Maher v Maher
[2018] VSC 318
•21 August 2018
| 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 and Agency Co Ltd (1956) 95 CLR 494, referred to – Bastistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, referred to – Re Nassim [1984] VR 51, referred to – Applications dismissed.
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S CI 2016 03176
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R Cook | Sofra Solicitors |
| For the First Defendant | Mr J Nunns | Armstrong Ross Lawyers |
| For the Second Defendant | Mr S T Pitt (excused on 21 February 2018) | HDC Legal |
| For the Third to Ninth Defendants | Mr R C Wells with Ms R G Morison | McNab & Starke |
| For the Tenth Defendant | KCL Law |
S CI 2017 3578
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Nunns | Armstrong Ross |
| For the Defendant | KCL Law |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Background.................................................................................................................................. 11
The proceedings.......................................................................................................................... 16
The evidence................................................................................................................................ 19
David’s evidence................................................................................................................ 20
Anthony’s evidence........................................................................................................... 23
Thomas’ evidence.............................................................................................................. 28
Mr Tehan’s evidence......................................................................................................... 32
The financial position of the plaintiffs..................................................................................... 32
Personal circumstances of the plaintiffs in 1975........................................................... 32
Maher Bros’ position in 1975............................................................................................ 33
The current position of Maher Bros and the plaintiffs................................................. 34
Remainder beneficiaries’ evidence........................................................................................... 35
Administrator’s evidence........................................................................................................... 41
Evidence concerning the payment of probate duties, accounting for the RCA compensation fund, and the alleged maladministration of the estate........................................................... 42
Commentary upon the evidence............................................................................................... 44
David’s and Anthony’s submissions........................................................................................ 47
Thomas’ submissions................................................................................................................. 51
Remainder beneficiaries’ submissions..................................................................................... 53
Administrator’s submissions..................................................................................................... 56
Conclusions.................................................................................................................................. 57
HER HONOUR:
Introduction
There are two proceedings before me, each in respect of the administration of the estate of Mr Thomas Patrick Maher (‘the deceased’), a farmer from north eastern Victoria who passed away over forty years ago, in 1975. In the first in time proceeding (‘first proceeding’), two out of the deceased’s eleven children, Mr David Maher (‘David’) and Mr Anthony Maher (‘Anthony’), have applied under s 99 of the Administration and Probate Act 1958 (Vic) (‘Act’) for an extension of time to bring a proceeding seeking orders that provision be made out of the deceased’s estate for their proper maintenance and support pursuant to Part IV of the Act. In the later proceeding (‘second proceeding’), the deceased’s eldest son, Mr Thomas Celestine Maher (‘Thomas’), seeks the same relief.
The application is opposed by six out of their eight siblings (‘remainder beneficiaries’) and the administrator of the deceased’s estate.
The deceased’s estate comprised, among other things, parcels of farming land (‘estate land’) north east of Euroa, including the family home at Fine View, totalling approximately 1,700 acres, which are the nucleus of the Maher family’s broader land holdings. The parcels of land adjacent to the estate land have been purchased over the years by the deceased’s widow, Mrs Maureen Brown (formerly Mrs Maher) prior to the passing of the deceased, a partnership business owned and operated by four of the deceased’s sons (‘Maher Bros’) both prior to and after the passing of the deceased, and by David and Anthony Maher together in their own names, after the passing of the deceased. A colour coded map showing the registered proprietors of each of the properties is Annexure A to these reasons.
The deceased passed away unexpectedly in a farming accident on 3 June 1975. On 2 February 1976, probate of his will dated 19 August 1968 was granted.
Section 99 of the Act governs the time limits within which an application may be made to the Court for a family provision order. Under s 99(1), any such application is to be made within six months after the date of the grant of probate of the will. Therefore, pursuant to the general rule set out in s 99(1), any relevant application was required to have been made by the plaintiffs by 2 August 1976.
Therefore, in each of the proceedings before me, an extension of time in excess of forty years is sought by the plaintiffs. Under s 99(2), the Court may exercise discretion to extend the time limit prescribed in sub-s (1), including after the time for making an application has expired, provided that any application pursuant to s 99(2) is made before the final distribution of the estate. The plaintiffs bear the onus of proving that an extension of time ought to be granted in their favour. It is common ground between the parties that a final distribution of the deceased’s estate has not yet occurred, as a portion of his estate was subject to a life interest in favour of his wife Mrs Brown, who passed away in 2014, and whose estate is yet to be distributed pending the outcome of a separate Part IV proceeding brought by, among others, the plaintiffs in relation to her estate (‘Brown estate’).
The leading authority in Victoria concerning applications for extension of time under s 99 of the Act is the decision of the Court of Appeal in Ansett v Moss.[1] In that case, the applicant was an adult son of the deceased, a solicitor, and the application was made some 25 years out of time. Nonetheless, the Court of Appeal determined that:[2]
[1][2007] VSCA 161.
[2]Ibid, [6].
the discretion conferred by s 99 should not be confined by any rigid rules and accordingly, there is no requirement, in every case, that delay be satisfactorily explained
and:[3]
The strength of an applicant’s claim for relief is a relevant factor to be considered, together with other factors, in an application to extend the time for applying for further provision to be made from the estate of a deceased person. The trial judge in this case, however, used this factor to determine the application. That required a high threshold to be met, namely, that the appellant’s case was hopeless.
[3]Ibid, [11].
The Court of Appeal found that the applicant’s prospects of success were ‘far from negligible’,[4] and, rather than determine the application itself, remitted the application to the Trial Division to enable the applicant to give evidence concerning his ignorance of his rights.
[4]Ibid, [12].
Following on from the decision in Ansett v Moss,[5] the applicable test for granting an extension of time under s 99 was summarised by John Dixon J in McCann v Ward & Anor (citations omitted):[6]
Does the plaintiff have an arguable case? The merits of the plaintiff’s case have relevance to the exercise of the court’s discretion as it is obviously futile to let a claim proceed which is flawed or hopeless.
What is the period of the delay and any explanation for it? The court will ordinarily take into account such matters although the discretion conferred by the section is not confined by any rigid rules and even this consideration may not be a requirement in every case.
Is there any prejudice to the beneficiaries if time is extended? In this context the relevant inquiry is into the prejudice caused by the delay rather than any disappointment which might be anticipated consequent upon readjustment of the interests being transferred under the will in order to make provision for the plaintiff.
[5]Ibid.
[6][2010] VSC 452, [11].
In Harrison v Harrison,[7] Kaye J expanded upon the matters relevant to a Court’s consideration of any application for an extension of time. His Honour observed as follows (citations omitted):[8]
[7][2011] VSC 459.
[8]Ibid, [288]–[292].
The decision of a court, on an application to extend time under s 99 of the Act, is discretionary. The court must be satisfied of circumstances which would induce it, acting judicially, to excuse the applicant from the effect of the six month limitation period prescribed in s 99. In Re Guskett, Herring CJ stated:
It is for the applicant to make out a case that will justify the granting of the indulgence sought. He has to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts, but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As, moreover, he is seeking an indulgence, he should apply promptly for an extension of time.
There are no inflexible rules which apply to the determination of the discretionary judgment of an application to extend time under s 99. Obviously, the length of the delay, and the reasons for it, are relevant factors. Ordinarily, it would be expected that an applicant should be able to proffer some reason or explanation why the application was not made within time, particularly where the delay is reasonably substantial. However, there is no requirement that, in every case, the delay should be satisfactorily explained.
Another relevant circumstance is whether the making of an order for an extension of time would occasion prejudice to other interested parties. In Groser v Equity Trustees Limited, Gillard J stated:
What is important in considering the period of delay is the question of prejudice if the indulgence is granted. But absent prejudice, a period of delay and an inadequate explanation should not stand in the way of a just result.
The strength of the applicant’s case is a factor of some relevance. However, ordinarily, an application for an extension of time is considered as a preliminary step in the proposed proceedings. The court does not embark on a detailed analysis of the applicant’s potential claim. Obviously, if the claim is groundless or hopeless, the grant of an extension of time would be futile. On the other hand, the mere fact that an applicant has an arguable case for relief under s 91 of the Act is not, without more, a sufficient reason to extend time.
Ultimately, an application for an extension must be determined according to the justice of the case, taking into account, and appropriately weighing, all the relevant factors, to some of which I have referred above. In addition to the factors, which I have described above, it is also important to take into account the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person’s estate.
In respect of the question of whether the plaintiffs have an arguable case on the merits, I am satisfied that the relevant test applicable to any claim for a family provision order, should an extension of time be granted, is that which applied as at the date of the deceased’s passing. It was agreed by the parties that at the date of the deceased’s passing, s 91 of the Act may have operated so as to preclude claims for further provision by the plaintiffs. Some relevant authorities are discussed further at paragraphs 12 to 15 below.
Section 91, which governs the criteria to be applied to any claim for a family provision order, was amended by the Wills Act 1997 (Vic).[9] Prior to the amendment and as at the deceased’s death in 1975, the right to bring such a claim was confined to the widow, widower or children of a deceased, with Courts tending to construe the provision so as to exclude self-supporting adult sons, as considered by Gibbs CJ in the High Court decision of Hughes v National Trustees (‘Hughes’).[10]His Honour summarised the then contemporaneous authorities as follows:[11]
It is well settled that these general principles apply to the case of an adult son as well as to other cases. The age of an applicant is however material and if a son is mature, able-bodied and capable of supporting himself he may in those circumstances be in no need of maintenance or support. In In Re Sinnott (1948) VL, Fullagar J said, at p 280:
No special principle is to be applied in the case of an adult son. But the approach of the court must be different. In the case of a widow or an infant child, the court is dealing with one who is prima facie dependent on the testator and prima facie has a claim to be maintained and supported. But an adult son is, I think, prima facie able to ‘maintain and support’ himself, and some special need or some special claim must, generally speaking, be shown to justify intervention by the court under the Act.
[9]The effect of the amendment, which took effect on 20 July 1998, was to change s 91 in two ways, being to extend s 91 in scope to include claims made by any ‘person for whom the deceased had responsibility to make provision’, and to set out the criteria to be applied by the court in determining an application.
[10](1979) 143 CLR 134
[11]Ibid, [14].
However, the principles set out in the paragraph above are subject to certain exceptions, as articulated by his Honour subsequently in the same decision, as follows:[12]
In some cases a special claim may be found to exist because the applicant has contributed to building up the testator’s estate or has helped him in other ways. In other cases a son who has done nothing for his parents may have a special need. This may be because he suffers from some physical or mental infirmity, but it is not necessary for an adult son to show that his earning powers have been impaired by some disability before he can establish a special need for maintenance or support. He may have suffered a financial disaster; he may be unable to obtain employment; he may have a number of dependents who rely on him for support which he cannot adequately provide from his own resources. There are no rigid rules; the question whether adequate provision has been made for the proper maintenance and support of the adult son must depend on all the circumstances - that is, on all the facts that existed at the date of the death of the testator, whether the testator knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a testator who knew the facts.
[12]Ibid.
