Jotkowitz v Keating - [2006] VSC 290

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5517 of 2006

IN THE MATTER of Part IV of the Administration and Probate Act 1958

IN THE MATTER of the Will and Estate of Magda Somogyi

ETHEL JOTKOWITZ	Plaintiff
v
JOHN KEATING (who is sued as the executor of the estate of Magda Somogyi deceased)	Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2006
DATE OF JUDGMENT:	9 August 2006
CASE MAY BE CITED AS:	Jotkowitz v Keating
MEDIUM NEUTRAL CITATION:	[2006] VSC 290

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PRACTICE AND PROCEDURE – Testator’s Family Maintenance – Application under s 99 of the Administration and Probate Act 1958 for extension of time for commencement of proceeding for provision – Applicant niece of deceased aunt – Substantial estate – Estate not distributed – Negotiations for settlement on foot – Short period of delay – Reasons for failure to commence proceeding include illness of solicitor and merger of solicitor’s practice – Close relationship between applicant niece and deceased aunt – Residuary beneficiaries four charities – No evidence of prejudice to existing beneficiaries – Extension of time granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Southall QC and Ms L. Bird	Harvey Bruce & Co
For the Defendant	Mr B. Gillies	John Keating & Associates

HER HONOUR:

The claim

The plaintiff, Mrs Jotkowitz, has made an application under s 99 of the Administration and Probate Act 1958 (“the Act”) for an extension of the time for the commencement of proceedings seeking provision out of the estate of her late aunt, Mrs Magda Somogyi, (“the deceased”).

The deceased died on 25 July 2005 and probate of her will dated 13 March 1990 (“the will”) was granted to the defendant (“the executor”) on 19 September 2005. By the will, the deceased left her residuary estate to her late husband, Mr Stephen Somogyi, if he should survive her. Otherwise, the Royal Victorian Blind Institute, the Royal Guide Dogs for the Blind Association of Australia, the Royal Society for the Prevention of Cruelty of Animals (Victoria Foundation) and the Montefiore Home for the Aged were to take her residuary estate in equal shares.

The deceased’s husband predeceased her. Her net estate was valued for probate purposes at approximately $4,967,000.00. It has not been administered.

The Act

The Act relevantly provides:

“91. Power of the Court to make maintenance order
(1)Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
(2)The Court must not make an order under sub-section (1) in favour of a person unless-
(a)that person has applied for the order; or
(b)another person has applied for the order on behalf of that person.

(3)The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion…

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 Jotkowitz v Keating

Details

AGLC: Jotkowitz v Keating [2006] VSC 290
Case: [2006] VSC 290
Decision Date: 9 August 2006

CaseChat Overview and Summary

The case of Jotkowitz v Keating involved an application by the niece of the deceased, who was also the testator’s aunt, seeking an extension of time to commence a proceeding for provision under section 99 of the Administration and Probate Act 1958. The applicant sought relief to provide for herself from the substantial estate of her aunt, which had not yet been distributed. The application was made on foot of ongoing negotiations for a settlement. The delay in initiating the proceeding was attributed to several factors, including the illness of the applicant’s solicitor and the merger of the solicitor's practice with another firm.

The court was tasked with determining whether the reasons provided for the delay were sufficient to warrant an extension of time and whether there was any prejudice to the existing beneficiaries of the estate. The legal issues centred on whether the applicant's relationship with the deceased and the ongoing negotiations for a settlement could justify the delay and whether the absence of prejudice to the residuary beneficiaries, who were four charities, could support the granting of an extension.

In delivering the judgment, the court found that the applicant’s close relationship with the deceased aunt and the ongoing negotiations for a settlement were compelling reasons for the delay. The court also noted that there was no evidence suggesting that the residuary beneficiaries, which were four charities, had been prejudiced by the delay. The court considered the reasons for the delay, including the illness of the solicitor and the merger of practices, to be valid and reasonable. Consequently, the court granted the application for an extension of time, allowing the applicant to commence the proceeding for provision from the estate.

Orders