Lewin v Desma Ann Kimpton as executor of the estate of Charles Howard Lewin
[2014] WASCA 131
•18 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEWIN -v- DESMA ANN KIMPTON as executor of the estate of CHARLES HOWARD LEWIN [2014] WASCA 131
CORAM: NEWNES JA
MURPHY JA
EDELMAN J
HEARD: 12 JUNE 2014
DELIVERED : 18 JULY 2014
FILE NO/S: CACV 69 of 2013
BETWEEN: LINDA LEWIN
Appellant
AND
DESMA ANN KIMPTON as executor of the estate of CHARLES HOWARD LEWIN
First RespondentDESMA ANN KIMPTON
Second RespondentTRACEY LOUISE HARLEY
Third RespondentAIMEE NICOLE MAYES (nee LEWIN)
Fourth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
Citation :LEWIN -v- KIMPTON [2013] WASC 204
File No :CIV 1186 of 2013
Catchwords:
Appeal against master's decision to grant an extension of time under the Family Provision Act - Discretionary decision - Whether proper grounds of appeal - Whether the grounds justify appellate intervention - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 14, s 15(3)
Family Provision Act 1972 (WA), s 6, s 7(1), s 7(2)(b), s 7(3)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Dr P MacMillan
First Respondent : Dr J Hockley
Second Respondent : Dr J Hockley
Third Respondent : No appearance
Fourth Respondent : No appearance
Solicitors:
Appellant: Peel Legal, Barristers and Solicitors
First Respondent : North Lake Legal, Barristers and Solicitors
Second Respondent : North Lake Legal, Barristers and Solicitors
Third Respondent : No appearance
Fourth Respondent : No appearance
Case(s) referred to in judgment(s):
Albany v Albany [2010] NTSC 25
Daebritz v Gandy [2001] WASC 45
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lewin v Kimpton [2013] WASC 204
Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 96
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
REASONS OF THE COURT:
Introduction
This appeal concerns a decision of Master Sanderson: Lewin v Kimpton [2013] WASC 204. The learned master's reasons dealt with two separate matters, each relating to the estate of the late Charles Lewin (the deceased). The first matter (CIV 1095 of 2013) involved proceedings commenced by Mrs Lewin (the deceased's wife from whom he had been separated, and the appellant in this appeal). She sought a declaration and orders that certain funds in the deceased's bank account devolved to her, and to her children, on a partial intestacy by virtue of s 14 of the Administration Act 1903 (WA) (the Administration Act action).
The second matter (CIV 1186 of 2013) involved an application by Ms Kimpton (the second respondent to this appeal). Ms Kimpton sought orders under the Family Provision Act 1972 (WA), including an extension of time under s 7(2)(b) of that Act (the Family Provision application). Ms Kimpton claimed to be the de facto of the deceased for approximately 9 1/2 years prior to, and at the time of, his death.
In the Administration Act action, the learned master upheld Mrs Lewin's claim and there is no appeal from that part of his decision.
The master also granted leave to Ms Kimpton, in relation to the Family Provision application, to make an application under the Family Provision Act out of time. Mrs Lewin challenges the master's decision in that regard in this appeal. There was no debate as to whether the master's decision was interlocutory, and whether leave to appeal was required.
The appeal was contested by Ms Kimpton. The third and fourth respondents did not take part in the appeal and therefore made no appearance at the hearing.
Background
All references to paragraph numbers below are references to the paragraph numbers in the learned master's reasons, unless otherwise indicated.
The will and related events
The deceased executed what was described as a 'homemade will' on 29 April 2011.
By its terms, certain assets were left to Mrs Lewin and to his two daughters from that marriage (the third and fourth respondents). A vacant block of land at Pinjarra Meadows was left to Ms Kimpton. The block was mortgaged to Westpac Banking Corporation (Westpac). The will also contained, in effect, a provision gifting money in the deceased's bank account to Ms Kimpton. Ms Kimpton was appointed as the executor of the will.
The deceased died on 3 May 2011. Probate was granted on 22 December 2011.
A sum of $92,766.63 was transferred by the deceased's employer into the deceased's bank account. The master found that this sum was 'credited' to his account on 4 May 2011, ie the day after he died [9], [19]. A further sum of $2,500 (approximately) from an employee share plan was also paid into the deceased's bank account. These two sums total approximately $95,000.
