Izydorski v Rimmer - [2010] WASC 175

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: IZYDORSKI -v- RIMMER [2010] WASC 175

CORAM: EM HEENAN J

HEARD: 21 JUNE 2010

DELIVERED : 23 JULY 2010

FILE NO/S: CIV 1444 of 2010

MATTER :Section 7(2)(b) and s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA)
and
The Estate of PATRICIA JEAN GAWRONSKI late of Ella Williams House, 77 - 79 Camboon Road, Noranda in the State of Western Australia

BETWEEN: GEOFFREY BRIAN IZYDORSKI
Plaintiff
AND
DENISE ANNE RIMMER
First-named First Defendant
SONIA IRENE PROKOJES
Second-named First Defendant
DEBORAH JAYNE HOOD
Third-named First Defendant
LISA MARIE IZYDORSKI
Fourth-named First Defendant
DENISE ANNE RIMMER
Second Defendant
SONIA IRENE PROKOJES
Third Defendant
EDWARD JOHN IZYDORSKI
Fourth Defendant
SHANE GREGORY IZYDORSKI
Fifth Defendant
DEBORAH JAYNE HOOD
Sixth Defendant
LISA MARIE IZYDORSKI
Seventh Defendant
HENRYK GAWRONSKI
Eighth Defendant

Catchwords:

Succession - Inheritance (Family and Dependants Provision) Act 1972 (WA) - Application for extension of time to apply - Adult son - Short delay - Administration - Division of opinion within family and administrators as to merits of applicant's claim - Alleged promise by deceased to provide future accommodation for applicant

Legislation:

Administration Act 1903 (WA), s 14
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 7(2) and (3)

Result:

Extension of time granted to make application

Category: B

Representation:

Counsel:

Plaintiff:    Ms L M McFarlane
First-named First Defendant     :        Mr E W Tan
Second-named First Defendant :    Mr E W Tan
Third-named First Defendant   :    Mr E W Tan
Fourth-named First Defendant :    Mr E W Tan
Second Defendant          :    Mr T R Godecke
Third Defendant          :    Mr T R Godecke
Fourth Defendant          :    In person
Fifth Defendant          :    No appearance
Sixth Defendant          :    In person
Seventh Defendant          :    In person
Eighth Defendant          :    No appearance

Solicitors:

Plaintiff:    O'Connor Lawyers
First-named First Defendant     :        Robertson Hayles
Second-named First Defendant :    Robertson Hayles
Third-named First Defendant   :    Robertson Hayles
Fourth-named First Defendant :    Robertson Hayles
Second Defendant          :    Griffiths & Godecke
Third Defendant          :    Griffiths & Godecke
Fourth Defendant          :    In person
Fifth Defendant          :    No appearance
Sixth Defendant          :    In person
Seventh Defendant          :    In person
Eighth Defendant          :    No appearance

Case(s) referred to in judgment(s):

Amos v Amos [1966] VR 442
Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Bickford v Robert Neil Bickford (as Executor of the Estate of Saxon Bickford) [2006] WASC 268
Clayton v Aust (1993) 9 WAR 364
Coates v National Trustees Executor & Agency Company Ltd [1956] ALR 739; (1956) 95 CLR 494
Easterbrook v Young (1977) 136 CLR 308; (1977) 13 ALR 351
Fisherv Fisher (Unreported, WASC, Library No 970494, 1 October 1997)
Girando v Girando (1997) 18 WAR 450
In Re Barry (dec); Circosta v Executor Trustee & Agency Company of South Australia Ltd (1974) 9 SASR 439
MacGregor v MacGregor [2003] WASC 169
Mansfield v Mansfield [2003] WASC 214
Re Claverie & The Testator's Family Maintenance Act [1970] 2 NSWR 380; (1970) 91 WN (NSW) 858
Re Ruttie (dec); Ruttie v Saul [1970] 1 WLR 89
Re Salmon (dec); Coard v National Westminster Bank Ltd [1981] Ch 167
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19
Young v Kestel (as Executor of the Will and Estate of Douglas Tate Young (dec)) [2003] WASCA 190

