Clark v Burns
[2011] VSC 394
•8 August 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 3923 of 2010
| AMANDA CLARK | Plaintiff |
| v | |
| SANDRA PATRICIA BURNS | Defendant |
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JUDGE: | HARGRAVE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2011 | |
DATE OF JUDGMENT: | 8 August 2011 | |
CASE MAY BE CITED AS: | Clark v Burns | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 394 | |
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ADMINISTRATION AND PROBATE – Testator’s family maintenance – Application to extend time to bring application for provision – Application granted – Administration and Probate Act 1958, s 99.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms U Stanisich | Simon Parsons & Co |
| For the Defendant | Ms C Spark | Pearsons |
HIS HONOUR:
The applicant applies for leave to commence a proceeding seeking provision from her grandmother's estate out of time. The relevant time limit is six months from the grant of probate, unless the Court grants leave to commence a proceeding after that time.[1] The application was heard in the Practice Court and these reasons were delivered orally.
[1]Administration and Probate Act 1958, s 99.
The application is opposed by the applicant’s mother, who is the executrix under the will, has been granted probate and is the only relevant beneficiary. By the will, the respondent inherits two unencumbered residential properties in Gladstone Park, each valued at approximately $350,000, together with cash and shares totalling approximately $450,000. The total estate is thus approximately $1,150,000.
If an order for further provision were to be made, the evidence as a whole indicates that there is arguably some capacity for the estate to fund proper provision for both applicant and respondent.
The application is opposed.
In considering such an application, the Court considers the following issues in exercising a broad and unfettered discretion to grant or refuse leave to commence a proceeding out of time:
(1) the length of the delay and whether it has been sufficiently explained;
(2) the prospects of success of the proposed claim;
(3) whether the granting of the application would cause any prejudice to the estate or the beneficiaries.[2]
[2]For example, Corbett v State Trustees Ltd [2010] VSC 481, [57].
I consider first the question of delay. The delay must be explained. Where the delay is not unduly long and the estate remains undistributed, as here, ignorance during the six month period of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation.
In this case there was some evidence from the respondent that the applicant should have known of her right to make a claim within the six month period, because she says she told the applicant that her uncle, who had been excluded from the will, had six months to make a claim. This evidence is not contradicted. However, in the absence of uncontradicted evidence that the applicant was told in direct terms that she had six months to make a claim, I accept the applicant's evidence that she did not know of the six month time limit for the making of a claim, and that she was in any event waiting for her mother to confirm when probate had been granted.
I am satisfied that the delay has been adequately explained in all the circumstances.
In reaching that conclusion, I have considered the submission by counsel for the respondent that, taking the evidence as a whole, it should be inferred that the applicant knew of the six month time limit but consciously delayed her claim in knowledge that probate had been granted. I do not accept that submission.
The applicant did not seek legal advice until March 2010 and this application was made promptly thereafter.
I turn to consider whether the applicant's evidence makes out an arguable case for relief. For an application to extend time to be rejected on this ground, the court would need to be satisfied that the proposed claim was hopeless.[3]
[3]Ansett v Moss [2007] VSCA 161, [11].
I have considered all of the affidavit evidence. Beyond agreement as to the familial relationships and that both applicant and respondent lived with their grandparents and parents respectively for 26 years, the evidence is diametrically opposed. The factual disputes cannot, of course, be resolved on a conflict of affidavits.
Accordingly, the prospects of success must be judged on the premise that the applicant's version of events may be established at trial, unless her evidence is so unreasonable or contradicted by contemporaneous documents and could not be true. This is not a case of that kind.
Taking the applicant's evidence as a whole, I am satisfied that the proposed proceeding has some prospect of success. It is undesirable that the Court express detailed reasons on an application such as this as to why that is so, as the evidence is not all in and the merits have been argued on a preliminary basis only. However, if accepted, the applicant's evidence would or may establish a number of the relevant factors listed in s 91(4) of the Act, which matters have often been significant in determining that a deceased had a moral obligation to make adequate provision for the claimant. For example, if accepted, the evidence may establish that the estate is sufficiently large to make adequate provision for both applicant and respondent; that the applicant has significant financial needs (she was 40 at the death of her grandmother, had a dependant child, owned no real estate and had a modest income only); that the applicant contributed to the welfare of her grandmother; and that her grandmother (and her grandfather while he was alive) assumed a responsibility to maintain her at relevant times.
