MARJORIE OLIVE GROSER	Plaintiff
v
EQUITY TRUSTEES LIMITED (ACN 004 031 298) (who is sued as the Executor of the Will of Adrian Charles Noel Groser, deceased)	Defendant

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JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 February 2007
DATE OF JUDGMENT:	22 February 2007
CASE MAY BE CITED AS:	Groser v Equity Trustees Ltd
MEDIUM NEUTRAL CITATION:	[2007] VSC 27

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APPLICATION TO EXTEND TIME to bring proceeding under Part IV of the Administration and Probate Act 1958 – Substantial delay – Whether estate finally distributed within meaning of s.99 of the Act – Principles in High Court case of Easterbrook v Young (1977) 136 CLR 308 applied – Creation of trusts in will - Trusts established – Beneficiaries next of kin – Estate not distributed – Application not statute barred – Arguable case that will failed to provide adequate provision for maintenance and support – Time extended.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.B. Phillips	McNab McNab and Starke
For the Defendant	Mr R. Flower	Hunt and Hunt

TABLE OF CONTENTS

The Will................................................................................................................................................ 3

Assets and Value of Estate............................................................................................................... 6

The Application.................................................................................................................................. 6

Extending Time - Principles............................................................................................................. 7

The Delay........................................................................................................................................... 10

The Plaintiff’s Financial Position and Concern......................................................................... 13

Distribution of the Estate............................................................................................................... 14

Has there been Final Distribution?.............................................................................................. 20

Should Time be Extended?............................................................................................................ 22

Orders................................................................................................................................................. 25

HIS HONOUR:

This is an application by the plaintiff in a proceeding issued by originating motion, seeking an order extending the time in which to bring a proceeding pursuant to Part IV of the Administration and Probate Act 1958 (“the Act”). The motion also seeks substantive relief pursuant to s.91 of the Act.

The plaintiff, Marjorie Groser (“the plaintiff”), was born on 2 October 1923, is presently aged 83 years, and is the widow of Adrian Charles Noel Groser, deceased (“the deceased”), who died on 8 December 2000 aged 80 years.

The defendant, Equity Trustees Ltd (“Equity Trustees”) was the executor of the will of the deceased. It obtained a grant of probate in this Court on 29 March 2001. It is the trustee of a number of trusts created by the will.

The plaintiff and the deceased had two children, daughter Christine, born on 20 March 1963, and son Anthony, born on 24 September 1966. Both are married. The daughter resides with her husband and children in Mt Eliza and the son resides with his wife in Sydney. His wife recently gave birth to a child.

The daughter and the son, now aged 43 and 40 respectively, are not parties to this proceeding. They are beneficiaries under the will, as are their children. Evidence was placed before the Court as to their attitude to this application to extend time and both have…

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 Groser v Equity Trustees Ltd

Details

AGLC: Groser v Equity Trustees Ltd [2007] VSC 27
Case: [2007] VSC 27
Decision Date: 22 February 2007

CaseChat Overview and Summary

The applicant, Groser, sought an extension of time to bring a proceeding against the defendant, Equity Trustees Ltd, under Part IV of the Administration and Probate Act 1958. The dispute arose from a substantial delay in the distribution of an estate, specifically whether it was finally distributed within the meaning of section 99 of the Act. The case was heard in the Supreme Court of Victoria.

The central legal issue was whether the estate had been finally distributed in accordance with the statutory provisions and if the application was statute-barred. The court also had to determine if the creation of trusts in the will had been properly established and if there was an arguable case that the will failed to provide adequate provision for the maintenance and support of the beneficiaries. The principles from the High Court case of Easterbrook v Young (1977) 136 CLR 308 were applied to assist in the decision-making process.

The court found that the estate had not been finally distributed, and therefore, the application was not statute-barred. It held that the trusts created in the will were established, and the beneficiaries were the next of kin. Further, the court ruled that there was an arguable case that the will failed to provide adequate provision for the maintenance and support of the beneficiaries. Based on these findings, the court extended the time for the applicant to bring the proceeding.

The court ordered that the time for the applicant to bring the proceeding be extended, allowing for the continuation of the legal process to ensure the estate is properly distributed and that the beneficiaries receive adequate provision for their maintenance and support.

Orders