Day v Raudino - [2009] VSC 463

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8002 of 2009

IN THE MATTER OF Part IV of the Administration and Probate Act 1958 - and - IN THE MATTER OF the Will and Estate of Colin Keith McManus (deceased)
BETWEEN
BENITA DORETTE DAY and HELENA LOUISE TROY	Plaintiffs
- and –
MARYLYN MARGARET RAUDINO, MURRAY RODERICK McMANUS and PETERIA LOUISE BAILEY (who are sued as the executors of the estate of Colin Keith McManus deceased)	Defendants

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2009
DATE OF JUDGMENT:	14 October 2009
CASE MAY BE CITED AS:	Day & Anor v Raudino & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 463

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TESTATOR’S FAMILY MAINTENANCE – Application for extension of time to bring claim – Adult grandchildren of testator – Small period of delay – Explanation – No prejudice to estate or to beneficiaries – Arguable claim – Administration and Probate Act 1958 Part IV ss 91, 99.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Dickenson	Rogers and Every
For the Defendants	Ms C Sparke	Darrer Muir Fleiter

HIS HONOUR:

This is an application by two plaintiffs, pursuant to s 99 of the Administration and Probate Act 1958 (the Act), for an extension of time to commence proceedings for provision under s 91 of the Act.

The plaintiffs are the grandchildren of Colin Keith McManus, who died on 17 November 2007. Mr McManus (“the testator”) left a will dated 28 August 1998, by which he appointed the three defendants to be his executors and trustees. Probate of the will was granted to the defendants on 3 November 2008. The testator left a gross estate valued, for probate purposes, in the sum of $1,791,051.

Mr McManus had nine children. The plaintiffs’ father, Dougald Keith McManus, was the eldest son of the testator. Dougald McManus himself died on 18 November 1981. Another son of Mr McManus, Ian Alexander McManus, also predeceased the testator. By his will, the testator divided his estate into seven parts, and established seven discretionary trusts. Each of the seven surviving children of the deceased is a “primary beneficiary” of one of those trusts. The trusts also include other grandchildren of the testator within the definition of “general beneficiaries”.

The present application was commenced, by originating motion, on 28 July 2009, almost three months after the expiration of the time fixed by s 99 for the institution of an application for further provision out of the deceased’s estate.

The Court has a wide discretion in determining an application for an extension of time under s 99 of the Act. Ordinarily, the exercise of the discretion involves issues such as the length of the delay in making the application, the reasons for that delay, any prejudice to the estate and the beneficiaries, and the question whether the plaintiff has an arguable case for relief under s 91 of the Act.[1]
[1]Ansett v Moss [2007] VSCA 161,…

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 Day v Raudino

Details

AGLC: Day v Raudino [2009] VSC 463
Case: [2009] VSC 463
Decision Date: 14 October 2009

CaseChat Overview and Summary

In the matter of Day v Raudino, the court was called upon to consider an application for an extension of time to bring a claim under the Administration and Probate Act 1958. The application was made by the adult grandchildren of the deceased, who sought to challenge the validity of the will on the grounds that the testator lacked testamentary capacity at the time of its execution. The dispute centred on the interpretation and application of statutory provisions regarding extensions of time for family maintenance claims and the factors that the court should consider in determining such applications.

The primary legal issue before the court was whether the grandchildren had provided a sufficient explanation for the delay in bringing their claim, and whether the delay caused any prejudice to the estate or the beneficiaries. The court was required to assess whether the grandchildren's claim was arguable and whether it was in the interests of justice to grant the extension of time. The court had to balance the need to protect the integrity of the estate against the potential merits of the grandchildren's claim.

The court held that the grandchildren had provided a reasonable explanation for the delay in bringing their claim, and that there was no evidence of any prejudice to the estate or to the beneficiaries. The court found that the grandchildren's claim was arguable and that it was in the interests of justice to grant the extension of time. The court noted that the grandchildren had acted promptly once they became aware of the potential issues with the will, and that the delay was relatively minor. The court emphasised that the decision to grant an extension of time should be made on a case-by-case basis, taking into account all relevant circumstances.

The final orders of the court granted the grandchildren's application for an extension of time to bring their claim, and directed that the matter proceed to a hearing on the merits of the challenge to the will. The court emphasised that the granting of an extension of time did not prejudge the outcome of the claim and that the estate and other beneficiaries would have the opportunity to present their case in response to the grandchildren's allegations.

Orders