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Maher v Maher

Maher v Maher

Case [2019] VSCA 161 3 July 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0113

DAVID JOHN MAHER	First Applicant
and
ANTHONY CHARLES MAHER	Second Applicant
v
DAMIEN MAHER (AND OTHERS ACCORDING TO THE SCHEDULE)	Respondents

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JUDGES:	BEACH, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2019
DATE OF JUDGMENT:	3 July 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 161
JUDGMENT APPEALED FROM:	[2018] VSC 318 (Daly AsJ)

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ADMINISTRATION AND PROBATE – Family provision – Application under Administration and Probate Act 1958 s 99 for extension of time to bring proceeding for provision out of deceased father’s estate – Applicants two of eleven children – Eldest four children partners in farming business on land owned by deceased and adjacent land owned by partners – Family home and farming infrastructure on father’s land – Father died in 1975 – Will left principal land to widow for life then to seven youngest children – Livestock and plant left to eldest children and widow – Applicants farmed land for no remuneration – Whether applicants had ‘special claims’ as able-bodied sons of deceased – Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134.

ADMINISTRATION AND PROBATE – Family provision – Extension of time application heard over four days with extensive evidence – Whether associate judge erred in conducting more than preliminary assessment of strength of applicants’ claims – Whether consideration may extend beyond whether claims are arguable – Applicants alleged promise by mother after father’s death to leave them other land in her will if applicants did not contest father’s will – Mother died in 2014 – Other land left to youngest seven children – Whether delay over 40 years satisfactorily explained – Whether respondents prejudiced by effluxion of time and loss of evidence – Ansett v Moss [2007] VSCA 161, Groser v Equity Trustees Ltd (2007) 16 VR 101, Harrison [2011] VSC 459, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr R E Cook	Sofra Solicitors
For the First to Seventh Respondents	Mr R C Wells	McNab McNab & Starke Lawyers
For the Eighth Respondent	Ms L Buckley (Solicitor)	KCL Law

BEACH JA

McLEISH JA
NIALL JA:

Thomas Patrick Maher was a farmer who lived with his wife and 11 children on a farm established in the 1890s near Violet Town in central Victoria. Mr Maher died on 3 June 1975. At that time, his children ranged in ages from 12 to 31 years. The farming work was being undertaken principally by the four eldest adult children, being Thomas, Gerard, David and Anthony.[1] These four sons constituted a partnership called the Maher Bros Partnership (‘Maher Bros’).
[1]It is convenient to refer to the parties by their first names, in order to avoid confusion.

The present application concerns the will of Mr Maher dated 19 August 1968. Thomas, David and Anthony each considered that the will did not make proper…

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 Maher v Maher

Details

AGLC: Maher v Maher [2019] VSCA 161
Case: [2019] VSCA 161
Decision Date: 3 July 2019

CaseChat Overview and Summary

In the case of Maher v Maher, the applicants sought an extension of time to apply for family provision from the estate of their deceased father. The father, who passed away in 1975, left his principal land to the applicants' mother for life, followed by the seven youngest children. The applicants, two of the eleven children, had been farming the land for no remuneration and claimed they had ‘special claims’ as able-bodied sons of the deceased. The matter was heard over four days with extensive evidence, and the applicants alleged a promise by their mother to leave them other land in her will if they did not contest their father’s will. However, the mother passed away in 2014, and the other land was left to the youngest seven children.

The legal issues before the court were whether the associate judge erred in conducting more than a preliminary assessment of the applicants’ claims and whether the consideration could extend beyond whether the claims were arguable. Additionally, the court needed to determine if the delay of over 40 years was satisfactorily explained and if the respondents were prejudiced by the effluxion of time and loss of evidence. Relevant cases such as Hughes v National Trustees, Executors & Agency Co of Australasia Ltd, Ansett v Moss, Groser v Equity Trustees Ltd, Harrison, and Brisbane South Regional Health Authority v Taylor were considered in the decision.

The court found that the associate judge did not err in conducting a more than preliminary assessment of the applicants’ claims, as it was necessary to determine whether the applicants had ‘special claims’ as able-bodied sons of the deceased. The court held that the consideration could extend beyond whether the claims were arguable, as it was necessary to assess the strength of the applicants’ claims. The court also found that the delay of over 40 years was not satisfactorily explained, and the respondents were prejudiced by the effluxion of time and loss of evidence. Therefore, the application for an extension of time was dismissed.

Orders