Another relevant authority concerning applications for further provision under the Act is the decision of the High Court in Coates v National Trustees Executors and Agency Co Ltd (‘Coates’),[13] as follows:
[…] the court determining the application must look at the will which the testator leaves and the dispositions if any which it contains in favour of his widow or children as the case may be and consider whether they amounted to an adequate provision for her or their proper maintenance and support. But the very question what is proper maintenance and support involves the future of the widow or children to be maintained or supported. It is, however, the future stretching forward from the date of the testator’s death and therefore considered as from that date. It involves what is necessary or appropriate prospectively from that time. To determine that question contingent events must be taken into account as well as what may be considered certain or exceedingly likely to happen. When a court is called upon to consider such a question many years after the date as at which the court must take its stand, all the advantage is available of knowing the events that have occurred. The intervening events may be taken into consideration because they suggest or tend to show what antecedently might have been expected. But they must not be outside the range of reasonable foresight. If all contingencies that might reasonably have been anticipated have been taken into account, it would be difficult to say that the actual occurrence of some event which antecedently no one could reasonably have foreseen shows that the maintenance or support was not proper or the provision therefor was not adequate. It is therefore impossible to treat actual intermediate occurrences as more than evidentiary facts. The ultimate question must remain one of adequate provision for proper maintenance and support as at the date of the testator’s death.
[13](1956) 95 CLR 494.
Notwithstanding the prima facie position identified in the authorities as applicable to adult sons, such a rule was not intended to unduly confine the discretion of a court. The authorities of the era often refer to the statement of Lord Romer in Bosch v Perpetual Trustee Company[14] that:
Their Lordships agree that in every case the Court must place itself in the position of the testator and consider what he would have done in all of the circumstances of the case, treating the testator as a wise and just, rather than a fond and foolish, husband or father.
[14][1938] AC 463, 478-479.
Accordingly, the key issues for determination in these applications are as follows:
(a) in respect of the merits of the plaintiffs’ claims, whether the plaintiffs, by virtue of factors including any contributions to the deceased’s estate, financial position and earning powers (or lack thereof) may be found to have a special claim so as to be exempt from the general rule which applied at the date of the deceased’s passing in 1975 in respect of the right of adult sons to make claims for a family provision order;
(b) in respect of delay, the reasons for the delay, including whether each of the plaintiffs had adequate appreciation of his rights to a claim under Part IV of the Act when electing not to challenge the deceased’s will within the time prescribed by the Act, and further, whether there was an adequate explanation for the delay between the plaintiffs (or any of them) becoming aware of their rights and making an application for an extension of time;
(c) in respect of prejudice, whether any prejudice would be caused to the remainder beneficiaries consequential upon the granting of an extension of time over and above the potential prejudice of a diminution of their entitlements to the assets of the estate; and
(d) the justice of the case.[15]
[15]See Groser v Equity Trustees Ltd [2007] 16 VR 101, as referred to in the extract of Harrison at paragraph 10 above.
In relation to (a) above, while the authorities suggest that, in the absence of prejudice, and (perhaps) if there is a plausible explanation for the delay, an applicant should be permitted an extension of time unless their underlying claim is ‘hopeless’ or ‘bound to fail’, I would make the following observations concerning the relevance of the merits of the plaintiff’s claims as at about 1976:
(a) first, the Court of Appeal in Ansett v Moss[16] makes it clear that there are no rigid rules when exercising the discretion under s 99, although one might expect applicants with arguable cases to usually be granted an extension of time;
[16][2007] VSCA 161.
(b) my survey of the authorities referred to in the parties’ written submissions indicate that applications of this nature are generally dealt with as interlocutory applications, with limited cross‑examination, and that cross‑examination is generally limited to the explanation for the delay: hence the statement of Kaye J in Harrison v Harrison[17] that:
[17][2011] VSC 459, [291]. However, given that the plaintiffs’ application in that case was based upon the plaintiffs’ loss of opportunity to bring an application for an extension of time under s 99 of the Act by reason of the representations of the defendant. His Honour did in fact have extensive evidence before him to evaluate the merits of the plaintiffs’ claims. See also Corbett v State Trustees [2010] VSC 401, where Kyrou J undertook a detailed analysis of the prospects of success of the applicant’s substantive claim.
… an application for an extension of time is considered as a preliminary step in the proposed proceedings. The court does not embark upon a detailed analysis of the plaintiff’s potential claim;
(c) however, in the current case, the parties conducted themselves as if it were a full trial, not only concerning the other factors relevant to the exercise of discretion under s 99 of the Act, but also concerning the merits of the plaintiffs’ potential claims (as illustrated by the length of these reasons). The hearing occupied four sitting days, and each of the parties filed extensive affidavit evidence concerning, among other things, their current and past financial position, and their contributions to the estate. The plaintiffs were subject to extensive cross‑examination as if at trial; and
(d) accordingly, I am in a position to come to more than a preliminary view regarding the plaintiffs’ potential claims: indeed, it is difficult to see what further evidence could be called or submissions made. Any gaps in the evidence largely arise out of the effluxion of time and the death of Mrs Brown: any future trial judge would face the same difficulties. Therefore, I am in a position to form a reasonably confident view concerning the plaintiffs’ ultimate prospects of success. However, I appreciate that the merits of a potential claim are not determinative of the matter save in hopeless cases.
Further, I note that evidence of the financial position of the parties (including the remainder beneficiaries) at the time of trial, while of course not determinative of the question of the moral duty of a testator at the time of his death, is relevant to the extent that it sheds light upon what contingencies the deceased ought to have had regard to when making dispositions of property under his will.
In addition to the usual matters canvassed in applications of this nature (the explanation for delay, the contributions of the parties to the estate, and the financial position of the parties at the time of the deceased’s passing and at the time of trial), a number of other matters were the subject of extensive evidence and submissions during the hearing. The remainder beneficiaries say these matters are of no relevance, because they relate to events which took place after the passing of the deceased. The plaintiffs place substantial reliance upon these matters in support of the proposition that it would be just to grant the extension of time.
First, the plaintiffs contended that, some years after the deceased’s death, Maher Bros paid probate duties on behalf of the deceased’s estate pursuant to a loan agreement.[18] Counsel for the remainder beneficiaries has accepted that some payments were made by Maher Bros, but contends that no such loan agreement was in existence. The parties also gave evidence as to the accounting of compensation funds received by the deceased’s estate from the Road Construction Authority (‘RCA’) for the compulsory acquisition of land of the deceased’s estate in around 1976 to 1978 for the purpose of enlarging the Hume Highway (‘RCA compensation fund’).
[18]David and Anthony have also given evidence that they sighted a written document presented by Mrs Brown, which set out the terms of the loan, including a 12.5 per cent interest rate. In cross-examination, Thomas gave evidence that he was unable to recall having ever sighted or signed any documentation evidencing the loan.
The plaintiffs submitted that any payments made by Maher Bros in respect of probate duty gave rise to an equitable claim in respect of the deceased’s estate. However, the originating motions in both proceedings seek the following relief:
1.That the time for bringing this application be extended pursuant to the provisions of s 99 of [the Act].
2.That adequate provision for their proper maintenance and support be made out of the estate of the deceased for the plaintiffs.
3. Such other orders as the Court thinks fit.
I doubt that ‘such other order as the Court thinks fit’ encompasses a declaration that the estate is to be charged with an equitable interest in favour of the plaintiffs or Maher Bros. In any event, while I do not need to finally determine the matter, given that any payment of probate duties was made after the passing of the deceased, the submissions made on behalf of the remainder beneficiaries and the administrator to the effect that any such payments, at most, confer upon Maher Bros the status of a creditor of the estate, are compelling. I also agree that any such payments do not provide any basis for a claim by the plaintiffs in their own right for further provision from the deceased’s estate.
Nonetheless, I will have regard to this matter in determining whether, on discretionary grounds, the justice of the case requires that the application for leave to extend time ought to be granted. However, evaluating the weight of this matter is complicated by the fact that there is a strong possibility that the amounts paid by Maher Bros with respect to the probate duties were, or should have been, repaid by the estate from its share of the RCA compensation fund. Whether those amounts were fully repaid remains unclear.
Secondly, the administrator and the remainder beneficiaries also relied on evidence as to the alleged mismanagement of the deceased’s estate by Thomas in his capacity as executor. Counsel for the remainder beneficiaries and the administrator submitted that I should take Thomas’ conduct into account in the exercise of the Court’s discretion to order an extension of time, at least with respect to Thomas’ application, in circumstances where such an application was only available to Thomas due to his conduct in failing to administer the estate. I accept that broader policy considerations arise if, as counsel put it, the Court ‘rewards’ a party who has deliberately delayed the administration of an estate so as to take advantage of the provision which permits a party to apply for an extension of time where final distribution has not yet occurred.
Prior to turning to the evidence and the submissions of the parties in further detail, a summary of the factual background to the proceedings follows.
Background
The Maher family farm was established in the 1890s. Over time, the farm has grown in size due to the cumulative acquisition of surrounding parcels of land, first, by the deceased, subsequently, by Mrs Brown with an inheritance from her aunt, by Maher Bros (who acquired land both prior to and following the deceased’s passing) and, more recently, by David and Anthony.
The deceased died on 3 June 1975. He was survived by Mrs Brown (then of course Mrs Maher), and eleven children:
(a) Thomas, born 11 June 1943 (then aged 31 years);
(b) Gerard, born 18 August 1944 (then aged 30 years);
(c) David, born 22 May 1946 (then aged 29 years)
(d) Anthony, born 30 August 1949 (then aged 25 years); and
(e) the remainder beneficiaries, being:
(i) Desmond, born 12 August 1947 (then aged 27 years)
(ii) Rosemary, born 5 March 1953 (then aged 22 years);
(iii) Michael, born 28 July 1955 (then aged 19 years)
(iv) Patricia, born 31 May 1957 (then aged 18 years)
(v) John Joseph, born 17 September 1958 (then aged 16 years)
(vi) Christine, born 18 December 1960 (then aged 14 years); and
(vii) Damien, born 6 April 1963 (then aged 12 years).
(together, ‘the remainder beneficiaries’)
In or about 1960, the deceased established Maher Bros, which upon its inception comprised the deceased, Thomas, Gerard and David, and was later joined by Anthony in around 1966. At trial, counsel for Thomas tendered a partnership agreement dated 6 December 1967 between Thomas, Gerard, David and Anthony, which provides for the net profits of the partnership business to be distributed to the partners in equal shares.[19] The partnership can only be dissolved by the consent of each of the members of the partnership or upon the death of one of the partners.
[19]Exhibit ‘AA’.
Following the deceased’s passing, Gerard left the farm, apparently at the instigation of Mrs Brown. He ceased to play any active role in the running of the Maher family farm, and has adopted a neutral position in this litigation.
At the date of his death, the deceased’s estate was valued at a total sum of $281,384.93 (comprising real property to the value of $232,015.33 and personal property, largely livestock and farm machinery, to the value of $49,369.60), offset by probate duties, which totalled $88,674.00 at the time of the deceased’s death, as evidenced by a probate duty assessment issued in 1979. The present value of the estate land, according to a ‘kerbside’ valuation prepared by a third party valuer,[20] is estimated at $3,474,325.00.
