Johnsen v Virginia Francis McCorry as Administratrix of the estate of Calvin McCorry (Dec)
[2001] WASC 32
JOHNSEN -v- VIRGINIA FRANCIS McCORRY as Administratrix of the estate of CALVIN McCORRY (DEC) & ORS [2001] WASC 32
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 32 | |
| Case No: | CIV:2259/1999 | 5 FEBRUARY 2001 | |
| Coram: | MASTER BREDMEYER | 8/02/01 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | NOLA PATRICIA JOHNSEN VIRGINIA FRANCIS McCORRY as Administratrix of the estate of CALVIN McCORRY (DEC) VIRGINIA FRANCIS McCORRY CALVIN MARK McCORRY MEGAN McCORRY KAREN McCORRY MARGARET SMITH BERYL McCORRY |
Catchwords: | Application to bring Inheritance Act application out of time |
Legislation: | Inheritance (Family & Dependants Provision) Act 1972 (WA), s 7(2) |
Case References: | Clayton v Aust (1993) 9 WAR 364 Re Barrott, deceased [1953] VLR 308 Re Walker, deceased [1967] VR 890 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
VIRGINIA FRANCIS McCORRY as Administratrix of the estate of CALVIN McCORRY (DEC)
First Defendant
VIRGINIA FRANCIS McCORRY
Second Defendant
CALVIN MARK McCORRY
Third Defendant
MEGAN McCORRY
Fourth Defendant
KAREN McCORRY
Fifth Defendant
MARGARET SMITH
Sixth Defendant
BERYL McCORRY
Seventh Defendant
(Page 2)
Catchwords:
Application to bring Inheritance Act application out of time
Legislation:
Inheritance (Family & Dependants Provision) Act 1972 (WA), s 7(2)
Result:
Application allowed
Representation:
Counsel:
Plaintiff : No appearance
First Defendant : Mr S J Gethin
Second Defendant : Mr S J Gethin
Third Defendant : Mr S J Gethin
Fourth Defendant : Mr S J Gethin
Fifth Defendant : Mr S J Gethin
Sixth Defendant : No appearance
Seventh Defendant : Dr J J Hockley
Solicitors:
Plaintiff : No appearance
First Defendant : Patrick Gethin & Co
Second Defendant : Patrick Gethin & Co
Third Defendant : Patrick Gethin & Co
Fourth Defendant : Patrick Gethin & Co
Fifth Defendant : Patrick Gethin & Co
Sixth Defendant : No appearance
Seventh Defendant : Solomon Avery
(Page 3)
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Case(s) also cited:
Re Barrott, deceased [1953] VLR 308
Re Walker, deceased [1967] VR 890
(Page 4)
1 MASTER BREDMEYER: This is an application by the seventh defendant to bring an application under the Inheritance (Family & Dependants Provision) Act 1972 WA ("Inheritance Act") out of time and to be joined as second plaintiff in the action. The first application is made under s 7(2) of the Inheritance Act which provides that no application under s 7(1) can be heard unless the application is made within six months from the date on which the administrator becomes entitled to administer the estate of the deceased or the court is satisfied the justice of the case requires that the applicant be given leave to file out of time. In this case the seventh defendant, Mrs Beryl McCorry, (Mrs McCorry) is the mother of the deceased Calvin McCorry ("the deceased" or "Calvin") who died on 31 March 1999. He died intestate. Letters of administration of his estate were granted to his widow, the second defendant, on 24 May 1999. The sixth month period within which claims are meant to be brought, expired on 24 November 1999. This present application was brought on 21 December 2000. It is thus about 13 months late.
2 The principles which should guide the court in determining this application are set out by the Full Court in Clayton v Aust (1993) 9 WAR 364.
3 Thirteen months is a lengthy delay but, on the other hand, the estate has not been distributed. The plaintiff in this action is the de facto widow of the deceased and she brought this claim within the time limit on 12 November 1999. It is her claim, and its gradual progress through the court, which has delayed the distribution of the estate to the widow and three children of the deceased until the present time, so this present application, if allowed, will not cause much further delay in the distribution of the estate.