EM HEENAN J: By originating summons filed 30 March 2010 the plaintiff seeks leave pursuant to s 7(2) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act) to file an application under s 6(1) for provision to be made for him out of the estate of his deceased mother, Mrs Patricia Jean Gawronski, notwithstanding that the time for doing so under that Act has expired. He seeks an extension of time to allow him to make that application for provision out of the estate.
Mrs Patricia Jean Gawronski died on 22 June 2009 intestate. She was born on 19 May 1933 and was, therefore, aged 76 years at the time of her passing. Letters of administration of her estate were granted by this court on 1 September 2009 to her four daughters, who are joined in these proceedings as the four‑named first defendants. Mrs Gawronski had been ill and incapacitated for several years before her death and had been living in a nursing home. This incapacity followed a severe stroke which she suffered in late 2003. Because of this disability two of her daughters, Mrs Denise Anne Rimmer and Mrs Sonia Irene Prokojes, the first and second‑named first defendants, and personally the second and third defendants, had been appointed joint plenary administrators of her estate under the provisions of the Guardianship & Administration Act 1990 (WA) by an order of the State Administrative Tribunal (SAT) of 30 September 2003. They had been administering her affairs from then on and the administration order had been reviewed by the SAT on several occasions before the death of the deceased.
Under the provisions of s 7(2) of the Act the plaintiff had six months from the date of the grant of letters of administration within which to make application for provision for himself under that Act. This meant that any such application needed to be made on or before 1 March 2010. This application for an extension of time has, therefore, been brought 30 days late. This is not a very great delay and, as the evidence examined later reveals, the plaintiff and other members of the family had been engaged in extensive negotiations and arrangements concerning proposals for the administration of the estate which were thought likely to offer prospects of satisfying certain claims being advanced by the plaintiff. By late November or early December 2009 it seemed that a solution was at hand, but events intervened in February and early March 2010 to disrupt and finally eliminate those proposals. It was shortly after that occurred that the plaintiff commenced these proceedings. Whether this is a sufficient explanation of the delay and whether there are sufficient grounds for the grant of an extension of time are matters which require more detailed consideration of the evidence and the application of established legal principles.

Application for extension of time ‑ principles

As said in Young v Kestel (as Executor of the Will and Estate of Douglas Tate Young (dec)) [2003] WASCA 190 [78], it is to the statute that one must turn to determine the criteria applicable on an application for an extension of time to make an application under the Act. Subsections 7(2) and (3) of the Act provide as follows:
(2)No application under subsection (1) of this section shall be heard by the court unless ‑
(a)the application is made within six months from the date on which the Administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b)the court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
(3)A motion for leave to file out of time may be made at any time notwithstanding that the period specified in paragraph (a) of subsection (2) of this section has expired.
This six‑month time limit is not merely a procedural limit but is a substantive provision laid down by the Act itself. The burden is on any applicant for an extension of time to make out a substantial case that it is just and proper for the court to exercise its statutory discretion to extend time: Re Salmon (dec); Coard v National Westminster Bank Ltd [1981] Ch 167, 175; and Clayton v Aust (1993) 9 WAR 364, 366. The discretion is said to be unfettered. There are no restrictions or requirements of any kind laid down by the Act for the onus lies on the applicant to establish sufficient grounds for taking the case out of the general rule and depriving those who are protected by it of its benefits: Re Ruttie (dec); Ruttie v Saul [1970] 1 WLR 89, 93.
While it is necessary for the court to be satisfied that the applicant has an arguable case, it is not part of the function of the court on an application for the extension of time, once an arguable case has been revealed, to evaluate the strength or weakness of that case. The whole of the circumstances of the delay must be looked at including the promptitude with which the claimant gave warning to the defendants of the proposed application. However, there is no limit to the length of the extension which a court may grant in appropriate circumstances and, in what are no doubt exceptional cases, an extension of 14 years was granted in Easterbrook v Young (1977) 136 CLR 308; (1977) 13 ALR 351 an extension of 16 years in Re Claverie & The Testator's Family Maintenance Act [1970] 2 NSWR 380; (1970) 91 WN (NSW) 858; and an extension of 18 years was granted in In Re Barry (dec); Circosta v Executor Trustee & Agency Company of South Australia Ltd (1974) 9 SASR 439.
Again, citing from Young v Kestel [80]:
Extensions of time have been granted where the applicant was unaware of the right to apply; Coates v National Trustees Executors & Agency Co Ltd & Anor (1956) 95 CLR 494 at 505; where the applicant was aware of her rights but could not afford to pursue them; Coffey v Bennett [1961] VR 264; where the applicant was unaware of the true size of the deceased's estate; Re Nassim (dec) [1984] VR 51 at 56 and 57; where the applicant was unaware or under a misapprehension of the extent of her own interests under the deceased's will; Re Marland (dec) [1957] VR 338 at 340; where bona fide negotiations to settle the claim for provision had extended beyond the time limit; Amos v Amos [1966] VR 442 or where negotiations were commenced after the time limit and where the defendant had not then taken the point the time had expired; Re Salmon [1981] Ch 167 at 175.
These principles have been repeatedly applied and followed: Girando v Girando (1997) 18 WAR 450; Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14; Fisher v Fisher (Unreported, WASC, Library No 970494, 1 October 1997) 4 ‑ 6 (Master Sanderson); and Bickford v Robert Neil Bickford (as Executor of the Estate of Saxon Bickford) [2006] WASC 268 [45] (Master Newnes).