[20]Exhibit ‘NK-4‘ to the administrator’s affidavit sworn on 29 January 2018.
The deceased’s will provided as follows:
(a) the deceased’s livestock and plant and equipment were devised to Mrs Brown, Thomas, Gerard, David and Anthony in equal shares;
(b) the property known as Barnong, comprising approximately 60 acres and a dwelling house, was devised to Thomas; and
(c) a life interest in the balance of the deceased’s estate was granted to Mrs Brown, to pass upon her death to the remainder beneficiaries.
In addition, Desmond received property known as Marraweeny, which is a farm of approximately 270 acres with a present value of approximately $317,000.00, from the deceased’s estate following his death. This property was assessed as part of the estate for probate purposes, but apparently had been transferred to Desmond prior to the death of the deceased.
Shortly after the deceased’s passing, the terms of his will were communicated to the plaintiffs and the remainder beneficiaries by Mrs Brown in a family meeting.
On 2 February 1976, probate of the deceased’s will was granted to the nominated executors, being Thomas, Mrs Brown and Gerard.
Mrs Brown remarried in 1981, and left Fine View, never to return. She died on 18 June 2014. Mrs Brown left a will dated 22 September 2009, probate of which was granted to two of the remainder beneficiaries on 26 November 2015, which provided as follows:
(a) Peppertree, comprising approximately 314 acres, was devised to David and Anthony;
(b) Thompsons, comprising approximately 499 acres, was devised to six of the remainder beneficiaries;
(c) Clements, comprising approximately 72 acres, was devised to Thomas;
(d) certain specific bequests of monies were made to Desmond Maher and of chattels and jewellery to other family members; and
(e) the residue of her estate, including loans to be repaid to her from Maher Bros and from Thomas and his wife,[21] and funds held in a bank account, totalling $436,000.00, to six of the remainder beneficiaries.
[21]The plaintiffs dispute that Maher Bros owes the Brown estate any money.
The plaintiffs are farmers by occupation, although it seems that Thomas is at least semi‑retired. Each commenced full-time work on the family farm after leaving school around the age of 16. It has been deposed by the plaintiffs that none of them have ever received any remuneration for their work on the farm from either of their parents, and that neither of their parents ever employed more than one worker (other than the plaintiffs) at a time to assist with the work on the farm. Aside from Desmond (for a brief period of time), the remainder beneficiaries have not played any active role in the running of the farm since leaving home, and have contended that they have had to make their own ‘start in life’ by pursuing and life employment outside of the family farm.
The plaintiffs gave evidence to the effect that they are unable to continue their farming operations on the land owned by the partnership and devised to them by Mrs Brown alone, and that the devised land is only viable for farming if incorporated into and used within the broader Maher family land holdings, including Fine View, upon which the house in which David and Anthony have lived their entire lives is located. Fine View passes to the remainder beneficiaries under the terms of the deceased’s will.
The plaintiffs’ work on the family farm included such tasks as clearing the land, cultivating the land and improving the soil by fertilising, sowing crops, improving pasture, removing thistles and noxious weeds and vermin, which they submit has considerably increased the value of the deceased’s estate.
While there is a clear legal delineation between land owned in the name of Maher Bros, land owned in the names of David and Anthony and land owned in the name of the deceased’s estate, it is apparent from the evidence that in practice, the farming businesses of Maher Bros and the deceased’s estate have been effectively run together by David, Anthony and (to a lesser extent in recent years) Thomas. For instance, Maher Bros has used the same equipment on both their own land and the land of the deceased’s estate. However, the estate and Maher Bros operate separate financial accounts, and their cattle have different ear tags, so the degree of integration of the two businesses (the estate and Maher Bros), at least in recent years, may have been somewhat overstated.
David and Anthony have resided at Fine View since childhood. Thomas has resided at Barnong since getting married in 1967. David and Anthony continue to work the family farm at the ages of 71 and 68 respectively. Thomas, at 74, now only performs light duties on the farm, he being in less robust health than his brothers.
The plaintiffs have deposed that, during their time working on the family property, they have contributed to the upkeep of family members including Mrs Brown, their younger siblings (being the remainder beneficiaries) and the deceased, while he was alive. This is disputed by the remainder beneficiaries, who have contended that ‘no part of the fruits of that business or the use of the land’[22] was passed on to any of them by the plaintiffs (or Mrs Brown or Gerard) throughout the duration of their mother’s life, and that they have all had to make their own way in life. The remainder beneficiaries all made affidavits concerning these matters, and their current circumstances.
[22]Affidavit of Damien Maher sworn on 19 January 2018, para 35.
As observed by the deceased’s daughter Christine in cross-examination, the Maher siblings could be said to be split into what is in effect ‘two families’, the present dispute being between the ‘older family’, being the plaintiffs who have worked the farm full-time since the 1960s, and the ‘younger family’, being the plaintiffs’ siblings (and the remainder beneficiaries), who have pursued lives off of the family farm.
In some respects, the position adopted by each ‘family’ reflects differences in their positions of principle concerning where justice lies as between the two groups of siblings. The plaintiffs’ view is that they, individually and collectively, ought to have their hard work and sacrifices in keeping the family farming business going recognised and rewarded. The remainder beneficiaries’ view is that the plaintiffs have had conferred upon them substantial benefits by their parents over many decades by their parents allowing them to use their land, rent free, to build up Maher Bros farming business and to acquire substantial property holdings. Both of these positions are genuinely, and legitimately held. However, I do consider that the prisms through which the parties viewed the current dispute did colour their evidence.
The same could be said for the plaintiffs’ attitude towards their mother, Mrs Brown. On their evidence, their mother contributed nothing to the operations of the farm, rather ‘she stayed on the bitumen road and did the housework, and did the bookwork’.[23] Mrs Brown was described as controlling. She was criticised for taking holidays funded by the income of the estate. I do accept she lived a comfortable, if not lavish lifestyle after the deceased’s passing from the resources of the estate, and the hard work of her sons. However, this perspective ignores the fact that, by the time Mrs Brown left Fine View in 1981, she was nearly seventy years of age, and had spent the best part of the past forty years running the household and raising eleven children in no doubt far more demanding circumstances than experienced by modern day homemakers. She kept the books and records of the farming business, apparently until her death. One should be cautious to underestimate her contribution, or to suggest that she ought not have been entitled to some modest comforts in her senior years. Again, I consider that the plaintiffs’ apparent hostility towards their late mother coloured their evidence.
[23]Anthony’s evidence, T 145, 18-21.
Similarly, the affidavit evidence relied upon by the remainder beneficiaries asserts that, notwithstanding that the substantial portion of the land holdings of the estate were ultimately left to them, the plaintiffs were the beneficiaries of substantial assistance from their parents. They gave little credit to the plaintiffs’ own hard work and sacrifices in farming the estate land for the benefit of Mrs Brown for the last decades of her long life.
The proceedings
The first and second proceedings were commenced on 10 August 2016 and 6 September 2017 respectively. A summary of the procedural history of the dispute follows.
On 1 December 2015, Mr John Wallis, Thomas’ solicitor, wrote to Mr Mark Maier, solicitor for the remainder beneficiaries, as follows:[24]
We refer to the above matter and note that we are now on a deadline, as a consequence of a grant of Probate having been made in Mrs Brown’s estate.
As you would appreciate, we are still governed by the old rules and our client must exercise his rights to challenge her Will, if he should choose to do so, by 25 May 2016. In addition, we note that it was Mrs Brown’s intention to rectify perceived injustices arising out of the Maher Will but this has not occurred. We appreciate that this is very much out of time but as we have said in earlier correspondence, the late Mr Maher’s estate and Mrs Brown’s estate are linked.
…
As has been repeatedly discussed, that is not the ideal way to resolve this current family disaster and certainly, under these new rules which govern every breath we take, we are now obliged even if we were not beforehand to attempt to resolve this matter as between all the family members and to avoid if possible the need to go to Court.
[24]Exhibit ‘MAM 3’ to Affidavit of Mr Maier sworn on 22 January 2018.
On 3 December 2015, Mr Maier responded to Mr Wallis as follows:[25]
You make reference to the ‘old rules’ in the context of discussing [Mrs Brown’s] estate and by that I assume you mean the Part IV legislative framework in place prior to 1 January 2015…
I note your comment that ‘we are considering whether or not our client should also seek to have varied the terms of his father’s Will.’ I take this to be a reference to a Part IV claim brought out of time by your client against the estate of his father. I understand it being thrown into the mix but in this instance such a step could founder on so many levels. The Part IV provisions that existed in 1976 are quite different again from the pre-1 January 2015 provisions. In those days adult sons, even when issuing within time, needed some degree of special reason to substantiate an order for provision. Your client however is not just seeking an order for provision, he would be seeking an order for further provision having been left the benefit of a going concern. Further, an application for extension is an application seeking an indulgence from the Court. In this case the combination of all these means that an application for an extension of time would be courageous. I do not even need to seek instructions to advise that such an application would be opposed. Being an indulgence sought from the Court, win or lose in getting the consent of the Court to issue out of time.
[25]Exhibit ‘MAM 4’ to Affidavit of Mr Maier sworn on 22 January 2018.
Further correspondence between Mr Maier and Mr Wallis ensued, including on 13 May 2016,[26] 1 June 2016[27] and on 9 August 2016,[28] when Mr Wallis wrote in unsuccessful attempts to arrange to mediate the dispute between Thomas and the remainder beneficiaries in respect of the deceased’s estate. The parties also corresponded regarding the administration of the estate: in particular, concerning the location of the titles for the estate properties, a number of which were deposited by Thomas with Sofra Solicitors, the solicitor for Maher Bros, and for David and Anthony in the first proceeding, for reasons which remain unexplained. On 23 May 2016, each of Thomas (and his wife Noel) and, separately, David and Anthony, commenced a proceeding against Mrs Brown’s estate pursuant to Part IV of the Act (‘Brown estate proceeding’). On 10 August 2016, David and Anthony commenced the first proceeding by originating motion. On 21 July 2017, by order of McMillan J, the administrator was appointed, replacing Thomas and Gerard as executors of the deceased’s estate. On 6 September 2017, Thomas commenced the second proceeding by originating motion.
[26]Exhibit ‘MAM 17’ to Affidavit of Mr Maier sworn on 22 January 2018.
[27]Exhibit ‘MAM 19’ to Affidavit of Mr Maier sworn on 22 January 2018.
[28]Exhibit ‘MAM 24’ to Affidavit of Mr Maier sworn on 22 January 2018.
The application made by David and Anthony was originally listed for hearing on 14 November 2017. However, on 3 November 2017 orders were made vacating this date, as Thomas’ application was not ready to proceed, and the administrator had not been placed in funds to administer the estate. Orders were also made on 3 November 2017 providing that evidence in the first proceeding be evidence in the second proceeding.
Gerard, whilst originally a defendant to the proceeding brought by David and Anthony, has not taken an active part in either proceeding. On 19 February 2018, his solicitor, Mr Matthew Sussmilch wrote to the Court, in which he outlined Gerard’s position as follows:
[Gerard] neither consents to nor opposes the relief sought by the Plaintiffs. He has not filed any affidavit material and does not intend to file an outline of submissions.