Westpac, to Ms Kimpton's knowledge, subsequently applied $72,000 (approximately) from the money in the bank account to discharge the mortgage over the Pinjarra Meadows block.
For probate purposes, the Pinjarra Meadows block was valued at $179,000 (GB 68), thus the equity in it was $107,000.
The Administration Act action - by Mrs Lewin
Mrs Lewin commenced proceedings on 22 January 2013 for:
(a)a declaration to the effect that the gift with respect to the bank account did not include the monies deposited into that account by the employer and that, accordingly, the (approximate) sum of $95,000 fell into intestacy; and
(b)an order under the intestacy provisions of s 14 of the Administration Act 1903 (WA), that the funds be distributed to Mrs Lewin and to the daughters.
In that application, Mrs Lewin relied upon her affidavit sworn 13 December 2012 and Ms Kimpton relied on her affidavit sworn 19 March 2013. The master noted that neither party was cross‑examined and no objection was taken to any of the evidence [5].
It appears that at the hearing before the master, counsel for Ms Kimpton was contending that if there were an intestacy, Ms Kimpton as the deceased's de facto partner, and not Mrs Lewin, would be entitled to the benefit of the intestacy provisions of the Administration Act (GB 6; see also GB 41). Nevertheless, there was no evidence of Ms Kimpton's de facto status in the Administration Act proceedings. Ms Kimpton's evidence as to her alleged de facto status was given in the Family Provision application, but there was no order that the evidence in one matter be read as evidence in the other (GB 12 ‑ 16).
The master found that on the proper construction of the will, and in the events which had happened, the gift with respect to the deceased's bank account did not apply to the sums totalling $95,000 (approximately), and that the deceased died partially intestate in that regard. The master said:
In my view there has been a partial intestacy in this matter and [Mrs Lewin] is entitled to an order accordingly [26].
The orders made by the master in that matter were as follows:
1.The deceased, Charles Howard [Lewin] … died intestate as to the funds paid into Westpac Rocket Deposit Account … after 4 May 2011 (the Funds).
2.[Ms Kimpton as executor] distribute the Funds together with interest on those Funds from 1 July 2011 to date of judgment … to [Mrs Lewin and the daughters] pursuant to s 14 of the Administration Act 1903 (WA).
3.On such determination or compromise the Funds be distributed pursuant to such compromise, Family Provision Order and/or S 14 [sic] of the Administration Act 1903.
4.Any distribution pursuant to s 14 of the Administration Act 1903 is to be to [Mrs Lewin and the daughters].
5.[Ms Kimpton] pay [Mrs Lewin's] costs of the action to be taxed if not agreed.
It is evident that order 3 does not, on its face, make sense as there is no 'determination or compromise' referred to in the orders.
There is no challenge to the master's decision in relation to the Administration Act action or to the orders made in it.
Finally, before dealing with the Family Provision application, it may be observed in passing that it would appear unusual that the evidence concerning Ms Kimpton's de facto position was not led in the Administration Act action. Had it been, and had the evidence been accepted, it would appear, at least on a preliminary view of it, that Ms Kimpton would have been entitled to approximately $65,000 of the $95,000 sum pursuant to s 15(3) of the Administration Act. However, the significance, if any, of the absence of such evidence in the Administration Act action was not raised for consideration in this appeal.
The Family Provision application - by Ms Kimpton
By originating summons dated 6 February 2013, Ms Kimpton sought the procedural order that she be granted leave pursuant to s 7(2)(b) of the Family Provision Act 1972 (WA) to file an application under the Family Provision Act out of time. Ms Kimpton relied upon her affidavit sworn 6 February 2013. Mrs Lewin relied on a number of affidavits, including her affidavit sworn 25 March 2013.
The substantive orders sought by Ms Kimpton were, relevantly, to the following effect:
(a)an order under s 6 of the Family Provision Act for the proper maintenance, support, education and advancement in life for Ms Kimpton as the court thinks fit;
(b)an order specifying an amount and nature of such provision; and
(c)an order specifying that the further provision for the maintenance etcetera be taken from that part of the deceased's estate that is subject to a partial intestacy, and be paid or credited to Ms Kimpton to take effect as a modification of the applicable rules of distribution.
Consistently with the terms of the proposed order referred to in (c) above, counsel for Ms Kimpton at the hearing before the master indicated that the claim under the Family Provision Act would only be pressed in the event that the court ordered that the funds in the bank account fell into intestacy. He said, in effect, that the claim under the Family Provision Act would be limited to a claim in respect of such funds (GB 6, 12 ‑ 13). Paragraph 35 of Ms Kimpton's affidavit of 6 February 2013 was to the same effect (GB 41).
