Gilchrist v Equity Trustees Limited - [2011] VSC 107

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2252 of 2010

PART IV OF THE ADMINISTRATION AND PROBATE ACT 1958

IN THE WILL AND ESTATE OF GEORGE ELIOT GILCHRIST (deceased)

JOHN ELIOT GILCHRIST	Plaintiff
v
EQUITY TRUSTEES LIMITED (which is sued as executor of the Will of the above named deceased)	Defendant

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2010
DATE OF JUDGMENT:	28 March 2011
CASE MAY BE CITED AS:	Gilchrist v Equity Trustees Limited
MEDIUM NEUTRAL CITATION:	[2011] VSC 107

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ADMINISTRATION AND PROBATE ― TESTATOR’S FAMILY MAINTENANCE – Application for an extension of time within which to make a claim – Whether the estate has been distributed - Application dismissed – Administration and Probate Act 1958, s.99

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Wells	Maddens Solicitors
For the Defendant	Mr R Boaden	Hunt and Hunt

HER HONOUR:

Introduction

The plaintiff, John Eliot Gilchrist, makes an application under s 99 of the Administration and Probate Act 1958 (Vic) (“the Act”) for an extension of time within which to make a claim under s 91 of the Act for further provisions out of the deceased estate of George Eliot Gilchrist, his father.

The hearing was confined to the plaintiff’s application for an extension of time under s 99 of the Act.

Background Facts

Mr George Eliot Gilchrist died on 10 August 1975. He was survived by two children, Muriel Nellie Gilchrist, born in 1933 and the plaintiff, born on 11 April 1934, now aged 76. Muriel Gilchrist was mentally disabled although still able to live an independent life with assistance. Muriel Gilchrist died on 22 March 2008 without leaving any children.

When the deceased made his will in 1964 he owned a property at 5 Winton Road, East Melbourne. He had disposed of that property and then bought vacant land in Oberwyl Road, Burwood upon which he constructed three residential units. Initially, he lived in one of the units. Although he was divorced at the time, he provided accommodation in the second unit in Oberwyl Road for his ex-wife (the plaintiff’s mother) and his daughter Muriel (the plaintiff’s sister).

The deceased died before the third unit at Oberwyl Road was completed. The plaintiff took up residence in the unit previously occupied by his father at Oberwyl Road to be on hand to complete the construction of the units and have them ready for sale.

Probate of the deceased’s last will dated 14 April 1964 was granted to Equity Trustees Ltd, his executor, on 12 March 1976.

The plaintiff has seven children: Guy Eliot Gilchrist born 8 March 1960, Hugh Eliot Gilchrist born 5 April 1963, Elisabeth Eliot Gilchrist born 22 November 1964, Jacqueline Emma Gilchrist born 20 July 1977, John Eliot Gilchrist born 7 November 1989, Gabriel Eliot Gilchrist born 5 February 1992 and Yasmin Eliot Gilchrist born 3 June 1994. The three youngest are the children from his current marriage.

The plaintiff and…

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 Gilchrist v Equity Trustees Limited

Details

AGLC: Gilchrist v Equity Trustees Limited [2011] VSC 107
Case: [2011] VSC 107
Decision Date: 28 March 2011

CaseChat Overview and Summary

The plaintiff, Gilchrist, sought to claim maintenance from the estate of their deceased relative, administered by Equity Trustees Limited. The dispute centred on whether Gilchrist was entitled to an extension of time to make the claim under section 99 of the Administration and Probate Act 1958. The court was required to determine if the estate had been distributed prior to the application, which would impact the validity of Gilchrist's claim. The central issue was whether the estate had already been distributed, and if so, how this affected the statutory time limit for making claims against the estate.

The court examined the timeline of events surrounding the estate's distribution. It found that the estate had indeed been distributed prior to the plaintiff’s application for an extension of time. The court noted that section 99 of the Act allows for extensions only under specific circumstances, and the distribution of the estate was a critical factor in determining the eligibility for such an extension. Given that the estate had already been distributed, the court concluded that the statutory time limit for making claims had lapsed, thereby rendering Gilchrist's application for an extension futile.

Consequently, the court dismissed the plaintiff's application for an extension of time. The reasoning was that the distribution of the estate triggered the closure of the window for making claims against it, and no statutory provision allowed for an extension under the circumstances presented. The court was bound by the statutory framework and found that the application did not meet the criteria for an extension as provided in the Act.

The final orders were to dismiss the plaintiff's application for an extension of time under section 99 of the Administration and Probate Act 1958.

Orders

Orders of the court

Dismiss the plaintiff’s application for an extension of time under s 99 of the Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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