Lang v Australian Executor Trustees Ltd - [2013] SASC 171

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
LANG & ORS v AUSTRALIAN EXECUTOR TRUSTEES LTD & ORS
[2013] SASC 171
Judgment of The Honourable Justice Anderson
12 November 2013
SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - TREATMENT OF PARTICULAR APPLICANTS - GRANDCHILDREN AND OTHERS
APPLICATION OUT OF TIME - PRINCIPLES
Application by four grandchildren to claim a benefit from their grandfather's estate. The plaintiffs claim they have been left without adequate provision for their proper maintenance, education, or advancement. The summons was issued by the plaintiffs on 10 September 2012, and the time limit for a claim to be made was 28 October 2010. The plaintiffs' application was therefore made out of time.
The plaintiffs submitted reasons for the application being made late. These included lack of knowledge about the will of their grandfather, lack of knowledge about the time limit in which to make a claim and discouragement by and fear of the second defendant, their uncle.
Held: Application refused. Plaintiffs unable to satisfactorily explain the length of delay in making the claim. Onus on plaintiffs not discharged.
Inheritance (Family Provision) Act 1972 (SA), referred to.
In re Gusket [1947] VLR 212; Ansett v Moss [2007] VSC 92, applied.
In the Estate of Barry (1974) 9 SASR 439; Hoffman v Hoffman (1909) 29 NZLR 425, discussed.

LANG & ORS v AUSTRALIAN EXECUTOR TRUSTEES LTD & ORS
[2013] SASC 171
Civil
ANDERSON J.
Introduction

This is an application, out of time, by four grandchildren in respect of the estate of their grandfather to claim a benefit pursuant to the provisions of the Inheritance (Family Provision) Act 1972 (SA) (“the Act”). The applicants are the grandchildren of Hans Fetzer who died on 21 August 2009. Probate was granted on 28 April 2010. Pursuant to s 8(1) of the Act any claim for a benefit in relation to the estate of the late Mr Fetzer had to be made by 28 October 2010. The summons issued by the plaintiffs was filed on 10 September 2012.
The will provided for Mr Fetzer’s children Peter Hans Fetzer, Sonia Heidi Lang (“Heidi Lang”) and Angela Fetzer in a number of different ways including the distribution of the assets of trusts he controlled, specific gifts of property, forgiveness of any loan or debts owing by Sonia Heidi Lang, and an equal share of the balance of the estate for each child. The will gave monetary gifts to two persons specified as “friends”, Janine Ida Moore and Peter Lyall Bacchus, in the sum of $25,000 each. It provided property, or the benefit of his interest in a property, for his partner Erica Deirdre Schultz. In regards to other family trusts in which Mr Fetzer had a beneficial interest he directed a payment of $500,000 be made to Sonia Heidi Lang (taking into account a forgiveness of a loan of $600,000 he made to her), and $100,000 to each of Sonia’s children, the four plaintiffs, upon reaching the age of 25. The…

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 Lang v Australian Executor Trustees Ltd

Details

AGLC: Lang v Australian Executor Trustees Ltd [2013] SASC 171
Case: [2013] SASC 171
Decision Date: 12 November 2013

CaseChat Overview and Summary

The case of Lang v Australian Executor Trustees Ltd involved four grandchildren, Christa, Nikki, Justin, and Chloe, who sought to make a claim against the estate of their deceased grandfather. They sought an extension of time to bring their application under the Family Provision Act, alleging that they had not been provided with adequate information about the will, were discouraged by their mother, and intimidated by their uncle. The grandchildren argued that they were not provided with sufficient financial provision for their maintenance, education, or advancement, particularly in comparison to the substantial sums provided to their cousins. The executors of the estate opposed the application on the grounds of delay and the grandchildren's inability to justify the lateness of their claim.

The primary legal issues before the court were whether the grandchildren could provide sufficient justification for the delay in making their claim and whether they had a potentially good claim under the Family Provision Act. The court had to consider the reasons given by the grandchildren for the delay, including their lack of information about the will, discouragement by family members, and intimidation by their uncle. Additionally, the court needed to assess the strength of the grandchildren's claim, considering the evidence provided and the amount of money already distributed among the beneficiaries.