It appeared to be common ground that, subject to the application for an extension under s 7(2)(b) of the Family Provision Act, an application under s 6 of that Act should have been brought by 22 June 2012. Accordingly, Ms Kimpton's application was approximately 7 1/2 months out of time.
In relation to delay, Ms Kimpton's evidence was as follows:
In respect of [$95,000] Linda Lewin by her solicitors … on 16 April 2012, gave notification of her intention to my (then) solicitor … to claim the funds as her rightful entitlement as Charles' wife. Vigorous negotiations commenced within the sixth month time limit as set out in the Act. However, a tentative agreement by way of Deed of Family Arrangement was reached but upon getting another opinion from another solicitor I had doubts about signing the agreement. The other solicitor did not agree with the terms of the Deed of Family Arrangement so I did not sign it.
…
I am advised that Linda Lewin in action CIV No 1095/2013 is taking action to challenge Charles' Homemade Will and claiming the funds [$95,000] and basing her claim to the funds as beneficiary and as Charles' wife that her rights to the fund are superior …
I am claiming to be Charles' defacto [sic] partner from 2002, or for 9.51 years, a defacto [sic] partner of long standing and his defacto [sic] immediately before death. I am claiming that part of Charles' estate that is a partial intestacy pursuant to s 15(3) of the Administration Act 1903 (WA).
A substantial part of the delay in my making this claim is explainable by attempts to settle the matter out of court through correspondence and mediation with Linda Lewin, her two daughters and their solicitor … on 20 July 2012 (pars 28, 31, 32 ‑ 33).
Ms Kimpton annexed a draft, unexecuted deed, the effect of the terms of which were, relevantly, that Mrs Lewin would receive $72,000 out of the disputed fund.
In relation to par 33 of her affidavit, Ms Kimpton annexed a letter from her then solicitor dated 20 July 2012, which referred to an 'informal conference' on 20 July 2012 and stated:
After discussions, it was agreed that [Mrs Lewin and the daughters] would receive the sum of $72,000 from the [account] and you [Ms Kimpton] would receive the balance of $36,000.00 together with [other sums totalling approximately $1,300]. The block of land is to be retained by you [Ms Kimpton].
The master's decision - the Family Provision application
The master stated that the only question for determination on that matter was whether an extension of time ought to be granted to make an application under the Family Provision Act. The master said:
The principles which govern such applications were not in dispute and can conveniently be summarised by reference to the decision in Clayton v Aust (1993) 9 WAR 364. The six matters outlined are first, the discretion is unfettered. Second, the onus lies on the plaintiff to establish sufficient grounds for taking a case out of the general rule and depriving those who are protected by the time limit of its benefits. Third, it is relevant to consider how promptly and in what circumstances the applicant brought the application for the extension of time. Fourth, it is material as to whether or not negotiations have been commenced within the time limit. Fifth, it is relevant to consider whether the estate has been distributed before the claim under the Act was made or notified. Sixth, it is relevant to consider whether or not if an extension is refused the claimant will be left without recourse against anyone. In addition, in the context of this case, reference was made to the decision of the Full Court in Young v Kestel [2003] WASCA 190 to make the point no detailed consideration of the merits of the applicant's case, were leave to be granted, is required. Reference was also made to the decision of Grigoriou v Nitsos [1999] WASCA 42, as to the significance of the steps taken by the claimant to actually pursue her own case [27].
The master noted that Ms Kimpton's application was supported by her affidavit of 6 February 2013.
The master then stated, in relation to his decision to grant leave, that two matters were 'significantly in the plaintiff's favour and sufficient to carry the day'. The first was that the evidence suggested Ms Kimpton would be able to establish she was the de facto spouse of the deceased. Secondly, the fact that Ms Kimpton was not in a position to pay the mortgage on the Pinjarra Meadows block suggested that she was in a precarious financial position. In those circumstances, the master said:
It is arguable if the deceased left her encumbered property which he knew she had no way of servicing, he should also have provided in his will funds to allow her to discharge the mortgage. Of course I am expressing no concluded view on this question. But, it seems to me to be arguable and it is a strong factor in favour of a grant of leave [32].