Family background

The deceased, Mrs Patricia Jean Gawronski, married twice. She married her first husband, Mr Romuald Mieczyslaw Izydorski, on 16 August 1952. They separated after 24 years of marriage and were subsequently divorced in December 1978. She married for the second time to Mr Henryk Gawronski, the eighth defendant, on 6 July 1979. Eight children were born to Mrs Gawronski, four daughters and four sons. The third son and sixth child, Romuald James Izydorski, died in or about 1969 when he was only 10 years of age. The surviving seven children comprise the plaintiff, and the second to seventh defendants (inclusive). The children were born as follows:
•Denise Anne Rimmer, 1953;
•Sonia Irene Prokojes, 1954;
•Edward John Izydorski, 1955;
•Shane Gregory Izydorski, 1957;
•Deborah Jane Hood, 1958;
•Romuald James Izydorski (dec), 1959;
•Geoffrey Brian Izydorski, 1961;
•Lisa Marie Izydorski, 1965.
All the children were raised as members of the family although, many years after his birth, the deceased informed the fifth defendant, Mr Shane Izydorski, that his natural father is the eighth defendant Mr Henryk Gawronski. Nevertheless, Shane was always, and is still, treated as a member of this close family.
Mr Romuald Mieczyslaw Izydorski, the deceased's first husband, died in November 1994 and, so it would appear, until his death, remained on good terms with all the children. Until his death he had been living at a house at 24 Maidos Street, Ashfield (the Ashfield property) which he and the deceased owned as joint tenants. That had been the Izydorski family home since shortly after the plaintiff's birth. Upon Mr Romuald Mieczyslaw Izydorski's death the deceased became the sole proprietor of that property by survivorship and it remained part of her estate at the date of her death. It is this property which is the subject of contention at present.
There is a mortgage still registered upon the title of that property by the deceased to the Town & Country Bank Ltd which had been registered in 1995. However, the evidence is that the whole of the monies secured by that mortgage have, since the death of the deceased, been paid by the eighth defendant.
A statement of the assets and liabilities of the deceased has been filed in these present proceedings which reveals the deceased's assets and liabilities. However, all the parties have proceeded on the basis that the only substantial assets of the deceased are the house and land known as the Ashfield property and an account with the National Australia Bank (NAB) to the value of $9,220 or thereabouts. There have been various estimates obtained of the current value of the Ashfield property and these range from about $435,000 to about $465,000. The balance due under the mortgage at the date of death was about $5,000.
At the time of her death the deceased and the eighth defendant were registered as the proprietors of another house and land known as 5 Madeira Avenue, Beechboro as joint tenants. On her death the eighth defendant became entitled to become the sole proprietor of that property by survivorship. The deceased herself, had been in the nursing home for a period of over six years before her death.
Because of the intestacy and the provisions of s 14 of the Administration Act the persons entitled in distribution to the estate are the eighth defendant, as widower, and each of the seven surviving children. The eighth defendant is entitled to $50,000 plus one‑third of the net balance of the estate and the remaining two‑thirds of the net balance is distributable equally among each of the seven children including the plaintiff, of which, on an approximate calculation and assuming that the Ashfield property is worth $425,000 and that there are no other liabilities, would mean that each of the children would be entitled to a share of approximately $36,5000 without making any deductions for the inevitable costs of these proceedings and for the administration of the estate.
At the time of the separation between the deceased and her first husband, both parents and four of the children had been living at the Ashfield property. It was the deceased who left the home at the time of separation, taking four of the children with her, Shane, Deborah, Geoffrey and Lisa. She continued to receive financial assistance from Mr Romuald Mieczyslaw Izydorski, and with this and from her own income, purchased a property in Grand Promenade, Bedford. Mr Romuald Mieczyslaw Izydorski remained living at the Ashfield property. Geoffrey stayed with the deceased but left high school at the age of 15, obtained employment with Kmart from 1976 to 1984 when he was transferred to Rockingham and then to Mandurah and lived there in rented accommodation.