The court found that the grandchildren were unable to satisfactorily explain the delay in bringing their claim. While the court believed that the grandchildren had genuine concerns about family conflict and their uncle's attitude, these concerns did not justify the delay. The court also found that the grandchildren had not overcome the burden of showing that they had a potentially good claim. The evidence provided by the grandchildren was contested, and the court found it difficult to determine whether they had been left without adequate provision for their proper maintenance, education, or advancement. The court concluded that the grandchildren had already been provided with $100,000 each and that the testator had considered many people, including the grandchildren, when making his will.

The court ultimately refused the application, finding that the grandchildren had not discharged the onus of providing sufficient reason to justify an extension of time. The delay was significant, and the grandchildren had not shown any new facts or circumstances that would warrant an extension. The court also considered the potential prejudice to the defendants in finalising the estate, which would involve a complicated trial and accounting exercise. The court found that the grandchildren had not established a potentially good claim and therefore denied their application.

The court's decision was grounded in the principle that applications for extensions of time under the Family Provision Act must be justified by sufficient reason. The grandchildren failed to provide a satisfactory explanation for their delay and did not establish a potentially good claim. The court's refusal of the application was based on the lack of justification for the delay and the contested nature of the grandchildren's evidence regarding their claim under the Act. The final order of the court was that the application was refused, and the grandchildren were unable to bring their claim outside the statutory time limit.

Orders

Orders of the court

Held: Application refused. Plaintiffs unable to satisfactorily explain the length of delay in making the claim. Onus on plaintiffs not discharged.

Background

Background to the litigation

The first defendant, Australian Executor Trustees Limited, played no part in the hearing and its counsel was excused from attendance.Background Each of the plaintiffs alleges that they had a close personal relationship with the deceased. They claim to have been left without adequate provision for their proper maintenance, education or advancement. Although this aspect of the matter is not to determine the merits of their claim under the Act, it is a relevant consideration as to the grant of an extension of time to consider the likely chances of success by the grandchildren in their claim against the estate. The reasons given by the plaintiffs in their affidavits and maintained by them under cross-examination were, first, that they were not given details of the grant of probate or the will or a document entitled “Letter of Wishes of Hans Fetzer”. Secondly, they claim that they were discouraged by their mother, the fourth defendant, from making any inquiries as to any entitlements they may have. Thirdly, they say they were further discouraged by the belligerent and bullying attitude of the second defendant who intimidated them effectively into not bringing a claim until some two years later. At the time of the death of their grandfather the plaintiffs were aged respectively Christa 28, Nikki 26, Justin 19 and Chloe 16. There is evidence that the fourth plaintiff Chloe suffers from what is described as a triple X syndrome which means effectively that she had some decreased insight into matters generally and it was suggested that she in particular could not have understood the complexities of making any claim under the Act. The suggestion by the plaintiffs that they spent significant amounts of time with their grandfather and especially towards the end of his life is disputed by the defendants, Angela in particular. Her two children will receive or have received $500,000 each upon turning 25 in comparison with the $100,000 provided for the plaintiffs. It is obvious that this is a motivating factor in the claim by the plaintiffs. I will deal briefly with each of the witnesses.The witnesses I thought each of the plaintiffs in giving evidence was genuine in what they told me. I believe they did have some apprehension, because of the first defendant’s belligerent attitude generally, as to what might happen in relation to peace within the family should they bring an application. However, as a counterbalance to this it is my view that the family was so dysfunctional in any event that this consideration probably cannot prevail. It is my impression that although they spent time with their grandfather in earlier years they did not spend so much time in the time leading up to his death probably because he and their mother Heidi Lang had a falling out. I believe their evidence was more slanted to earlier times than recent times. I thought the second defendant Peter Fetzer was a most unsatisfactory witness. I formed the view that he said anything which he thought would help his cause and likewise I was not impressed by the evidence given by his partner, Sonia Grace. I thought she was merely attempting to play what she perceived to be her role in helping his cause and did not give reliable evidence. It was a case of misguided loyalty.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ANDERSON J

