JUDGE:	KYROU J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	21 October 2010
DATE OF JUDGMENT:	27 October 2010
CASE MAY BE CITED AS:	Corbett v State Trustees Limited
MEDIUM NEUTRAL CITATION:	[2010] VSC 481

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TESTATOR’S FAMILY MAINTENANCE – Application for an extension of time within which to make a claim under Part IV of the Administration and Probate Act 1958 for further provision from a deceased estate – Whether the applicant had a satisfactory explanation for the delay – Whether a claim by the applicant under Part IV would be hopeless and bound to fail – The applicant was a family friend of the deceased and had a relationship with him which was akin to that of niece and uncle – Application dismissed – Administration and Probate Act 1958, ss 91, 99.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C H Sparke	Rudstein Kron Lawyers
For the Defendant	Ms C R McOmish	State Trustees Limited

TABLE OF CONTENTS

Introduction and summary...................................................................................................... 1

Relationship between Mr McTeggart and Ms Corbett......................................................... 2

Affidavits of Ms Corbett and her daughters......................................................................... 2
Ms Corbett’s childhood relationship with the McTeggarts................................................. 3
Ms Corbett’s relationship with the McTeggarts after her marriage.................................... 4

Relationship between Mr McTeggart and Ms Morgan........................................................ 7

Dealings between Ms Corbett and State Trustees after Mr McTeggart’s death................ 8

Principles relevant to applications for extensions of time under s 99 of the Act............. 12

Satisfactory explanation for delay....................................................................................... 13
Prospects of success............................................................................................................. 13

Has Ms Corbett satisfactorily explained her delay?............................................................ 16

Is Ms Corbett’s claim for further provision out of the Estate hopeless?........................... 17

Factor (e): relationship between Mr McTeggart and Ms Corbett..................................... 17
Factor (f): Mr McTeggart’s responsibilities to Ms Corbett and Ms Morgan.................... 20
Factor (g): the size and nature of the Estate....................................................................... 20
Factor (h): financial resources and needs of Ms Corbett and Ms Morgan....................... 20
Factor (i): any disability of Ms Corbett or Ms Morgan..................................................... 21
Factor (j): Ms Corbett’s age................................................................................................ 22
Factor (k): Ms Corbett’s contribution to building up the Estate...................................... 22
Factor (l): benefits previously given to Ms Corbett or Ms Morgan.................................. 22
Factor (m): whether Mr McTeggart maintained Ms Corbett........................................... 22
Factor (n): liability of any person to maintain Ms Corbett............................................... 22
Factor (o): the character and conduct of Ms Corbett........................................................ 22
Factor (p): any other matter the Court considers relevant................................................ 23

Mr McTeggart’s promises to leave the Abbotsford house to Kelly and Candice....... 23
Prior wills....................................................................................................................... 23

Did Mr McTeggart have a responsibility to make provision for Ms Corbett?................. 24

Conclusion................................................................................................................................ 27

Proposed order.......................................................................................................................... 27

HIS HONOUR:

Introduction and summary

This is an application by the plaintiff, Catherine Corbett, under s 99 of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Corbett v State Trustees Ltd

Details

AGLC: Corbett v State Trustees Ltd [2010] VSC 481
Case: [2010] VSC 481
Decision Date: 27 October 2010

CaseChat Overview and Summary

Corbett v State Trustees Ltd was an application by the applicant, who had a close relationship with the deceased, to extend the time within which to make a claim under Part IV of the Administration and Probate Act 1958 for further provision from a deceased estate. The case was heard in the Supreme Court of Victoria. The applicant sought an extension of time to claim under the Act on the basis that there was a satisfactory explanation for the delay and that the claim was not hopeless and bound to fail.

The legal issues before the court were whether the applicant had a satisfactory explanation for the delay in making the claim and whether the claim was hopeless and bound to fail. The court considered the nature of the relationship between the applicant and the deceased, the circumstances of the delay, and the prospects of success of the claim. The court noted that the applicant had been a family friend of the deceased and had a relationship with him which was akin to that of niece and uncle.

The court dismissed the application on the basis that the applicant had not provided a satisfactory explanation for the delay and that the claim was hopeless and bound to fail. The court found that the applicant had not provided a satisfactory explanation for the delay in making the claim, and that the delay was significant. The court also found that the applicant’s prospects of success in the claim were extremely low, given the nature of the relationship between the applicant and the deceased and the circumstances of the case. The court noted that the applicant had not provided any evidence to support her claim, and that there was no evidence to suggest that the deceased had made any promise or representation to provide for her in his will.

The court made no orders in relation to the application. The applicant was required to bear her own costs of the application.

Orders