4 What is the reason for the delay? No real reason is given in Mrs McCorry's affidavit in support of 21 December 2000 but from the facts set out in that affidavit and from things said by counsel, it is possible to discern some reason. As stated, the plaintiff's action under the Inheritance Act was brought on 12 November 1999. By an order of Registrar Johnston on 16 March 2000 Mrs McCorry was joined as the seventh defendant. She, among others, was ordered to file any affidavit in opposition to the plaintiff's application outlining any claim which she might have against the estate by 16 April. That was done. Mrs McCorry, represented by solicitors Solomon Avery, filed an affidavit sworn on 10 April 2000 in which she related how she made an interest free loan of $10,000 to Calvin in May 1990 to assist him to pay counsel's fees in connection with his workers' compensation claim. In August 1990 he
(Page 5)
- received workers' compensation moneys and offered to repay the loan on a number of occasions. Mrs McCorry told him that when he became settled he could repay her the money. So, within the six month period, Mrs McCorry made a claim against the estate for the sum of $10,000. Discussions took place between the parties, and the solicitor for the first to fifth defendants considered that Mrs McCorry's claim was statute barred. I was told from the bar table that in case her claim for repayment of the loan was statute barred, Mrs McCorry's solicitors advised her to seek leave to bring an inheritance application out of time. I consider this a reasonable explanation for the late application.
5 I consider that Mrs McCorry has made out an arguable case on the merits of her application for a better provision from the estate. Mrs McCorry, on her evidence, has had a warm, close caring relationship with her son, the deceased. In 1987 Calvin suffered burns from caustic soda at work and he came to live with his mother for 12 months on a full-time basis and longer on a part-time basis. She nursed and cared for him and provided him with food and shelter. In 1989 the deceased separated from his wife Virginia, the first defendant, and entered into a property settlement and child maintenance agreement with her and paid her $35,000 under that agreement. In May 1990 Mrs McCorry withdrew $10,000 from her Commonwealth Bank account and loaned that money to Calvin, as stated above, to pay counsel fees for his workers' compensation claim. He offered to repay the sum on a number of occasions but she always said "Pay me when you are more settled". On 7 July 1997 Calvin suffered a cranial aneurysm and was a patient in hospital from then until his death on 31 March 1999, a period of 19 months. Mrs McCorry said she visited him every day in hospital, going great distances either by foot or by bus as she did not drive a car. She said she took responsibility for his bills while in hospital over that 19 month period. She said that she and her daughter Margaret managed his finances. Mrs McCorry says that she is a pensioner and considers that, had Calvin made a will, he would have wanted to have repaid her. She says she has a stronger claim on his bounty than his wife who has been separated from him for some 14 years and 9 months at the date of death. Under the Intestacy rules his wife is entitled to the first $50,000 of the estate and one third of the rest which, in her case, approximates a further $67,333.
6 The first to fifth defendants have contested some of this evidence. Through their solicitor they say that Mrs McCorry has not made a full statement of her assets and liabilities. She gets a pension because she is 80 years old. She also owns her own home at 58 Petra Street, Palmyra. It is not mortgaged. She has not revealed what other assets she has, for
(Page 6)
- example, shares or money in the bank. A single person on an old aged pension, owning her own home, is allowed by Centrelink to have up to $133,250 in cash or some other form of asset without reducing his or her pension. It is also disputed that she spent much money on the deceased while he was in hospital. Some evidence has been led that the Public Trustee has been looking after his financial affairs since at least October 1997.
7 Despite these criticisms, I consider Mrs McCorry has offered enough evidence to make out an arguable case to get some provision from his estate. I need not call for further evidence on these matters for the purposes of this leave application.
8 For these reasons I consider it just to allow this application to be brought out of time. I will make the following orders:
1. Leave be granted to the seventh defendant to bring an action under the Inheritance (Family & Dependants Provision) Act 1972 out of time.
2. The seventh defendant be joined as the second plaintiff in this action.
3. The minute of originating summons filed by the second plaintiff stand as her originating summons.
4. Costs reserved.
I have reserved on the question of costs because I have not heard counsel on this but my initial view is that the applicant is seeking an indulgence of the court and should pay for the costs of the application in any event.
0
1
0