The defendants are prejudiced in their finalisation of the estate as any action by the plaintiffs would involve a complicated trial and possibly a particularly complicated accounting exercise in relation to the administration of the trusts of the deceased. There is nothing before me at the moment to assist in relation to that accounting exercise and I have to assume that there is only $250,000 or one-quarter of one-third of that available for distribution on a successful claim.Conclusion For the reasons which I have set out it is my view that this application must fail. The plaintiffs are unable to satisfactorily explain the length of the delay. A lot of time was devoted in their evidence relating to the character and nature of their uncle. I am not convinced at the end of the day that they have overcome the difficulty and onus they bear in this matter to provide sufficient reason to justify an application out of time. Another factor against granting the application is the consideration of the strength of the claim and the situation in which any grandchildren are placed when they make such a claim. On the face of it, they have a difficult onus in establishing any entitlement. The defendants will say the evidence of the grandchildren has been exaggerated and is inaccurate. There is strong contested evidence which, at best for the plaintiffs, is evenly balanced. Because they have the difficulties of any grandchild not provided for, and because their evidence is disputed, it is impossible to say that they have a potentially good claim. In addition, it seems to me on the limited evidence available, that the plaintiffs may have difficulty in establishing that they have been left without adequate provision for their proper maintenance, education and advancement. Finally, they have been provided for to the extent of $100,000 each. The testator gave careful consideration, from an examination of his will and his “letter of wishes” to many people including the plaintiffs. I therefore refuse the application.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

Although she gave evidence when called by the plaintiff and was cross-examined, the fourth defendant was a reluctant party in giving evidence. She was represented by Mr Jappe who really took no part in the proceedings other than indicating that they were prepared to abide the decision of the Court.Consideration The plaintiffs were aware generally of the provisions of the will within a few weeks of their grandfather’s death. There were discussions within the family about their dissatisfaction on hearing that their cousins had received four times the amount provided for them. They were told by their mother, the fourth defendant, who took a pragmatic view, that they should effectively be grateful for what they got. The real reason that they did not take any action, it seems, was because they did not realise that there was a time limit running. It appears that they appreciated that they may have had rights to take action but they did not seek any advice and took no action until out of time by about two years. It was put on their behalf that they were discouraged because of the overbearing and belligerent attitude of their uncle, the second defendant. However, despite his unsatisfactory evidence and my impression that he gave evidence to suit himself there is no evidence that he made any relevant threats direct or indirect which could have caused the plaintiffs any concern in relation to the bringing of an action. I assessed him to be a bully and to some extent a bluff merchant. His threats were not to be taken seriously as it was his manner of asserting himself and I believe that is how the plaintiffs viewed him. As against the plaintiffs there is the fact that, although apparently apprehensive of their uncle and possibly for good reason, nothing really changed in the time between their grandfather’s death and the time in which they made their application. There are no new facts or circumstances. It was not a case like Barry where there was an honest ignorance by the claimants of their rights. I do not accept that the factor which changed and caused them to issue the application was their added maturity because of the effluxion of time. By the date of their grandfather’s death the first three plaintiffs had been adults for some years and were not naïve in the ways of the world. Those same considerations do not apply necessarily to Chloe but she was cared for by her mother. One assumes that her mother looked after her interests. There is no suggestion that her mother specifically discouraged her from taking any action. This is aside from her mother’s general advice to all the plaintiffs that they should be grateful for what they got. I do not consider that Chloe, because she was in the care of her mother, should be looked at differently. The defendants are prejudiced in their finalisation of the estate as any action by the plaintiffs would involve a complicated trial and possibly a particularly complicated accounting exercise in relation to the administration of the trusts of the deceased. There is nothing before me at the moment to assist in relation to that accounting exercise and I have to assume that there is only $250,000 or one-quarter of one-third of that available for distribution on a successful claim.Conclusion