The master also said '[w]hatever other factors may weigh against a grant of leave they are not sufficient to counterbalance this point' [32].
The master ordered, relevantly, on 30 May 2013:
1.The time for the lodging by [Ms Kimpton] for a claim under the Family Provision Act 1972 (WA) be extended to 45 days from the date of this order.
Sections 6 and 7 of the Family Provision Act
Section 6(1) of the Family Provision Act provides:
If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased’s estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose. (original emphasis)
Section 7 of the Act provides, relevantly:
(1)An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons -
(a)a person who was married to, or living as the de facto partner of, the deceased person immediately before the death of the deceased person;
…
(2)No application under subsection (1) shall be heard by the Court unless -
(a)the application is made within 6 months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b)the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
(3)A motion for leave to file out of time may be made at any time notwithstanding that the period specified in subsection (2)(a) has expired.
Grounds of appeal
Mrs Lewin challenges the master's decision to grant Ms Kimpton an extension of time to bring an application under the Family Provision Act.
Mrs Lewin's grounds of appeal are, in effect, as follows:
1.the master erred in law, or alternatively in law and fact, in that:
(a)he did not give 'sufficient weight' to the facts that:
(i) Ms Kimpton had compromised any claim she had under the Family Provision Act on 20 July 2012;
(ii) having compromised her claim, she then 'changed her mind'; and
(iii) there was no explanation for the delay in the period 20 July 2012 to 6 February 2013;
(b)the master failed to give 'adequate weight' to Ms Kimpton's alleged failure to adduce 'adequate evidence' to show that she had an arguable claim that the deceased had not made adequate provision from his estate for her proper maintenance or support, for the purposes of the jurisdictional question in s 6(1) of the Family Provision Act;
(c)the master erred in giving 'significant weight' to the consideration that Ms Kimpton was in a precarious financial position when there was no evidence to support that finding and it was irrelevant that the deceased did not leave her with sufficient funds to discharge the mortgage over the Pinjarra Meadows block; and
(d)in light of the circumstances referred to in the first three grounds of appeal, the master ought to have exercised his discretion to dismiss the application.
Appellate intervention
Having regard to the way that Mrs Lewin has formulated her grounds of appeal, it is necessary to restate the relevant principles of appellate intervention. In Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79, McLure JA (as her Honour then was) summarised the relevant principles as follows [36]:
In order to succeed in an appeal from a discretionary decision an appellant must establish that the primary judge has expressly or impliedly made a material error of fact or law: House v The King (1936) 55 CLR 499 at 505. Failure to give adequate weight, or giving too much weight, to a relevant consideration does not give rise to a relevant error unless the failure really amounts to a failure to exercise the discretion actually entrusted in the Court: Lovell v Lovell (1950) 81 CLR 513 at 519.
In House v The King [1936] HCA 40; (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred (504 ‑ 505).
In Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, Latham CJ said:
In Storie v Storie it was considered by this Court that in effect no weight had been given to the claim of a parent as against a stranger to the custody of a child. The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v Wakefield) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by their Lordships in the House of Lords in this connection are not always easy to apply, but they ought not to be read as denying the long established principle (which, indeed, is expressly recognised in the cases in the House of Lords) that on an appeal from an order founded upon the exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal (519). (footnotes omitted)
Wherever a discretion is to be exercised, minds may differ on the result: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 539 ‑ 540.
Merits of the grounds
Mrs Lewin does not contend that the master's statement of the relevant principles in relation to the exercise of his discretion was incorrect (see [28] above).
The grounds, as formulated, appear to allege, in effect, that the master attributed too little or too much weight to particular considerations. To that extent, the grounds are not proper grounds of appeal and do not identify recognisable error which would justify appellate intervention. Nevertheless, the details of the matters raised by Mrs Lewin are addressed below.
Ground 1(a)
The first two aspects of ground 1(a) involve the contention that the master failed to give sufficient weight to the fact that Ms Kimpton had compromised her Family Provision Act claim. The ground as formulated assumes that the master found as a fact that Ms Kimpton had concluded an agreement by which she agreed to compromise her Family Provision application and that the master, having found that fact, failed to give it sufficient weight. The difficulty with this contention is that the master did not find as a fact that a concluded agreement had been reached, and the grounds do not contend that the master ought to have found that as a fact.