On 21 February 2018, upon the commencement of trial, I excused Gerard and his counsel from appearing on the basis that Gerard was not required to attend for cross‑examination. An affidavit sworn by him in support of his claim against the Brown estate was in evidence.
The plaintiffs each gave evidence at trial. David and Anthony called one additional witness, Mr Michael Tehan, the Maher family’s former solicitor. Each were cross‑examined, along with Christine Burden, one of the remainder beneficiaries.
A court book containing the bulk of affidavit material filed in the two proceedings and the Brown estate proceeding was tendered at trial, together with an affidavit sworn by the administrator on 30 August 2017. In addition, a number of documents were tendered at trial, amongst which included, relevantly, financial reports for Maher Bros for the years ended 2013 and 2015, the Maher Bros partnership agreement dated 6 December 1967, a list of titles headed ‘Anthony and David Maher titles’ (‘list of titles’) and various materials contained in a supplementary court book, being evidence as to how the RCA compensation fund was disbursed, and financial statements for the deceased’s estate.
Also of some relevance to the current proceedings are three proceedings concerning the Brown estate, issued in April and May 2016. The first in time was brought by Gerard, the second in time by Thomas and his wife Noel, and the third in time by David and Anthony. On 7 August 2017, McMillan J made orders by consent adjourning the further hearing of the Brown estate proceeding concerning the Brown estate pending the outcome of these proceedings.
The evidence
David and Anthony relied on their affidavits and the evidence given by Mr Tehan at trial. David, Anthony and Mr Tehan were cross-examined by counsel for the remainder beneficiaries. A further affidavit sworn by David and Anthony’s present solicitor, Mr Sofra, which contained evidence in respect of the accounting for the RCA compensation fund was also tendered into evidence. Mr Sofra was not cross-examined at trial. Thomas also swore a number of affidavits, and was cross‑examined at trial.
David’s evidence
In his affidavit sworn on 23 December 2016 in the first proceeding, which also exhibited an affidavit sworn on 4 September 2016 in the Brown estate proceeding, David deposed, in summary:
(a) in respect of the delay in bringing the application, David deposed that, following the deceased’s death, Mrs Brown stated to David, Anthony and Gerard words to the following effect: ‘You are not to contest your father’s will because I am going to will my land to you.’ In addition, Mr Tehan and Mrs Brown stated to David, Anthony and Gerard words to the effect that they were to ‘carry on as you are on the farm until it is all sorted out.’ David also deposed as follows:
[Following] my father’s death I simply continued farming the farming property with my brother Anthony (and Tom) for the benefit of my mother. At her direction and at the direction of the family solicitor we took no steps to wind up my father’s estate or challenge the title to the land comprising the family farm. My mother promised me that if no steps were taken to challenge my father’s estate she would leave all her land to us.
…
I believe that the delay in bringing this application can be easily explained on the basis of the information given to me by my mother and by the family solicitor at the time. My father died – and from time to time after that I was told by my mother and the family solicitor ‘not to challenge my father’s estate’. I relied on what they said and I thought they had matters in hand to recompense me and Anthony (and Tom) for the work we did on the farm. And I did not wish to ‘upset the apple cart’ for my mother.
(b) David is not well educated or, until recently, in possession of any particular knowledge of probate practice or procedure. It has only recently come to David’s attention that Mrs Brown and his brother Gerard had failed to take steps to wind up the deceased’s estate;
(c) David was only recently advised by his solicitor, Mr Sofra, prior to the issue of the originating motion in the first proceeding, that he should consider disputing his father’s estate on the basis that it had not been administered. Prior to that, David had only anticipated the possibility of a claim in respect of Mrs Brown’s estate; and
(d) the deceased’s land and farming business would no longer be owned by the deceased’s estate were it not for Maher Bros’ intervention in paying the probate duties, which are yet to be repaid by the estate.
In his affidavit sworn on 1 February 2018, David elaborated on the matters deposed to in his first affidavit, as follows:
The principal discussion that I had with my mother concerning my father’s Estate took place in the farm office at ‘Fine View’, the family Homestead. [sic] Anthony, myself and possibly Gerard were at the meeting. It took place within twelve months after the death of my father. At that time Michael Tehan, a local solicitor, looked after the family taxation and business affairs. He was the family solicitor I referred to. I do not specifically recollect being told by Mr Tehan that I was to ‘carry on at the farm until it is all sorted out’, but my mother told me at or about the time of the meeting that Mr Tehan had told her this. Later my mother told me that Mr Tehan had told her that it was best to carry on the farming operations in name of the Estate until the Roads Construction Authority (‘RCA’) acquisition was completed. The funds from the acquisition by the RCA were not received until August 1990.
At the time of the meeting my mother had told me that she was going to see Mr Tehan that day to discuss the estate.
…
My mother also knew at that time, as I had told her on several occasions before then, that Anthony and I wanted to contest our father’s will. At the time Gerard and Tom were also very upset with the way our father’s will had been written and had told us that they wished to contest it as well. All four of us had told our mother that we thought that the family property should be left to the members of the Maher Brothers partnership as we were the only people who had worked the land without pay for many years.”
In cross-examination, David gave the following evidence concerning his discussions with Mrs Brown:[29]
Mr Wells: And you knew that when your father died, apart from Barnong, which was left to Tom, his land was going to be held by your mother for life and then go to your other seven siblings who I represent; you knew that, didn’t you?---Well, that’s what the will said.
And you knew that, that wasn’t - - -?---That was read to me, I didn’t see the will.
You knew that you could contest that will?---I knew that.
You decided not to?---No, I didn’t.
You decided not to because your mother said that she would fix it up and she would will you her land?---Exactly.
[29]T137, 28-31; T138, 1-7.
David also gave evidence regarding the following matters:
(a) he recalls seeing a piece of paper signed by his mother referring to a loan to the estate by Maher Bros which showed an interest rate of 12 ½ per cent. He did not believe that Maher Bros had been repaid what they paid for probate duties;
(b) if he had to leave Fine View, he would have to live in a caravan on one of the other properties;
(c) he agreed that as at the time of the passing of the deceased, Maher Bros had land, stock, and equipment of its own;
(d) his father guaranteed a loan to Maher Bros for the purchase of land, which they paid off over fifteen years;
(e) of the land owned by him and Anthony, 450 acres is managed by their brother Michael;
(f) it was money earned by him from shearing which funded the purchase of land by Maher Bros;
(g) he agreed that the difference between what his mother promised and what was in her will was that ‘Thompsons’[30] was left to the remainder beneficiaries and that Gerard had not received anything. He had improved Mrs Brown’s land by building gates and digging dams;
[30]Valued in the inventory attached to the grant of probate at $513,700.00.
(h) he believed his mother used her share of the RCA compensation fund to pay for holidays. He gave the following evidence:
And that, where I'm living now, I've lived there for 71 years. I haven't been anywhere else, haven't had holiday. My mother give us nothin'. She treated me like a slave. She give me nothin', and I've done all the work and put the money in her bank, and everybody else comes and take the money out of it, and she went for holidays - oh, so many holidays, all around the world, and she would not put any money back into the land, even her own land.
If I wanted to buy a bull, she said "No, we're not buying a bull. You've got no money." She'll spend it, and when she married Roy Brown she paid for all of the expenses of their holidays for the both of them, and in the meantime she took her sister to Ireland, and she paid for the - all of her expenses on that, from the work I done to put the money in the bank, and I put hundreds of thousands of dollars into her bank account over - over the years.
(i) it was apparent from his evidence that he had little or no knowledge concerning the administration of the estate;
(j) Maher Bros has sold about half of its herd since June 2015; and
(k) he gave evidence as follows:[31]
You knew that you could contest that will?---I knew that.
You decided not to?---No, I didn’t.
You decided not to because your mother said that she would fix it up and she would will you her land?---Exactly.
If she had have willed you her land, in particular the Thompsons property and the Clements property in addition to the Pepper Tree Paddock, we would not be here now, would we?---We would not be.
[31]T138, 4-11.
Anthony’s evidence
In his affidavit sworn on 23 December 2016, Anthony deposed, in substance, that the facts and circumstances that support Anthony’s claim are similar to, if not identical to, the facts and circumstances deposed to by David in his affidavit evidence, and that Anthony adopted David’s affidavit material in support of their application.
In addition, Anthony, in his affidavit sworn on 1 February 2018, deposed as follows:
As well, at the time of his death, my father had already signed documents to transfer two blocks of his farming land to two of his sons. These blocks have been given to Tom and Des. Shortly after my father died, when I was discussing my Father’s estate with Des, Des told me that my father intended to give blocks of land to David, Gerard and me as well. His accidental death obviously prevented this from happening.
In his evidence‑in‑chief, Anthony largely verified the matters referred to in David’s affidavit. In his examination‑in‑chief, Anthony gave evidence that he left school at 16, and did not have any job to go to, so his father suggested that he stay and work on the farm. His father told him ‘I can’t pay you now but I’ll fix you up later’. His father was away from the farm quite a bit. He never asked for money, because he knew the farms were not making a lot of money, and his parents had a ‘fair family’ to look after. He earned a small amount of money from shearing for about four or five years after leaving school.
Anthony also gave evidence that he knew that Maher Bros paid for the probate duties for the estate, and he thought the loan attracted about 12-12.5 per cent interest. He gave evidence that all of the proceeds of sale of the stock went into the estate account controlled by his mother.[32] Maher Bros paid for all of the bulls purchased, and used its share of the RCA compensation fund to fund improvements on Thompsons (part of the Brown estate).
[32]It is not clear whether these included the proceeds of sale from the herd owned by Maher Bros.
Under cross-examination, Anthony gave evidence in respect of delay in commencing the first proceeding between the deceased’s passing and Mrs Brown’s passing, as follows:[33]
[33]T145, 24-31; T146; T147; T148, 1.
Mr Wells: What happened at that time when you found out about what [the deceased had] said in his will?---We were all in disbelief actually – well, the five of us, not so much the ones, the other seven, but um, it was all, you know, didn’t seem right; even me mother even said that, ‘You got done.’
Let’s just go through it slowly. How did you find out what your father had said? Did someone tell you or did you - - - ?---In the will?
Yes?---I think Michael Tehan might have come out and had a meeting at the house actually and read the will.
So, who was at the meeting?---Oh, I can’t recall; I think we all may have been there.
Were you given a copy, or did he just tell you what was in the will or what happened?---I think we might – well, he may not have given us a copy but I had a copy of it later though.
What did you say to your mother about what was said in the will at this time?‑‑‑Well, we were tossing up whether we should contest it, and she said, well, for starters you’ve got to have money and, secondly, she didn’t want us to do it.
So what did she actually say, do you remember?--- At that particular time? No, I – she was upset that we’re gonna contest. Then it wasn’t for some months later – look, me father had died, what, in the autumn, getting close to Christmas; well, I think it was around about Christmas time. There’s been a few things said along the lines of, ‘should be something done about it’, but then we got to about Christmas time, I think after Christmas, I think she was a bit concerned herself that nothing had happened and whatever, so it was her idea to make that offer to give us her land and don’t contest.