Of course, as pointed out by counsel for the respondent, even if these factors are all established at trial, they may all be outweighed by significant benefits provided to the applicant by her grandparents. However, whether or not that is so will depend upon all the evidence at trial. It cannot be finally determined on an application such as this.
Counsel from the respondent also relied upon the comment of Dodds‑Streeton J in MacEwan Shaw v Shaw,[4] where Her Honour noted that the authorities indicated that provision by a testator of benefits to his or her child and a grandchild, in this case providing accommodation and housing to the respondent and her daughter, the applicant, does not ‘without more give rise to a direct dependency or responsibility to provide.’
[4](2003) 11 VR 95, [79].
In my view that is an insufficient basis to determine now that the proposed claim is hopeless. There is, arguably at least, a ground to distinguish these comments. The applicant did not only live with her mother, the respondent, in the grandparents' house while she was a child for whom the respondent had direct responsibility to provide. The applicant moved back into the grandparents' home as an adult with her own child and lived there for a substantial period before her grandmother's death. In that time, it is at least arguable that the grandparents assumed a separate responsibility to provide for the applicant.
I turn to consider the final factor which is generally relevant to the court's discretion. Would an extension of time cause material prejudice to the estate of the beneficiaries? The respondent accepts that there is no financial prejudice. The estate remains undistributed. The respondent lives in one of the two properties, the family home, and lives off the income of the other property, the cash and the shares. She is apparently in her 60s and not now working, but her recent decision to cease work is not said to relate to the failure of the applicant to bring her claim in time and no prejudice is asserted on that ground.
The sole ground of prejudice relied upon is the severe stress being suffered by the respondent, which the respondent contends is the direct result of the applicant making this application out of time.
Principal reliance was placed upon a letter dated 8 July 2011 from the respondent's treating general practitioner, in which it is stated that the respondent's current problems with severe stress and consequent decline in her physical health commenced in February this year when the respondent first learned that the applicant intended to make a claim against the estate. The doctor's report materially provides:
…[The respondent’s] current problems date back to FEB. this year when she learnt that one of her daughters [the applicant] had taken legal action to claim a share of [the respondent’s] mother’s estate.
Initially this made [the respondent] very angry and has caused her a lot of mental anguish since, because she feels her daughter had no right to do so.
As a consequence she has been suffering from severe on-going anxiety with symptoms of agitation, shakiness and inability to concentrate.
She also has bad insomnia, plus constant nausea, which has affected her appetite.
On a couple of occasions recently [the respondent] has been talking about suicide and thinking of ways to kill herself, so there is obviously a significant underlying degree of depression as well.
…
[The respondent] is adamant she is not well enough to attend court, because she feels she will physically collapse if she comes face to face with her daughter, and has to answer barristers’ questions.
I can fully understand if she does not do so, but nevertheless have advised [the respondent] that her appearance in court could be beneficial to her case.[5]
[5]Medical report of Dr P G Marsh dated 8 July 2011.
The doctor's letter is supported to some degree by the respondent's sworn evidence. However, I am not satisfied on the evidence that the respondent's stress results from the lateness of the applicant's proposed claim. The doctor's evidence is that it is the making of the claim which has caused the stress, because the respondent feels that the applicant has no right to claim a share of her grandmother's estate. The respondent's anger and stress are understandable, particularly because of the content of her daughter's affidavit, which I note was not served until late April this year, but the stress results from the claim itself and not from its lateness.
Taking the evidence as a whole, I am satisfied that the court should exercise its discretion to extend the time for the applicant to make an application for provision from her late grandmother's estate.
The court will order that the time for commencing this proceeding is extended until the date it was filed and served on the respondent.
(Discussion re orders)
I will make orders in accordance with the draft order provided by counsel. I will reserve the costs of the application to extend time.
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