Lazenby v McDermott - [2000] TASSC 121

[2000] TASSC 121

CITATION: Lazenby & Anor v McDermott & Anor [2000] TASSC 121

PARTIES: LAZENBY, Lola Ivy

LAZENBY, Narie Jean
v
McDERMOTT, Ronald Arthur
McDERMOTT, George Albert

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M12/2000
DELIVERED ON:  31 August 2000
DELIVERED AT:  Hobart
HEARING DATE:  6 July and 17 August 2000
JUDGMENT OF:  Underwood J

CATCHWORDS:

Succession - Family provision and maintenance - Practice - Time for making application - Extension of time - Delay of almost 36 years - Decision made not to make an application.
Testator's Family Maintenance Act 1912 (Tas), s11(2).

In re Guskett deceased [1947] VLR 212; Re Walker, deceased [1967] VR 890; Re Lauer, deceased [1984] VR 180; Re Burgess [1984] 2 Qd R 379; Re Barrot, deceased [1953] VLR 308, followed.

Aust Dig Succession [332]

REPRESENTATION:

Counsel:
             Applicants:  P F Tierney
             Respondents:  A C R Spence
Solicitors:
             Applicants:  Finlay Watchorn
             Respondents:  Page Seager

Judgment Number: [2000] TASSC 121
Number of paragraphs: 29

Serial No 121/2000
File No M12/2000

LOLA IVY LAZENBY and NARIE JEAN LAZENBY v
RONALD ARTHUR McDERMOTT and GEORGE ALBERT McDERMOTT

REASONS FOR JUDGMENT UNDERWOOD J

31 August 2000

The applicants are the surviving daughters of the late Albert Leslie McDermott ("the testator"). The respondents are sons of the testator and the executors and trustees of his estate. The applicants seek an order pursuant to the Testator's Family Maintenance Act 1912 ("the Act"), s11(2) that the time limited by s11(1) for the making of an application for provision out of the testator's estate be extended. The time within which the applicants might have commenced proceedings as of right expired almost 36 years ago.

The testator married Ivy May McDermott more than 70 years ago. Of that union there were six children, the applicants, the respondents, another son who was made a party to these proceedings and another daughter who died about 18 years ago. The eldest of the five surviving children is 77 this year and the youngest is 60.

At about the time of the birth of the youngest child, the testator bought a small farm of 47 acres or thereabouts, at Cambridge ("the family farm") and he and his family lived on it until his death on 6 August 1963. According to the affidavit evidence, the farm generated only a meagre income. The testator supplemented his income by working as a blacksmith and by doing other odd jobs from time to time. For a short period, the testator ran a sawmill on the family farm.

All the parties to the application tendered affidavit evidence and were cross-examined. From this material it is clear that the applicants and the respondents were brought up in a secure, loving and caring environment by the testator and his wife. There seems to be no suggestion that during their lives the testator or his wife preferred any one or more of the children over the others.

In 1950 and again in 1954, a small block was excised from the family…

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 Lazenby v McDermott

Details

AGLC: Lazenby v McDermott [2000] TASSC 121
Case: [2000] TASSC 121
Decision Date: 31 August 2000

CaseChat Overview and Summary

The applicants, Lola Ivy Lazenby and Narie Jean Lazenby, are the daughters of the late Albert Leslie McDermott, and the respondents are his sons, Ronald Arthur McDermott and George Albert McDermott, who are also the executors and trustees of his estate. The applicants seek an order under the Testator's Family Maintenance Act 1912 to extend the time limit for making an application for provision from the estate, which expired almost 36 years ago. The testator died in 1963, leaving a will that provided for his wife for life, and then divided the estate equally among his three sons, subject to each daughter receiving £200. The applicants argue that the provisions of the will are unfair, but the court must first determine whether the time limit for making an application should be extended.

The court must consider whether there is a satisfactory explanation for the long delay in making the application, whether there has been prejudice to the respondents, any unconscionable conduct by the applicants, and the strength of the applicants' case. The applicants claim that they relied on assurances from their mother that their brothers would ensure they received a fair share of the estate. However, the court found that the applicants were aware of their rights under the Act and chose not to challenge the will. The court held that the delay was too long and there was no satisfactory explanation for it, and dismissed the application.

Orders