And what did she say?---In-well, about those few words, if you don’t contest it, I’ll hand over her portion of her land.
To whom?---To David and myself.
I think you said before that, at the time you used the word ‘dudded’, your mum said – even your mum said that you were ‘dudded’ or words to that effect; when did she say that?---Oh, probably - I don’t know, a month or two or so after the will, when we were thinking about doing something. Actually, when it comes around to that Christmas time, it was her idea to make the offer and said what she’s gonna do.
Was that followed up in any way, were there discussions with anyone else, like a lawyer or anything of that nature?---Nah. That come up, to do that, we were in the house, must have – I think she brought the subject up, there should be something done about it, and there’s others in the house at the same time. She said, ‘Come out to the office and I’ll tell you what I’m gonna do,’ that’s when we went out there and away from all the others, she said, ‘I’m going down to Tehan’s, I’m gonna get this changed.’
You said there were others in the house to start with who she started talking to, who were the others?---Well, that’s only the rest of the family, I can’t say who was there, I don’t know where they were actually, but I think the idea was to go away from everything so no one else was listening.
Who went into the office with your mother?---David and myself.
That’s when she told you, what, you said she’s going down to Tehan’s to fix it up, did she?---Yes, actually, she went that day.
Did she say anything about what happened at Tehan’s or anything of that nature?---No, when she come back, she said, ‘I’ve done that’, so we left it at that, I trusted her word for it.
In respect of delay in commencing the first proceeding following Mrs Brown’s death, Anthony gave evidence in cross-examination, extracted as follows:
[Mr Wells:]...After your mother died, you became aware that she had not in fact left you all of the land in her estate; that’s correct?---In her will, yeah.
…
You were surprised by that, no doubt?---Certainly was.
You went and sought legal advice and commenced proceedings for a claim to effectively seek further provision from your mother’s estate?---Is that what we’re talking about now, sort of thing, is it?
I’m suggesting to you that the first case you commenced was a claim for further provision against your mother’s estate, contesting her will to the extent of the provision that it made for yourself and your brother, David?---I guess that must be correct, yeah.
I suggest to you that it wasn’t till sometime – till I think a couple of months later, that you then commenced a claim to be able to re-open the question of your father’s estate; that’s what this case is here, whether or not you’d be allowed to challenge, some 42 years after he passed away, the question of the extent of the provision that he made for you in that?---That’s correct, yeah.
But the order of events, and this is my point that I want, is that, your first reaction was to contest your mother’s will; that’s correct?---Yeah.
You agreed with your mother back in around 1976 that you would not contest your father’s will, which did provide livestock and plant and equipment for you, and the Barnong property for the brother Thomas if - on the understanding that you say that your mother told you she would be leaving all of her land to the four of you, was it?---That’s right, but then it didn’t eventuate.
…..
But, had she done that, she would have complied with her promise that you say she made to you?---Yeah.
And we wouldn’t be here now, would we?---Probably not.
In cross-examination, Anthony gave evidence regarding livestock holdings in Maher Bros name, giving evidence that Maher Bros livestock is farmed separately to the deceased’s estate’s livestock, as follows:
[Mr Wells]: But certainly, the Maher Brothers Partnership had been effectively farming the estate of T P Maher livestock since the date of death of your father?‑‑‑Wrong. The estate farms its own land. The money from the sales of livestock went into the estate account. Maher Brothers was separate. The estate even had its own earmark on its cattle and its own identification number.
Who was responsible for farming the estate’s cattle? Who had the day-to-day control of that?---Well, the executors never made any firm decision on that, it was just left to David and myself, left to do it.
So in fact you and your brother David were the ones that were actually buying and selling the estate cattle but accounting for them separately to the estate?‑‑‑Yep.
You weren’t required to pay the estate any rent or agistment for use of estate land?---Just go back to your last question. We did not buy stock for the estate, we only sold.
Only sold?---We had natural increase.
Natural increase, yes, so you sold estate cattle and the estate cattle you sold, the money went into the estate bank account; is that right?---Yep.
You didn’t have to pay anything for use of the estate land?---Because, why should we? The estate had its own livestock and its own money. Why are we paying rent for estate land which we weren’t getting the stock off?
But you paid rent to your mother for her land because that had Maher Brothers cattle on it; is that right?---No.
That’s only come in the later years when I said to me mother, “If you’re not gonna finalise this stuff, and you keep saying you want more money, what’s happened to the money we been putting into these accounts?” She had a $25,000 overdraft, she wanted more money to pay off that overdraft; I did it twice, I said, “I’m not gonna sell any more livestock for you, you get someone else to do it”, and I said, “The best thing we can do is, go down to the bank and we’ll close the overdraft.”
She still had the chequebook, and that’s when she came back with the decision, and with paperwork which I signed to hand over all the - her share of the livestock to Maher Brothers. From then on we paid the rent from her land, because the cattle become ours, to her.
That’s Maureen Brown land, yes?---And the estate land, she said, well, pay the shire rates and that will square it up.
Roughly when did that occur, about the time of this letter or shortly after?‑‑‑Oh, no, no, years after.
But certainly many years before your mother passed away?---This letter or the change over?
The changeover?---Five, eight years, something, I’m not quite sure on that time.
But at that stage then you were getting the use of the estate land on the basis simply that you paid the rates for it and you had to pay your mum rent or agistment for the use of her own land, the Maureen Brown land?---That was her deal, she proposed - she told me that’s what she would do, and I said “okay then”.
Anthony also gave evidence that the equipment inherited by the plaintiffs became redundant quite quickly. He believed that the current value of the equipment used by Maher Bros was about half its book value. He confirmed David’s evidence that they have sold about 700 head of cattle since 2015. He believes Maher Bros has about 400 sheep.
Thomas’ evidence
Thomas relied on his affidavits sworn on 26 March 2017 (re-sworn on 5 May 2017), 9 February 2018 and two affidavits sworn on 3 November 2017. Thomas also relied on the affidavit of his solicitor, Mr Donald Bolton, which exhibited evidence in respect of the procedural history of the second proceeding.
Thomas’ evidence in respect of promises made by Mrs Brown were generally consistent with the evidence given by David and Anthony. In respect of his reasons for delay in contesting the deceased’s will between the deceased’s passing and Mrs Brown’s passing, Thomas deposed as follows:
(a) in his affidavit sworn on 9 February 2018 in the second proceeding:
When my father died, my mother called a family meeting. All of my siblings, including my younger siblings, were present at that meeting. So too was our family’s solicitor at that time, Mr Michael Tehan of Tehan George & Co.
At that meeting, we were all provided with a copy of my father’s last Will dated 19 August 1968.
…
My mother gave us all an opportunity to read my father’s Will and told us not to contest it as we would all be looked after when she died. I took this to mean that, by her Will, my mother would ensure that Gerard, David, Anthony and I received the same amount as [the remainder beneficiaries] received under the terms of my father’s Will; that is, she would ensure all of her children would be treated equally upon her death by allocating the property she owned to David, Anthony, Gerard and I.
In the years following my father’s death, my mother repeatedly assured me that Gerard, David, Anthony and I would be looked after upon her death. She acknowledged that we had spent our entire lives working on the family property for little pay, which had allowed the Maher Farm to grow and remain in the family. My mother told me that she would ‘make this up to us’ in her Will.
It is because of these statements, and the fact that my mother was relying on the income generated by the Maher Farm to support herself and my younger siblings, that I did not believe it was necessary (or appropriate) to challenge my father’s Will at that time. I recall having a conversation with the then family solicitor Michael Tehan in his office in the presence of my mother and my brother Gerard, to discuss my father’s estate. He indicated that we should continue on as we were doing and that is, my brothers and I should run the farm for the benefit of the family and my mother should be responsible to manage the estate. In fact, both of these issues were interlinked and we just continued with business as usual.
(b) in his affidavit sworn on 26 September 2016 in the Brown estate proceeding:
My mother said to me and my brothers that it would be improper for us to contest our father’s Will because it would disrupt the Maher Brothers Partnership, and the farming activities that I was running for her on her property. My mother pleaded with me and my brothers not to contest Thomas P Maher’s Will, and that if we agreed not to contest Thomas P Maher’s Will, she would ensure that her Will distributed her assets and the assets of Thomas P Maher (deceased) in an equitable fashion.
…
My mother requested me, after the death of my father, to continue to work on my mother’s land with my 2 Brothers [sic] David and Anthony to enable her to pay all bills, rates, provide food, clothes and financial income for my mother and for our 4 brothers and 3 sisters for their primary and secondary education, general needs, wellbeing and for their activities of daily living.
…
[Mrs Brown] used the Estate money to live a comfortable life, which included three trips overseas and around many place [sic] in Australia. If I did complain to my mother in relation to my entitlements, she would abruptly indicate that she didn’t want to discuss any such matters and would often say to me that ‘we are not going to contest your father’s Will because I am going to will my land to you.” I understand that my brother Gerard had been told similar things in relation to his entitlements in respect of the [deceased’s estate].”
(c) in his affidavit sworn on 3 November 2017 in the second proceeding:
In addition to my accepting the reason stated at paragraphs 28 and 40 of my previous affidavit, my mother telling me why it would be improper to contest my father’s Will, I did not know that I could have contested his Will within six months of Grant of Probate, had I not been an executor. I left it at accepting what my mother told me. Tehan George & Co never brought it up during my mother’s life. The first time I was advised that I could make a claim contesting my late father’s Will was about May 2015 by my solicitor, John Wallis, at the firm James Hopper & Associates. I was advised I was well within the time to make a claim against my mother’s estate – six months – but that a claim against my father’s estate would be out of time, although I could still try for it. I knew an executor could not put in a claim against the estate. I was advised that if I stood down as an executor, I could. I had to wait until I stood down. On that advice, I said that I would stand down.
In his affidavit sworn on 26 September 2016, Thomas also deposed that although Barnong was left to him under the deceased’s will and he currently lives there (and has paid the rates since moving in), it is yet to be registered in his name. Thomas had on occasion requested that Mrs Brown transfer the property into his and his wife’s names but she would respond with ‘not now’.
In his affidavit sworn on 9 February 2018 in the second proceeding, Thomas deposed, in respect of his reasons for delay in contesting the will following Mrs Brown’s passing:
(a) following Mrs Brown’s death, Thomas received advice from the estate solicitor Mr Paul McDonough ‘always to mediate if possible’.
(b) in May 2015, Thomas engaged a new solicitor, Mr John Wallis, to represent him in the present matter. Thomas deposed that Mr Wallis also advised in favour of mediation, as follows:
My solicitor advised me that I was able to challenge my mother’s Will in the period of six months after a grant of probate had been made in her Estate but that I was significantly out of time with respect to a claim against my father’s estate. As outlined below, I had not wished to challenge my father’s Will and therefore, challenge my mother. My solicitor indicated to me that to bring an application out of time would be expensive and would be an involved process. I recall he mentioned in our conversation the Ansett case where a successful challenge had been brought many years after Sir Reginald Ansett’s death. After further discussion it became obvious to us both that for the reasons set forth below because of the intertwining of both Estate and the Maher Brothers land, the better process might be seek to mediate a resolution of all the issues in one mediation.
