Keil v Cook & Anor - [2008] VSC 53

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 1157 of 2006

In the matter of an Application pursuant to Part IV of the
Administration and Probate Act

MADELEINE IRENE KEIL	Plaintiff
and
ANTHONY NORTON PYM COOK and ANTHONY JOSEPH NAUGHTON (who are sued as Executors of the Will and Estate of Valda Keil)	Defendants

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2008
DATE OF JUDGMENT:	27 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSC 53

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PROBATE – Application for extension of time to bring application under Part IV of the Administration and Probate Act 1958 – Delay of approximately three months – Ignorance of rights – Arguable case – No prejudice to other beneficiaries – Application granted – Administration and Probate Act 1958, ss 91(4) and 99.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms L Englefield	Riordan Legal
For the Defendants	Mr R B Phillips	Morley Naughton Pearn & Cook

HER HONOUR:

The application

The deceased, Valda Keil, died on 5 November 2005, aged 72. The plaintiff is a niece of the deceased. The plaintiff seeks an order under s 99 of the Administration and Probate Act 1958 that the time for the making of an application by her under Part IV of the Act in respect of the deceased’s estate be extended.

The last will was made on 27 January 2000. The will appointed the defendants as executors, made some bequests totalling $76,000 and left the residue equally to five charities.

Probate of the will was granted on 30 December 2005. Therefore, under s 99 of the Act, the time for bringing a Part IV application expired on 29 June 2006.

The originating motion in this proceeding was filed on 2 October 2006. It seeks an extension of time under s 99, as well as substantive relief under Part IV of the Act.

The present application is brought by summons issued on 23 October 2006. In support of the summons the plaintiff has sworn two affidavits, dated 6 October 2006 and 15 May 2007, respectively. She also relies upon the affidavit of her father, Graham Keil, and her father’s solicitor, Peter Tovey of Engel & Partners in Bairnsdale, both sworn 16 May 2007. The matter was listed for hearing in the Civil Cases List, rather than the Practice Court, because the defendants wished to cross-examine the plaintiff and her father. The only material relied upon by the defendants is an affidavit of the first defendant sworn 22 March 2007.

The plaintiff’s father, the deceased’s brother, brought his own Part IV claim against the estate within time. That claim settled in late October 2006, for approximately $34,000 in total.

The deceased’s estate consisted primarily of two properties, being a house at Bentleigh, which the deceased had inherited from her parents, and an investment property in Carlton. The inventory filed with the application for probate valued the total estate at just over $812,000.

Section 99 of…

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 Keil v Cook & Anor

Details

AGLC: Keil v Cook & Anor [2008] VSC 53
Case: [2008] VSC 53
Decision Date: 27 February 2008

CaseChat Overview and Summary

Keil applied for an extension of time to bring an application under Part IV of the Administration and Probate Act 1958. The dispute involved the estate of a deceased person, with Keil seeking to challenge the actions of the executors, Cook and another. The court was tasked with determining whether the delay in bringing the application was justifiable and whether there was an arguable case for the relief sought. The court also needed to consider whether the delay would prejudice any other beneficiaries of the estate.

The legal issues centred on the interpretation of sections 91(4) and 99 of the Administration and Probate Act 1958. Specifically, the court had to assess whether the delay in bringing the application was reasonable, whether Keil had a valid reason for the delay, and whether there was an arguable case for the relief sought. Furthermore, the court needed to determine if granting the extension would cause any prejudice to other beneficiaries of the estate. Keil argued that the delay was due to ignorance of their rights and that there was no prejudice to other beneficiaries.

The court found that the delay of approximately three months was reasonable, given the circumstances of the case. Keil demonstrated a valid reason for the delay, namely, their ignorance of their rights. The court also determined that there was an arguable case for the relief sought, as Keil had raised valid concerns about the executors' actions. Additionally, the court found that granting the extension would not prejudice any other beneficiaries of the estate. Consequently, the application for an extension of time was granted.

The court ordered that the time limit for bringing the application under Part IV of the Administration and Probate Act 1958 be extended to allow Keil to proceed with their challenge against the executors, Cook and the other party. This decision ensures that Keil's rights are protected and that they have the opportunity to seek the necessary relief in relation to the estate of the deceased person.

Orders