The deceased and the eighth defendant later moved to Carnarvon and in 1984 the plaintiff left his employment with Kmart, bought a caravan, and travelled to Carnarvon where he lived near his mother and step‑father. He returned to the Ashfield property in about 1985 and lived in a caravan on the property from then on until the death of Mr Romuald Mieczyslaw Izydorski in November 1994 when he moved back into the house. He has lived in the house ever since. He says that he lived at the Ashfield property from the age of one to 14 and then from the age of 24 to the present, a total of 38 years.
While his father was alive it seems that the plaintiff was not required to pay any rent or make any other financial contribution to the costs of the Ashfield property. After his father's death it seems that the plaintiff began paying water and shire rates and, from October 2008 until the death of the deceased in 2009, a monthly rent of $400 to the mother's estate. This later arrangement for the payment of rent was in substitution for rates and taxes and resulted from a review during the course of the administration of the incapacitated mother's estate by the SAT at which directions were given by the SAT that some rent should be sought from the Ashfield property, even if less than a market rent, to contribute to the medical and care expenses of the deceased then being incurred. According to the second and third defendants, who had been appointed by the SAT as the administrators of their disabled mother's estate during this period, the arrangement with the plaintiff was that he would be responsible for the maintenance, repairs and proper upkeep of the Ashfield property.
The evidence shows that the plaintiff is presently employed as a storeman with a fortnightly income of $1,392 and fortnightly expenses of $1,209.85. His assets are said to be worth $18,142.69 together with some superannuation entitlements in funds presently valued at approximately $22,300. He says that he has always considered the Ashfield property as his home and has no alternative residence. According to him, his mother was always concerned that he did not have home of his own and made it clear to him on several occasions that he could always consider the Ashfield property as his home. Accordingly to him his mother had promised that he would always have 'a roof over his head' and that his rights in respect of the Ashfield property would be secured. He says that this was generally well‑known among the family.
According to the plaintiff, it was the disability which his mother suffered by the stroke in 2003 which prevented her from taking steps to make a will which he expected would have made provision for him to have, if not the entirety, at least an interest in the Ashfield property. During 2005 when the SAT was reviewing the administration of the mother's disabled estate and concerns were expressed that the Ashfield property was producing no income, Mrs Deborah Hood, the sixth defendant, and Mr Henryk Gawronski, the eighth defendant, wrote letters to the SAT explaining that Mrs Gawronski had always said that the property would be Geoffrey's home until he passes away and that it would then pass to the immediate family.
In these present proceedings two of the co‑administrators, Mrs Deborah Hood and Ms Lisa Izydorski supported the plaintiff's application and made oral submissions to the effect that it had been their mother's wish that Geoffrey should receive some provision which would allow him to remain in the Ashfield property, although neither suggested that he was to be or should be the sole beneficiary of that property. The other children of the deceased who have provided evidence on this issue, Mrs Denise Rimmer, Mrs Sonia Prokojes, Mr Edward Izydorski and Mr Shane Izydorski, all say that they are not aware of any such promise ever being made by their late mother, nor of any discussion or consensus within the family that this should occur.
Clearly enough, the plaintiff is of modest means with a modest income and with little in the way of security for his long‑term future. However, there is no suggestion that he is not in good health, nor able to provide sufficiently for himself. According to his brother, Mr Edward Izydorski, the plaintiff resigned from his employment with Kmart in 1984 voluntarily and went on to social security benefits and continued with them unemployed by choice for many years. As emerges from evidence associated with the negotiations between the members of the family after the death of the deceased, there is every appearance that the plaintiff has given little attention to the care and upkeep of the Ashfield property so much so that it is now at risk of demolition because of severe termite infestation.