I accepted that advice and instructed my solicitor to adopt that procedure on the basis that if a mediation was unsuccessful then I would seek leave of the court to issue my application out of time.
(c) on the basis of the legal advice received and ‘with a view to minimising legal expenses and maintaining the many family relationships’, Thomas instructed Mr Wallis to engage in multiple attempts to initiate mediation with the remainder beneficiaries from 1 December 2015 up to around 31 January 2017, which were unsuccessful;
(d) in or around January 2017, Thomas, Gerard and their solicitors identified a potential conflict of interest in circumstances where Thomas and Gerard should commence a Part IV application, by virtue of their status as both executors and claimants against the deceased’s estate. Thomas and Gerard (who later elected not to join in the application) took steps to be replaced as executors of the deceased’s estate;
(e) subsequently, Thomas took steps to raise the funds required to cover the cost of preparation of the application and Court issuing fee. Thomas deposed that the proceeding was issued once he had gathered sufficient funds to cover costs, with his daughter’s assistance; and
(f) Thomas denied deliberately engaging in any tactics to delay the administration of the deceased’s estate or ‘to keep my Part IV claim alive’. He attributed any delay in the administration of the estate to the various solicitors engaged by the executors over the years.
David and Anthony both gave evidence that if their mother had kept her promise to leave her land to the members of the Maher Bros partnership, they would not have sought an extension of time to bring a claim with respect to the deceased’s estate. Thomas’ evidence on this point was somewhat more equivocal. At first he said that he would have challenged the deceased’s will even if his mother had kept her promise, then he said that he would not have, then he said he would have considered the matter.
Mr Tehan’s evidence
Mr Tehan gave viva voce evidence at the hearing. During examination by counsel for David and Anthony and in cross-examination by counsel for the remainder beneficiaries, Mr Tehan gave evidence to the effect that he had no specific recollection of any discussions concerning the deceased’s will following his passing or the alleged loan agreement between Maher Bros and the deceased’s estate. Mr Tehan had only a vague recollection of the process by which probate duties were paid in respect of the deceased’s estate.
However, he believed the balance of the outstanding probate duties were paid from the RCA compensation fund. He agreed that he could have said the words attributed to him by David in his affidavit, on the basis that the farm was an ongoing primary production operation. Also, the estate would need to continue in operation pending the finalisation of issues with the RCA.
The financial position of the plaintiffs
Of relevance to the merits of the proceedings before me is the question of whether the plaintiffs are caught by the scope of a ‘special claim’ as set out in Hughes,[34] for instance, by virtue of their contribution to the estate, their lack of earning power, and, in Thomas’ case, his number of dependents, at the time of the deceased’s passing. A relevant consideration is whether Maher Bros’ business, which was independent from the deceased’s estate, was financially viable so as to give rise to the inference that the plaintiffs were self-supporting at the time of the deceased’s passing.
[34](1979) 143 CLR 134.
Personal circumstances of the plaintiffs in 1975
In respect of his personal circumstances as at the date of the deceased’s death, Thomas deposed that he had a quarter share in Maher Bros, in addition to four and a half acres of vacant land in Violet Town, but did not own a home or any other real estate. In addition, he was at the time supporting three young children: Maree, born on 4 July 1968; Tommy, born on 13 February 1970; and Julie, born on 17 April 1972.
David and Anthony have not expressly addressed this matter in their affidavit material, but they also each held a quarter share of Maher Bros at the date of the deceased’s passing.
Maher Bros’ position in 1975
In his affidavit sworn on 3 November 2017 in the second proceeding, Thomas deposed that as at the date of the deceased’s death, Maher Bros’ most significant asset was about 1,430 acres of vacant land. It was submitted by counsel for David and Anthony at trial that those properties, if divided between the four partners, would have resulted in ‘about 350 acres each, which is hardly a farm to sustain yourself on.’ There was no evidence as to the value of the land owned by Maher Bros as at 1975. However, if it is assumed that the Maher Bros land was comparable to the estate land (which I accept may not be a justifiable assumption, particularly given the absence of any improvements on the Maher Bros land), then based upon the size of the Maher Bros land holdings compared with the size of the deceased’s land and the valuation of that land in the inventory of the estate, an indicative value of approximately $200,000.00 could be attributed to Maher Bros landholdings as at 1975. Alternatively, the value of the Maher Bros landholdings was shown in the 2015 accounts as $655,449.00 at cost. Approximately half of this land was acquired prior to the passing of the deceased.[35] While I accept that the later purchases (in 1984 and 1986) would be likely to have been more costly than the earlier purchases, this shows that the value of the Maher Bros landholdings as at 1975 was likely to have been quite significant, and certainly not negligible. Maher Bros also had its own livestock and equipment, including a tray truck, a stock crate and a small amount of machinery.
[35]It is not possible to reconcile the list of titles with the rate notices exhibited to David’s affidavit to identify with any precision which land was acquired by Maher Bros prior to 1975.
The current position of Maher Bros and the plaintiffs
David gave evidence as to his present financial position. As at 3 September 2016, the total value of his property interests was approximately $767,000.00 (later revised to $1,718,000.00 in his affidavit sworn on 1 February 2018), in addition to a share of savings in Maher Bros to the value of approximately $40,000.00. In respect of livestock, David deposed that he was unable to estimate the value of the Maher Bros livestock but believes that the total herd of cattle comprises 724 in number and the total flock of sheep is approximately 300. Anthony believes there are about 400 sheep. David gave evidence that the value of the Maher Bros herd of cattle is approximately $500,000.00, and the flock of sheep is worth about $35,00.00.
In cross-examination, David gave evidence as to the plant and equipment holdings that had been acquired by Maher Bros, valued at $1.8 million at cost for the year ended 2015. David gave evidence that the plant and equipment holdings had been used for the running of the deceased’s estate over the last 45 years. Anthony believes that the current value of the Maher Bros plant and equipment is approximately half of its book value.
(b) Counsel submitted, further, that the plaintiffs understood their rights under the deceased’s will, including that ‘they were only getting the livestock, plant and equipment…none of their father’s land, and they understood quite clearly what land was in their father’s estate and what land was in their mother’s estate.’ Further, counsel challenged whether receipt by the plaintiffs of advice on their legal rights at the relevant time would have altered the election they made, given their reliance on their mother’s promise;
(c) any promises made by Mrs Brown or actions or conduct of the plaintiffs after the date of death of the deceased are irrelevant to determining whether or not the plaintiffs have any arguable claim for further provision from the deceased’s estate. To the extent that relief is available to the plaintiffs, such relief is against the estate of Mrs Brown rather than the estate of the deceased. Counsel submitted that even if the plaintiffs can establish that the alleged representations made by Mrs Brown were in fact made to them, at its very highest, a claim could be made in equitable estoppel in respect of the Brown estate, consistent with the principles in Harrison v Harrison;[55]
[55][2011] VSC 459.
(d) it is disputed that the plaintiffs or Maher Bros are owed any monies by the deceased’s estate for the payment of probate duties and, in any event, this is irrelevant to whether the deceased had any obligation to have made further provision in his will for any of the plaintiffs;
(e) the plaintiffs have no arguable case for further provision from the estate, having regard to the primary obligation the deceased owed to Mrs Brown, the secondary obligation the deceased owed to his seven other children (the majority of which were younger than each of the plaintiffs), the size of the deceased’s estate, the value of the entitlements provided to the plaintiffs under the will (being the assets of the partnership, and in Thomas’ case, land), the personal and financial circumstances of each of the plaintiffs at the time, and the law applicable to claims by adult sons at the time of the deceased’s passing;
(f) further, in respect of the plaintiffs’ reliance on Coates,[56] that it was foreseeable to the deceased at the time of his passing that the plaintiffs would continue to be self-supporting, given they already owned land, had an independent source of income and were able-bodied. On the other hand, it was unclear at that stage as to the remainder beneficiaries’ capacity to become self-supporting; and
[56](1956) 95 CLR 494.
(g) prejudice would be suffered by the remainder beneficiaries and the estate, if any of the plaintiffs were now given leave to commence claims, such prejudice arising out of:
(i) the death of Mrs Brown, the inability of the parties to adduce evidence from her, and the inability of Mrs Brown to either make her own claim against the estate and/or to alter her own will in consequence of any proceeding against the estate;
(ii) other evidentiary issues arising out of the long passage of time that has elapsed. Counsel referred to the difficulties encountered by the witnesses during the course of this trial in recalling events which had occurred in the 1970s and 1970s;
(iii) the beneficiaries having been denied by the executors a timely distribution of their entitlements upon the death of Mrs Brown, in circumstances where one of the plaintiffs (Thomas) now seeks to take personal advantage of that failure and in substance take a benefit from having acted in conflict between his duty as an executor and his interest as a claimant against the estate; and
(iv) the potential interference with the beneficiaries’ rightful expectations, which have been undisturbed for over forty years; and
(v) with respect to the merits of the plaintiffs’ claims, counsel submitted that the Maher Bros land is (and was at the time of the passing of the deceased) valuable. The plaintiffs have conducted themselves as if the estate was theirs. In 1975, Mrs Brown and the remainder beneficiaries had greater claims on the estate, and currently, the remainder beneficiaries have financial needs and health issues to deal with.
Administrator’s submissions
In his written submissions, the administrator submitted, in summary, as follows:
(a) the delay in issuing the present proceedings is a relevant factor, given the length of the delay, and given that the plaintiffs were aware of and elected not to exercise their rights from the outset. The reasons advanced by each of the plaintiffs for the delay, while potentially relevant to a claim against the Brown estate, are irrelevant to a claim against the estate of the deceased;
(b) the plaintiffs are unlikely to be able to demonstrate that the deceased had a responsibility to make provision for their property maintenance and support but failed to do so, in light of each of the respective plaintiff’s financial resources and needs (considered at the time of the deceased’s passing and for the foreseeable future), including the fact that they have had use of the estate land for over forty years without having to pay rent;
(c) Thomas cannot rely on the poor state of the estate to excuse his delay, including any delay after 2014, in circumstances when the body of evidence suggests that it was Thomas’ actions in his capacity as executor that caused all or many of these problems;
(d) in respect of the alleged debt owed to Maher Bros in respect of probate duties, the administrator’s position is that land belonging to the deceased’s estate could have been sold to satisfy the probate duties payable, but in any case the estate’s share of the RCA compensation fund ought to have covered any debts outstanding to Maher Bros;
(e) in respect of the claim that the plaintiffs had worked the land of the deceased without pay, the administrator submitted that any work of the plaintiffs was done for the principal purpose of increasing the land held by the plaintiffs or Maher Bros. This was evidenced by the fact that Maher Bros, and separately Anthony and David, have accumulated relatively large and valuable land holdings in their own names (in addition to stock and equipment). This matter is therefore not relevant to any claim against the deceased’s estate. That Mrs Brown also derived some benefit from the use of the estate land is irrelevant; and
(f) section 24 of the Supreme Court Act 1986 (Vic) gives the Court a very wide discretion in regard to the costs of a proceeding. Given the matters set out above, the plaintiffs should pay the administrator’s costs of defending the applications on an indemnity basis, in addition to bearing their own costs.
