Maher v Maher

[2018] VSC 318

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2016 03176
 S CI 2017 03578

IN THE MATTER OF Part IV of the Administration and Probate Act 1958 (Vic)

- and –

IN THE MATTER OF the Will and Estate of Thomas Patrick Maher, deceased

BETWEEN:

DAVID JOHN MAHER and ANTHONY CHARLES MAHER	Plaintiffs
- and -
THOMAS CELESTINE MAHER & ORS (according to the schedule)	Defendants
ANDBETWEEN:
THOMAS CELESTINE MAHER	Plaintiff
- and -
NATHAN KUPERHOLZ (as Administrator of the Will annexed of Thomas Patrick Maher, deceased)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22, 23 and 27 February 2018
DATE OF JUDGMENT:	21 August 2018
CASE MAY BE CITED AS:	Maher and ors v Maher and ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 318

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TESTATORS FAMILY MAINTENANCE – Application under s 99 of the Administration and Probate Act 1958 (Vic) by two sons out of deceased’s eleven children and, separately, by a third son, for an extension of time to bring a proceeding seeking orders for provision out of deceased’s estate – Estate constituted farming land – Plaintiffs worked on the farm since around the age of 16 – Application opposed by six out of the plaintiffs’ eight siblings, being the remainder beneficiaries – Extension of time in excess of 40 years sought – Deceased passed away in 1975 – Will left mother a life interest with the remainder interest passing to the remainder beneficiaries - Plaintiffs elected not to contest deceased’s will in reliance on their mother’s unfulfilled promise that she would leave them her land – Plaintiff’s mother passed away in June 2014 – Proceedings instituted in August 2016 and September 2017 respectively – Finding that any claim by the plaintiffs for further provision would have slim prospects of success – Plaintiffs were able bodied adult sons at time of deceased’s passing – Consideration of reasons for the delay – Whether the plaintiffs had adequate appreciation of their rights to a claim under the Act when electing not to challenge the deceased’s will – Relevance of length of delay – Finding that plaintiffs did not fail to challenge will by reason of ignorance of rights – Whether there was an adequate explanation for the delay between the plaintiffs becoming aware of their rights and making an application for an extension of time – Finding that one plaintiff’s delay of over two years after becoming aware of legal rights not satisfactorily explained – No finding against the remaining two plaintiffs – Whether any prejudice would be caused to the remainder beneficiaries – Finding that delay in issuing proceedings has caused the remainder beneficiaries prejudice – Ansett v Moss [2007] VSCA 161, referred to – McCann v Ward & Anor [2010] VSC 452, applied – Harrison v Harrison [2011] VSC 459, applied – Hughes v National Trustees (1979) 143 CLR 134, applied – Coates v National Trustees Executors…