As already mentioned, meetings between the seven children of the deceased and the eighth defendant, who is on good terms with all of them and who appears to be very highly respected because of the care and attention which he continually gave to their mother, were held at the offices of the solicitors for the administrators.
In July 2009 the solicitors for the administrators wrote to all the children of the deceased and the eighth defendant explaining the consequences of the apparent intestacy of the deceased, asking for any information concerning the possible existence of a will and explaining the entitlement of members of the family in the case of intestate distribution. This communication indicated that the eighth defendant, the deceased's widower, had contemplated renouncing his entitlement in distribution under the estate but, that if he were to do so, this would have adverse consequences for his Centrelink pension entitlements. The solicitors drew attention to the entitlement of any member of the family who believed he or she should have a greater share of the estate to apply under the terms of the Act and the principles upon which any such application would be determined. The communication also proposed that, in order to allow proper administration of the estate, it was essential that an application for a grant of letters of administration should be made and concluded by inviting all members of the family to a meeting at the end of July 2009 to discuss the position. Such a meeting was held on 22 July 2009 attended by six members of the family including the plaintiff. It resulted in agreement that the deceased's four daughters would jointly apply for letters of administration as they subsequently did and arrangements were commenced to obtain estimates of the value of the Ashfield property.
Further discussions between members of the family, under the supervision of the solicitors, continued after the grant of letters of administration and led to a provisional agreement for a deed of family arrangement between all the beneficiaries of the estate. Agreement was reached on terms which were embodied in a deed attached to the affidavit of the solicitor, Mr Eric Eng Wei Tan, sworn 21 April 2010. Although this deed is not dated it appears to have been made and agreed in late November or early December 2009.
The essential structure of the deed was to authorise the plaintiff and the seventh defendant, Ms Lisa Izydorski, to enter into a contract to purchase the Ashfield property from the estate for $420,000 and, that from the net proceeds of the sale the liabilities of the estate should be paid, that an amount of $5,000 should be set aside for a headstone, that $50,000 would be paid to the eighth defendant plus one‑third of the balance, and that the remaining two‑thirds of the residue would be divided between the seven children equally. This differed little from the provisions of due entitlement on an intestacy apart from the fact that it set the price for the sale of the Ashfield property and authorised the property to be sold to two of the beneficiaries and for them, if they wished, to set‑off their entitlements in distribution against the purchase price. The deed was accompanied by an executed contract of sale by which the plaintiff and the seventh defendant agreed to purchase the Ashfield property for $420,000 on the terms therein provided. Both the deed and the contract of sale appear to be unconditional.
However, steps subsequently taken to implement the terms of the deed were met by a number of practical difficulties which resulted in the agreement between the members of the family dissolving. In accordance with recently introduced laws requiring the installation of smoke detectors in all properties sold together with a residual current device an electrician was engaged to install a smoke detector and RCD in the Ashfield property. After inspection, however, the electrician advised that the work could not be performed because of extensive termite infestation in the roof and ceilings which had rendered the property dangerous.
A detailed report on the condition of the house was then obtained by the administrators which, while not stating that the house was uninhabitable, did state that there was a risk of a ceiling collapse and that no tradesperson should enter the ceiling for fear of a collapse. Because of this the administrators warned the plaintiff that he should vacate the house immediately. There have been quotations obtained from a building inspector to carry out the remedial work at the Ashfield property. This is estimated to be in the vicinity of $20,000 together with other expenses relating to plumbing and electrical work. There are not the available funds in the estate to outlay this expenditure and, in the light of this discovery, the seventh defendant is no longer willing to proceed with the purchase and has withdrawn her offer of financial assistance to the plaintiff to allow the sale to proceed.
As a result, on or about 16 March 2010, the plaintiff was informed that the deed of family arrangement had been cancelled because the seventh defendant was no longer willing to proceed with the purchase. Following upon this decision the administrators gave notice to the plaintiff that he should vacate the property and that the land is to be sold. On 18 March 2010 he obtained legal advice from his present solicitors, caused his solicitors to make further enquiries about the proposed deed of family arrangement and, on 25 March 2010, instructed the solicitors to commence these proceedings.
From all this, it is apparent that up until after 1 March 2010, all the members of the family had been proceeding on the basis that the deed of family arrangement would be put into effect and that this would allow the property to be sold on satisfactory terms to the plaintiff and the seventh defendant who, between them, would reach agreement as to the nature and duration of the interests which each would have in the property. It was not until after the six month time limit prescribed by s 7(2) of the Act had expired that the severe structural difficulties due to termites in the house were discovered and the arrangements to proceed with the deed of family arrangement collapsed. After that the plaintiff moved quickly to commence these proceedings. Accordingly, this is a satisfactory explanation of the delay which had occurred and closely resembles the situation in which an extension of time was granted in Amos v Amos [1966] VR 442.