When this difficulty was pointed out to counsel for the appellant at the hearing, counsel foreshadowed an amendment to the grounds of appeal to allege that the master should have found that Ms Kimpton had entered into a concluded agreement, which included a term to the effect that she had released any claim under the Family Provision Act. That foreshadowed amendment was not, however, pursued as counsel accepted that the question of whether there was a concluded agreement was not a matter which the master had been required to decide, and the point could not in the circumstances be raised in this appeal. See, in this regard, Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [48] ‑ [52]. It is unnecessary to consider the question of whether, had there been a concluded compromise agreement, Ms Kimpton would have been precluded thereby from bringing proceedings under the Family Provision Act, cf Daebritz v Gandy [2001] WASC 45; Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 96; Albany v Albany [2010] NTSC 25.
The remaining part of ground 1(a) concerns the question of delay. In relation to this, Ms Kimpton's explanation was, in effect, that she had negotiated a settlement in principle; that she was subsequently advised by other solicitors not to proceed with the settlement; that she did not proceed with the settlement in those circumstances; that any application she made under the Family Provision Act would only relate to the extent to which the funds in the bank account fell into intestacy; and that shortly after Mrs Lewin had commenced the Administration Act action to obtain a declaration that there was an intestacy in that regard, she had commenced proceedings under the Family Provision Act. It was open to the master to conclude that Ms Kimpton's explanation of the delay was sufficient in all the circumstances.
There is no merit in ground 1(a).
Grounds 1(b) and 1(c)
Grounds 1(b) and 1(c) relate to the question of whether Ms Kimpton had an arguable claim under the Family Provision Act. The master referred to this in his reasons and to appellate authority in this context to the effect that 'no detailed consideration of the merits of the applicant's case, were leave to be granted, is required' (see [28] above).
Mrs Lewin noted that Ms Kimpton's evidence included evidence to the effect that she was earning a modest income (as a casual aged carer); that the $72,000 (approximately) mortgage to Westpac was discharged by recourse to the funds in the bank account; and that if those funds were declared to fall into intestacy (as was ultimately found) she would be unable to repay them, if required to do so, except by selling the Pinjarra Meadows block. The master inferred from this evidence that Ms Kimpton was in a 'precarious financial position' and could not service the mortgage on the property. Those inferences were open in the context of determining, for the purposes of an interlocutory application to extend time, whether Ms Kimpton had an arguable claim. It was also open to the master to infer that, from the evidence of the de facto relationship, the deceased likely knew of Ms Kimpton's financial position in that regard. It was open to the master to infer that it was arguable that the deceased had not left adequate provision for her in the absence of leaving sufficient funds to discharge the mortgage over the Pinjarra Meadows block. Mrs Lewin's submissions to the contrary should not be accepted.
Mrs Lewin also contended that Ms Kimpton had failed to disclose that she was already married. However, that submission was put to the master below (GB 23 ‑ 24), and in light of the evidence of the de facto relationship, the submission does not point to appellable error. It remained open to the master to conclude that Ms Kimpton had an arguable claim for the purposes of the application to extend time. The suggestion that the master did not give 'adequate weight' to the evidence before him is without merit. Ground 1(b) has no merit.
The submissions in support of ground 1(c) largely cover the same territory as ground 1(b). Accordingly, for the reasons given in relation to ground 1(b), ground 1(c) correspondingly lacks merit. In ground 1(c), Mrs Lewin raises, however, the additional contention that the proposed settlement of 10 July 2012 was premised upon Ms Kimpton obtaining refinancing of the Pinjarra Meadows block to raise $72,000 to pay out Mrs Lewin. That might have been a matter to raise in cross‑examination with Ms Kimpton, but that was not done. It remained open to the master to conclude, on the basis of his consideration of the evidence as a whole, that Ms Kimpton had an arguable claim for the purposes of the interlocutory application to extend time.
Ground 1(d)
Ground 1(d) depends upon success in relation to grounds 1(a), (b) and (c). As no appellable error has been demonstrated in that regard, ground 1(d) has no merit.
Conclusion
There is no merit in any of the grounds of appeal. There should be orders to the effect that the appeal is dismissed. The contested estate is relatively small and legal fees are presumably already not inconsiderable. Legal fees will no doubt loom even larger in the future. The matter should proceed as expeditiously and efficiently as possible. Ms Kimpton's application under the Family Provision Act should be entered into the CMC list and the court will so direct. The case would appear to be one in which it would be appropriate for there to be an early mediation, but that question can be left to the management of the CMC judge.
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