Caird v Sims

[2004] VSC 52

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8970 of 2003

IN THE MATTER of Part IV of the Administration and Probate Act 1958

IN THE WILL AND ESTATE of Andrew Kidd Caird, deceased

Between:

ANDREW WALTER ERNEST CAIRD & ANOR	Plaintiffs
V
JON WILLIAM SIMS (who is sued in his capacity as Executor of the Will & Estate of Andrew Kidd Caird, deceased)	Defendant

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2004
DATE OF JUDGMENT:	10 February 2004
CASE MAY BE CITED AS:	Caird v Sims
MEDIUM NEUTRAL CITATION:	[2004] VSC 52

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Administration and Probate – Adult sons – Extension of time in which to apply for further provision out of father's estate – Administration and Probate Act 1958 s 99

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms Parker	Mulcahy Mendelson & Round
For the Defendant	Mr Moore	Paul Maginn

HIS HONOUR:        

1. This is an application to extend the time within which two adult sons might commence a proceeding under s.99 of the Administration and Probate Act for further provision to be made in their favour out of the estate of their late father. 

1. The will in question was made in July 2001.  It provided for certain specific devises and bequests and then left the residue of the estate to be realised and held on trust for a period of 25 years and the net income from it to be paid as to 20 per cent to the Salvation Army and 80 per cent to the two sons.  And at the end of 25 years the balance of the estate is to be paid to the two sons equally. 

1. The plaintiffs had been estranged from their father who, according to the affidavit of one of the sons, Andrew, had a bad history of alcoholism and brutality towards their mother.  The description of events at home indicate that life was not happy.

1. The sons did not discover the death of their father immediately.  It would seem from the affidavit in support and from a helpful affidavit which the solicitor for the executor, Mr McGinn, has sworn, that they took some time to come to terms with the fact of death and the provisions of the will.  And, although probate was granted in February 2002 it was not, in fact, until July 2003 that another solicitor again informed them of their right to make a claim under Part IV. 

1. Mr Moore has briefly and succinctly put such points as might be able to be put against an order extending time to apply under Part IV of the Administration and Probate Act.  First, he submitted that there was no adequate explanation, or really no explanation at all, as to why there was delay from July until 26 November 2003 when the application was filed.

1. It seems to me that that period of four months or so is not a very great time in the overall context.  Some 18 months or so had passed from the grant of probate.  And in respect of that period of 18 months no point can be taken against the applicants in terms of delay.

1. It was reasonable, I think, to expect some time to elapse on the plaintiffs discovering that they had a right to apply, and then for the usual sort of steps to take place to ascertain what the estate comprised of, and in that respect there was an uncertainty as to the amount of the benefit that he had in the Seamen's Union Fund. 

1. I think it would be taking a harsh approach to say, regarding the matter broadly, that one cannot understand why several months elapsed before the application was filed.  One has to be realistic about the pressures that operate on people, both potential parties and solicitors.

1. Secondly, it was submitted that there is prejudice if the application is granted.  Well, there may be prejudice to the Salvation Army, a charity.  It is not, I think, a possible prejudice that would warrant refusal of the extension. 

1. Thirdly, it was submitted that the claim is not strong.  I think, myself, on looking at the affidavit in support, that this is a particularly sad case in which it might be said that there is a relatively strong claim. 

1. A father who behaves in the way that this man is described as having behaved, might be said, and I think rightly, to have a correspondingly important duty at death to make such provision for his offspring as he is able to in order to aid them in their life and in part to make up for the misery that he had subjected them.

1. In my view it is an overwhelmingly proper case for an order that time be extended.  I notice that the originating motion was filed on 26 November.  I will order that the time within which the plaintiffs may apply for provision under Part IV of the Administration of Probate Act be extended until and including 26 November 2003.