However, for an extension of time to be granted as sought, it is still necessary for the plaintiff to establish that he has an arguable claim for provision out of the estate if he is given leave to bring a claim out of time. This is not a case where the plaintiff receives no share out of the estate of his late mother or a smaller share than his brothers or sisters. His share is an equal share with all his brothers and sisters and with the largest share going to his step‑father as provided by the laws of intestate distribution. The question is whether or not this disposition of the estate as prescribed by law fails to make adequate provision for his proper support having regard to all the material circumstances. The plaintiff's case is, essentially, that he is a person in special need because, unlike his brothers and sisters, he has no home of his own. He further contends that he has a special moral claim or a special need as to the value judgment associated with the concept of proper provision and the use of the phrase 'moral need'. See Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19 [18], [21] and [25] (Gleeson CJ) but with some criticisms of the term moral duties indicating a preponderance for a need to be found in Coates v National Trustees Executor & Agency Company Ltd [1956] ALR 739; (1956) 95 CLR 494, 523 (Fullagar J) and Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 209 (Mason CJ, Deane & McHugh JJ): See further Vigolo v Bostin [73] (Gummow & Hayne JJ) [121] (Callinan & Heydon JJ). On the basis of that authority it is still orthodox to refer to a moral claim by an applicant as a guide to the approach of whether or not proper provision has been made for his adequate support.
The underlying submission is that because of his modest financial circumstances his mother realised that the plaintiff was in need of provision and support for his long‑term accommodation and herself was willing to allow him to live rent free at her property as his father had done before his death, and encouraged him to believe that he would have secure rights of occupancy at the Ashfield property indefinitely. As against this there is a view that the plaintiff has failed to take the opportunities which life has presented him to attain and maintain continuous employment and to provide adequately for his own future.
There are also the needs of the widower and the children of the deceased to be considered for each of them also has reason to believe that the deceased would have contended that he or she be provided for. In this case I am satisfied that there is scope for differences of view as to whether or not the plaintiff is a person who has a need for additional provision or not and, even if he is, whether or not, having regard to the limited extent of this estate and the claims of other beneficiaries it is proper that he should have additional provision.
At this point, however, the plaintiff need not show anything more than an arguable case for additional provision from the estate of the deceased: Mansfield v Mansfield [2003] WASC 214 [57] (Barker J). In support of the existence of an arguable case counsel for the plaintiff submits that his entitlement arises because at the date of his mother's death he was dependent upon her for accommodation which he was unable to provide for himself: MacGregor v MacGregor [2003] WASC 169 [180] (Templeman J). One must, however, always consider these tests and authorities in the light of the particular circumstances and, particularly, with regard to the practicalities of how an order for further provision might be framed.
In the present case the submissions on behalf of the plaintiff proceeded on the basis that he should have the whole of the Ashfield property or at least the right to live there for life. However, to make such an order would consume almost all of the estate available for distribution at the expense of all the other beneficiaries, or postpone any entitlement of the other beneficiaries until after the plaintiff's death which, having regard to his present age, may be a long way off and after the lifetime of some of the other beneficiaries. Both such possibilities seem to me to be more than 'proper' provision. If something less is to be ordered by the court then the only source of satisfying the provision and the interests of the other beneficiaries will be from the proceeds of a sale of the Ashfield property which, unless the plaintiff can raise the funds to purchase the property, will inevitably result in him losing the advantage of occupation, which he maintains, is the concern that his late mother was hoping to protect. It may, however, mean that is sufficient capital for him to make a deposit on or secure some other accommodation or to provide him with a foothold which may lead to that result.
It is clear, however, that at this point I should not be directly concerned with these possibilities or difficulties if I reach the conclusion that the plaintiff does have an arguable claim. What is an arguable claim, is to an extent closely related to what may be a possible solution and the difficulties which I see in this regard are very real and the extent to which the court may make an order which is proper seems to me to be limited. However, that does not mean that no order for further provision is possible. Whether there should be any such order and if so of what nature and extent are matters which require much further and more detailed consideration.
I conclude, therefore, that the plaintiff has shown the existence of an arguable case and has provided an acceptable explanation for the delay which has occurred. Accordingly, I consider that there should be an order extending the time within which the plaintiff may make an application for provision under the Act as sought and that the extension should be for a period of 28 days from the date of this judgment. I will entertain submissions as to the precise terms of any order or orders to that effect which should be made.