difficult hurdle than s 16 see Bearns . Section 28 itself gives some indication of the types of circumstances that may count as special circumstances, circumstances involving such things as property not finally vesting in interest, and lack of capacity in the plaintiff. It was submitted for the plaintiff that his mental disability would provide special circumstances: however, as submitted by the defendants, that was not put forward at the hearing as a matter constituting special circumstances, and I do not think any significant weight can be given to it. However, I do not think that special circumstances are limited to the types of circumstances suggested by s 28 itself or circumstances closely analogous to them: for example, in my opinion, a very significant change of circumstances, from circumstances where there was little point in a Family Provision Act application to circumstances where the plaintiff had extreme need and consequently a strong case, could amount to ‘special circumstances’.”

54 I have some doubt about his Honour’s example as there are a number of judges who consider that the example posited would not even be a sufficient explanation for a late claim.

55 The Act has a series of provisions which provide various gateways for making orders under s 7 of the Act. The various gateways commenced with the class of persons who may make claims and progresses through other matters such as the time within which a claim has to be made. There are also additional gateways which concern either distributed estates or estates that have passed by means other than a will into the hands of beneficiaries or persons whom the deceased wish to benefit. The provisions in s 28(5)(d) only apply in cases where an extension of time is necessary or an application is made for subsequent provision under s 8. That latter presupposes that there was an earlier application under s 7. In both those circumstances it can be expected as a matter of course that the estate would be distributed or parties may have conducted themselves on the basis that the dispositions at the death of the deceased will not be affected by claims of dependents. This additional gateway in respect of this area of late or further claims has a further gateway which requires special circumstances. The purpose really is to provide additional protection to persons taking under the will or under prescribed transaction and who have ordered their affairs on the basis that time has expired.

56 The special circumstances suggested by the plaintiff were as follows:

“1. The fact that one of the executors supported the plaintiff remaining in the house.

2. The fact that no prejudice is suffered by any of the beneficiaries by reason of a life tenancy being imposed now rather than at a time prior to September 2004. There is no prejudice suffered by any of the beneficiaries and, in act, this is what two of the three beneficiaries wish.

3. There was a substantial change in circumstances in the plaintiff’s situation after the service of the s 66G proceedings.

4. There was no need for the plaintiff to commence Family Provision proceedings under s 66G proceedings were served.

5. While Mrs Blyth said in her evidence at the hearing that she did not instruct her solicitor to write the two letters of 14 and 27 May 2003, the fact that he did write the letters did give a sense of security to the plaintiff that there was such an agreement.

6. The fact that Mrs Blyth waited until April 2003 to exercise a right and the fact that in her solicitor’s letter of May 2003 she admitted that there was an agreement for the plaintiff to remain in the house.

7. The plaintiff was represented by a solicitor who did not notify the plaintiff until after the s 66G proceedings had issued and after the time limits had expired pursuant to the Family Provision Act that he had a conflict of interest acting for the estate and acting for the plaintiff when it was clear that the plaintiff wished to remain in the house.

8. The beneficiaries are not prejudiced by the delay as the estate was distributed four months after the death of the deceased and they have not changed their position within that time.”

57 I will now deal with them under the headings referred to by counsel for the plaintiff:

1. This is contrary to the evidence. The other executor gave no evidence to that effect. In fact, gave no evidence at all.
2. This matter has already been considered in the s 16 factors and is not, in my view, a separate and special circumstance.
3. I do not see what these substantial changes in the circumstances of the plaintiff are said to be. He knew well within time of the threat to his ability to stay in the house and that was known to him well before the s 66G proceedings were served.
4. This I do not think is tenable. The statute provides when applications are to be made under the Family Provision Act. T he statute requires them to be made within a certain time.
5. In my view there is no sense of security having been created as a result of the solicitor’s letter. Plainly Mr Spencer was at risk of being evicted and what happened was he went along with proposals to sell the house.
6. I have already found that there was no such agreement as referred to here.
7. The fact that a solicitor failed to advise him of any rights he might have under the Family Provision Act may explain the s 16 matters but I do not see it as constituting some other special circumstance within the section.
8. As I have said, I do not think there is any prejudice apart from matters in general in delay. One would have thought if absence of prejudice was to be the criteria it be spelt out in s 28(5)(d) rather than the use of the phrase “in special circumstances”.

58 In these circumstances I find that there are no special circumstances and, therefore, there can be no designation of notional estate.

59 I note that no alternative case for a life estate was presented and the plaintiff’s submission that the defendant should meet the costs are without foundation having regard to the position of the executors.

60 Accordingly, in the Family Provision Act proceedings I dismiss the claim and order the plaintiff to pay the defendant’s costs on a party/party basis.

61 In matter 2244 of 2004 I note there was no agreement not to sell and, accordingly, the plaintiff is entitled to appointment of trustees for sale. I will stand he matter over to a convenient date to allow evidence in respect to the proposed trustees.

62 Both matters are stood into my list on Friday 5 August 2005 at 10 o'clock. Exhibits can be returned.

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