Conclusions
In my view, the applications for an extension of time must fail, for the following reasons:
(a) first, while I accept the plaintiffs’ evidence concerning what their mother told them after they became aware of the terms of the deceased’s will, and that they did not obtain advice concerning their rights under the Act until recent years, I consider that the plaintiffs did not fail to challenge the will by reason of any ignorance of their rights, but rather by reason of their reliance upon their mother’s promise;
(b) the delay in bringing these proceedings, both prior to 2014 and after 2014, has caused the remainder beneficiaries prejudice;
(c) the plaintiffs’ claims for further provision are not hopeless, in the sense that an application for summary judgment would have been unlikely to be successful, even having regard to the applicable law with respect to claims by adult sons as at the time that any proceedings brought by the plaintiffs would have been heard and determined. However, there is sufficient evidence before me to conclude that the plaintiffs’ claims do not have sufficient prospects of success to warrant an order in their favour, having regard to the length of the delay, the reasons for the delay, and the prejudice to the remainder beneficiaries;
(d) the fact that the plaintiffs may have an alternative remedy, being their claims against the Brown estate, weighs against disturbing the long standing testamentary dispositions of the deceased; and
(e) the payment of probate duties by Maher Bros is not of great relevance to the exercise of discretion, particularly given that the question of whether any loan by Maher Bros to the estate remains unpaid, is not capable of resolution in these proceedings. Further, Maher Bros received some benefit from having access to the whole of the deceased’s land.
More detailed reasons in relation to each of the above follows.
First, the delay in the making of these applications, while explicable, is extremely lengthy. While I have limited my survey of the authorities to those referred to in the parties’ written submissions, that survey has shown that, with the exception of the application in Ansett v Moss,[57] the relevant periods of delay were generally in the order of weeks, months, perhaps up to five years, and in some cases a matter of just days. For example, in Groser v Equity Trustees,[58] a delay of five years was described as ‘a substantial period of delay’. A delay of forty years is well outside the bounds of experience in this jurisdiction. While the length of the delay does not shut out the plaintiffs from obtaining relief, it is a factor weighing against the grant of relief.
[57][2007] VSCA 161.
[58][2007] 16 VR 101.
The question of prejudice will be discussed further in these reasons. However, given the length of the delay in making the current application, it should be noted that there is a line of authority to the effect that delay in bringing or prosecuting an action, even in the absence of any evidence of prejudice, may amount to an abuse of process. In Bastistatos v Roads and Traffic Authority of New South Wales (‘Bastistatos,’)[59] the High Court dismissed an appeal from the NSW Court of Appeal staying a personal injury proceeding issued 29 years after the relevant cause of action accrued, notwithstanding the action had been commenced within the applicable limitations period, and there had been no unmeritorious conduct on the part of the plaintiff, who was severely disabled. In dismissing the appeal, the plurality stated as follows:[60]
…attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by the lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff’s case to proceed would clearly inflict unnecessary injustice upon the defendants.
[59](2006) 226 CLR 256.
[60]Ibid, [69].
Of course, each application for an extension of time needs to be viewed upon its merits, and this is not a personal injuries claim, where different evidentiary considerations may arise. However, the decision in Bastistatos[61] illustrates that excessive delay, even without more, may be a significant bar to any plaintiff seeking vindication of their rights. Further, while the Act is properly characterised as beneficial legislation, the authorities do refer to proper regard being had to the policy evident from the strict time limits in the Act, being that applications under Part IV of the Act ought to be made promptly.[62]
[61]Ibid.
[62]See Re Guskett [1947] VLR 212, Re Barrett [1953] VR 308, Re Nassim [1984] VR 51, and Bennett v Pettit [2012] VSC 234.
Second, while again the question of delay is not determinative, the delay in bringing the applications after the plaintiffs discovered the terms of Mrs Brown’s will in 2014 is also relevant. While some explanation has been provided for the delay, those explanations have not been entirely satisfactory, and it is surprising there has been such a desultory approach, particularly by Thomas, given the indulgence sought by the plaintiffs in these proceedings. This is particularly the case given that not only have the applications delayed the final administration of the deceased’s estate, but also the finalisation of the Brown estate, in circumstances where most of the beneficiaries of each estate are in or are moving into their senior years. Further, the authorities provide that, where an application for an extension of time is made on the basis that an applicant was unaware of their rights, the application should be made promptly once they do become aware of those rights.[63]
[63]For example, Re Nassim [1984] VR 51, 54.
Thomas gave evidence that he became aware of his rights to make an application for an extension of time in or about May 2015, although there is in evidence a letter to him from the estate’s former solicitors of 1 September 2014 which provides advice as to a foreshadowed claim against the deceased’s estate by Gerard. David and Anthony issued their application in August 2016, and Thomas in September 2017. In his affidavit sworn on 23 December 2016, David says he was only advised as to his rights to bring a claim against the deceased’s estate shortly before the issue of the first proceeding: however, there is also a letter in evidence where his solicitors state that David and Anthony had been provided with the correspondence extracted at paragraphs 47 and 48 above ‘some time ago’. While there was some correspondence between solicitors regarding a possible mediation, it progressed at what can only be described as a languid pace. While the solicitors’ efforts to resolve matters are to be applauded, given the period of delay, and the indulgence being sought, it was incumbent upon the plaintiffs to act with some haste once they became aware of their rights. As for the need for Thomas to take steps to remove himself as an executor of the estate, while I accept this could be productive of some delay, it is not a particularly complicated task, and the application, once made on 31 March 2017, was resolved within four months. Again, the later period of delay weighs against the grant of an order for an extension of time, at least in respect of Thomas’ application. It carries less weight in respect of the applications made by David and Anthony.
As for the reasons for the delay, the current case is unusual. I accept that the plaintiffs, not having sought or obtained legal advice, made the decision they did without full knowledge of their legal rights, including the applicable time limits. Further, I can see how the plaintiffs might have accepted advice to the effect that the status quo ought to remain pending the outcome of negotiations with the RCA. The length of the delay is also attributable in part to the extraordinary longevity of Mrs Brown, which, given the explanation of the plaintiffs that they relied upon their mother’s promise, cannot be sheeted home to the plaintiffs. Further, while Thomas has been criticised for the delays in finalising the negotiations with the RCA, one can see why there was no particular imperative to finalise the deceased’s estate while Mrs Brown was alive. However, that explanation ceased to have any merit after the passing of Mrs Brown.
Further, while the plaintiffs did not have a full and precise appreciation of their legal rights, they did, on their evidence, understand two things: first, under the terms of the deceased’s will, they had not received, and they were never going to receive the deceased’s land, including Fine View; and secondly, it was possible to contest wills. For reasons which are not entirely clear, given the disparity in the size of the relevant land holdings, and the centrality of Fine View to the broader Maher family farming operations, they were prepared to accept Mrs Brown’s proposal. While I would not go so far as to find the plaintiffs would definitely not have challenged the deceased’s will had they received legal advice, their evidence that they did not want to ‘rock the boat’ suggests that they probably would not have altered their position, and may well have not had the resources to fund legal proceedings. In some respects, the explanation for the delay is a neutral factor: it is a plausible explanation for the delay, but it highlights the fact that the plaintiffs’ remedy may lie elsewhere.
As for the question of prejudice, the decision of the High Court in Bastistatos[64] supports the proposition that, where there has been a lengthy delay in bringing or pursuing proceedings, some prejudice can be presumed, even in the absence of disentitling conduct on the part of the plaintiff, or evidence of particular prejudice. In any event, there is evidence of relevant prejudice in the current application. While that prejudice could not be described as extreme, it is real, and, while not determinative, does weigh against the grant of an extension of time.
[64](2006) 226 CLR 256.
First, the evidence given by the plaintiffs and Mr Tehan during the course of the hearing of the application shows the difficulties caused by the effluxion of time. While this evidence largely concerned matters somewhat tangential to the issues in these applications, such as the administration of the estate, the payment of probate duties, and the accounting for the distribution of the RCA compensation fund, those difficulties do illustrate the problems which arise when evidence is sought to be adduced concerning events which took place decades ago. Further, it seems that the administration of the estate had been plagued by difficulties in obtaining documents relevant to the administration of the estate, in part at least because of the lengthy period of time over which the estate had been administered.
In addition, there are two particular forensic issues central to the determination of this application which have been affected by the delay, and the passing of Mrs Brown. While I appreciate that it was the death of Mrs Brown and the discovery of the terms of her will which precipitated these proceedings, had the claims been brought while she was alive, she would have been an important witness, both with respect to the conversations which were said to have taken place between her and the plaintiffs, and the comparative financial positions of the parties. Secondly, the lapse in time has made it difficult, although not impossible, to assess the financial position of the plaintiffs at the time of the deceased’s passing, which is a critical issue in determining whether the deceased breached his moral duty to the plaintiffs. While it has been possible to arrive at some very rough estimates of the value of the Maher Bros land holdings as at 1975, it would have been much easier to have undertaken a thorough assessment of the financial position of Maher Bros at a trial in the late 1970s. Accurate land valuations could have been acquired, and stocktakes of livestock and plant and equipment could have been undertaken to enable a court to have a much clearer picture of the plaintiffs’ financial position, compared with that of Mrs Brown and the other children of the deceased. It may have also been possible to better evaluate the likely entitlements of the parties from the RCA compensation fund without the complication of the estate’s escalating liability for probate duties.
Accordingly, the most significant prejudice is the forensic difficulties caused by the passing of time. However, I agree that there is also other prejudice to the remainder beneficiaries by the making of such a late application for an extension of time. First, while I agree that no relevant prejudice is occasioned to the remainder beneficiaries merely by being exposed to a claim by the plaintiffs under Part IV of the Act, the question of delay is relevant. The remainder beneficiaries have presumably known of the terms of the deceased’s will for many decades, and may have organised their affairs accordingly.[65] Further, these proceedings have not only delayed the distribution of this estate to the remainder beneficiaries, they have also held the plaintiffs and the remainder beneficiaries out of their entitlements from the Brown estate. While the Brown estate is the subject of claims under Part IV of the Act, one might have expected that, given those proceedings were issued in 2016, that the trial of the Brown estate proceedings would have at least been heard by now, if not determined.
[65]See Re Nassim [1984] VR 51, where Nicholson J stated that ‘one of the obvious purposes of the imposition of a time limit in cases of this sort is to have some certainty about the ordering of their affairs, having regard to their expectations from the estate.’
Turning now to the merits of the plaintiffs’ claims, in my view, while they had arguable claims, those claims were not strong. While they could not be said to have been hopeless, they would have had limited prospects of success, and as such, could be said to have been ‘flawed’.[66] As at 1975, the plaintiffs were able bodied young men in their late twenties and early thirties. Thomas had dependents, but he was provided for, at least partially, by being left Barnong, which was his home. The other older son, Desmond, had been provided for by the deceased prior to his death, despite as well being a remainder beneficiary.
[66]See McCann v Ward and Anor [2010] VSC 452, [11].
By 1975, the Maher Bros partnership had been operating for some fifteen years and in its present form for eight years. In that eight years, it had generated sufficient income to fund the purchase of three parcels of land, in 1968, 1969, and 1973, totalling approximately 1,430 acres (noting that the estate land, including Barnong, comprised of approximately 1,700 acres). My estimates of the value of the Maher Bros landholdings are crude, but show that the value was not insignificant. The deceased had agreed to guarantee a loan to purchase at least one of the parcels of land. Compared with the remainder beneficiaries at that time, the plaintiffs had shown themselves to be able to eke out a livelihood and accumulate assets. While information on these matters is limited, it appears that Maher Bros had its own livestock and capital equipment. In short, they had a viable business, which was augmented by the livestock and equipment left to them by the deceased in his will. If it was in fact the case that Mrs Brown sold all of the estate stock and kept the proceeds for herself, that was not what could have been anticipated by the deceased at the time of his death. He would have been entitled to assume that the bulk of his herd and plant and equipment would go to Maher Bros.
The plaintiffs submitted that they would each have a ‘special claim’ for further provision on the basis of their contributions to the estate prior to and after the passing of the deceased. In Hughes,[67] the High Court held that:
a special claim may be found to exist because the plaintiff has contributed to building up the testator’s estate or has helped him in other ways.
[67](1979) 143 CLR 134.
The uncontested evidence of each of the plaintiffs is that they worked for their father on the estate land for many years without payment. That work is said to have built up the estate.
While certainly the work that the plaintiffs did helped their father, one could query whether that work in fact ‘built up the estate’ in a true sense. There is no evidence that the deceased purchased any land after the plaintiffs commenced working on the farm. The evidence instead suggests that the deceased augmented his inherited land holdings in the 1940s and 1950s, when the plaintiffs were children. The plaintiffs’ evidence was to the effect that the deceased’s plant and equipment was outdated at the time of his passing, having largely been accumulated in the 1950s. No doubt the plaintiffs’ work contributed to the number and value of the deceased’s livestock, but the Maher Bros partnership members received four‑fifths of the livestock under the will. One could infer that the plaintiffs’ work contributed to the value of the deceased’s land, by helping to keep it in good order, but it is difficult to attribute a value to that.
Really, what the plaintiffs had was a claim for unpaid wages, against which would have to be offset their board and keep, and, arguably, some allowance for their use of the estate land to conduct the Maher Bros farming business. That said, I agree that the plaintiffs would have had, if their claims had been brought within time, a special claim which would have enlivened the jurisdiction of the Court to question whether the deceased had discharged his moral duty to the plaintiffs. However, having regard to the size of the estate, particularly net of probate duties, the principle of freedom of testation, and the financial position and prospects of the plaintiffs compared with that of Mrs Brown and the remainder beneficiaries, the most probable outcome of any such inquiry would have been a finding that the testator had discharged his moral duty to the plaintiffs.
The plaintiffs’ claims in respect of the deceased’s estate are predicated on the proposition that the relationship between the plaintiffs and the deceased was all one way: that is, they worked for their father for free and their father provided nothing for them. I do not consider this reflects the true position. Maher Bros was able to accumulate substantial parcels of land between 1968 and 1973. Maher Bros was able to not only utilise the deceased’s plant and equipment to assist with their farming operations, they also had access to the farming infrastructure, which was said to be all located at Fine View. Their father was a guarantor for at least one loan. In effect, the plaintiffs received a solid head start in their farming business.
The size of the estate, particularly having regard to the competing claims of Mrs Brown and the remainder beneficiaries, also supports my conclusion that the plaintiff’s prospects of success were slim. After the gifts of plant and equipment to the Maher Bros partners and Mrs Brown, and the gift of Barnong to Thomas, the gross value of the estate was $231,679.23. From this sum the amount of probate duties which had to be paid was $88,674.00, leaving a net residuary estate of $143,005.23. When viewed against the size of the estate, and the competing claim of Mrs Brown in particular, the value of the assets left to the plaintiffs and Gerard, being $41,454.56 (approximately thirty per cent of the value of the residuary estate) appears reasonably generous, noting that if the plaintiffs had had their way, their seven siblings would receive nothing whatsoever from the deceased’s estate.
Further, to the extent that evidence of what occurred after the deceased’s passing is relevant, that evidence supports what might have been within the contemplation of the deceased at the time of his passing: that the plaintiffs, through their hard work on the family farm, would continue to build up their assets and continue to derive a living from farming. While there might be difficulties for individuals realising those assets, those difficulties arise out of the terms of the partnership agreement, not any conduct or oversight of the deceased.
The terms of the Maher Bros partnership agreement are also relevant to the submission made on behalf of Thomas that there has been a fundamental change in Thomas’ circumstances which warrants revisiting the terms of the deceased’s will. While there was no direct evidence on this point, it seems that Thomas’ current financial position is somewhat dire. Of course, he has a one‑quarter share of the assets of Maher Bros, but limited if no income. David and Anthony’s evidence is that they want to continue farming, and I can infer from that that they would not consent to a winding up of Maher Bros and the realisation of its landholdings.[68] However, again, that is a consequence of the terms of the Maher Bros partnership agreement. Thomas also points to his indebtedness to Maher Bros, secured against his interest in the Maher Bros land. However, it is difficult to see how a court would deprive one group of siblings of part of their inheritance by reason of the perhaps unintended consequences of commercial agreements between another group of siblings.
[68]There is also a letter in evidence from Gerard’s solicitor to the effect that he would not consent to a winding up of Maher Bros.
Accordingly, the plaintiffs’ prospects of success in any claim for further provision from the deceased’s estate, while not hopeless, are very slim. Accordingly, this weighs against granting an extension of time.
Finally, while the payment of probate duties by Maher Bros is relevant to the exercise of the Court’s discretion, given the breadth of that discretion, it is not a matter of great significance to the application. First, if Maher Bros had not paid the probate duties, or part of them, some of the estate land would have had to have been sold. That would have diminished the value of Mrs Brown’s life interest, and the value of the remainder interest. The value of what the plaintiffs expected to receive from the Brown estate would not have been affected. Further, while the payment of probate duties was clearly for the benefit of the estate, Maher Bros also benefitted from the payment of the probate duties by having continued access to the entirety of the estate land, rent free, to enable it to continue its farming business.
It is difficult to quantify the value of continued access to the entirety of the estate land, both prior to and after the passing of the deceased, just as it is difficult to quantify the benefits to the deceased, the estate, and Mrs Brown from the work of the plaintiffs, or to determine which party was the net beneficiary of the arrangements between the parties over the past six decades. The best that can be said from this vantage point is that the benefits did not all flow one way. What can be said is that the remainder beneficiaries, apart from Desmond, have received no benefits, or negligible benefits from the estate to date, which is reflected, at least in part, in their less favourable asset position.
Finally, in these reasons, I have treated the plaintiffs’ applications interchangeably, given that the explanation for the delay in bringing the claim was substantially the same, the length of the delay was the same (at least up until 2014), and the asset position of the plaintiffs as at 1975 was largely the same. However, for completeness, there are some relevant differences in the position of Thomas, on the one hand, and David and Anthony on the other hand.
In 1975, the plaintiffs each held equal shares in Maher Bros, and all worked on the farm. Apparently there was some conflict about who did what work, but it is not necessary to resolve that conflict here. However, Thomas was in a different position than David and Anthony, in that, as at 1975, he had a wife and three young children. However, it is difficult to see how a court in 1975 would find that a 31 year old able bodied man with a young family was in ‘special need’. In any event, Thomas was given more favourable provision in the deceased’s will than David and Anthony, being Barnong, his home of some years. Accordingly, any greater need on Thomas’ part was substantially addressed by the terms of the deceased’s will, which provided a home for him and his family. He has remained at Barnong since, and David and Anthony have lived at Fine View rent free.
Thomas’ financial circumstances and his health is poorer than those of David and Anthony, given he has been unable to work full time since suffering an assault in 2012. David and Anthony also own more land then Thomas, all of which land is unencumbered, and they are willing and able to continue farming. However, as noted in paragraph 144 above, Thomas’ relatively poorer financial situation does not amount to a ‘supervening’ event which would justify the grant of relief. The issue for Thomas seems to be not the value of his assets, but their illiquidity, given the terms of the Maher Bros partnership agreement. Further, that part of his share of the Maher Bros landholdings is encumbered to secure a loan made to him by Maher Bros in about 1990 is not a supervening event.: there is no evidence concerning the terms of the loan, the reason for Thomas requiring the loan or for Maher Bros agreeing to it being made. However, I accept that were Thomas’ application to be granted, and the Court were to find that the deceased had breached his moral duty to Thomas, a court might be minded (given that the amount of any award would be based upon the circumstances at the time of hearing) to make greater provision for Thomas than for David and Anthony. However, that distinction does not alter the fact that in the current case, I have found that it is unlikely that a court would find in favour of any of the plaintiffs in relation to the threshold question of whether the deceased had breached his moral duty to the plaintiffs.
Slightly different considerations also apply with respect to delay, at least in the post 2014 period. David and Anthony gave evidence that they learnt of their rights to bring a claim against the deceased’s estate shortly prior to issuing the first proceeding in August 2016. While there is some evidence to suggest that this period might have been a matter of months rather than weeks or days, any delay on the part of David and Anthony pales into insignificance when one considers Thomas’ delay in bringing the second proceeding (a delay of over two years). I have found that Thomas’ delay has not been satisfactorily explained, and has caused prejudice to the remainder beneficiaries, by, among other things, delaying the finalisation of the deceased’s estate, and the Brown estate. Accordingly, the delay in bringing these proceedings after 2014 would not tell against David and Anthony, but would be a relevant factor in denying relief to Thomas.
In conclusion, having regard to all of the relevant discretionary factors, in particular the length of the delay, the prejudice caused by the delay, and the modest prospects of success of any claim by the plaintiffs for further provision, on balance, these factors weigh against the granting of an extension of time. I will dismiss the proceedings, and hear further from the parties on the question of costs.
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SCHEDULE OF PARTIES
21 August 2018
S CI 2016 03176
S CI 2017 03578
BETWEEN:
DAVID JOHN MAHER First Plaintiff ANTHONY CHARLES MAHER Second Plaintiff - and - THOMAS CELESTINE MAHER First Defendant GERARD HARDS MAHER Second Defendant DAMIEN MAHER Third Defendant ROSEMARY MARGARET JOHNSTON Fourth Defendant CHRISTINE BURDEN Fifth Defendant PATRICIA ANNE MAHER Sixth Defendant JOHN JOSEPH MAHER Seventh Defendant DESMOND FRANCIS MAHER Eighth Defendant MICHAEL JAMES MAHER Ninth Defendant NATHAN KUPERHOLZ (who is sued in his capacity as Administrator and trustee of the estate of the deceased with the will annexed) Tenth Defendant
ANNEXURE A
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