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Mansfield v Mansfield

Mansfield v Mansfield

Case [2003] WASC 214 6 November 2003

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MANSFIELD & ORS -v- MANSFIELD & ANOR [2003] WASC 214

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 214
Case No:	CIV:1087/2003	Heard:	1 SEPTEMBER 2003
Coram:	BARKER J	Delivered:	6/11/03
No of pages:	17	Judgment Part:	1 of 1
Result:	Application allowed in part
Category:	B
PDF Version

Parties:	KEVIN JOHN MANSFIELD PATRICIA MARIE WEILAND ELISHA JOAN MANSFIELD JAQUELINE MARIE HOLDEN FRANCIS CHARLES ALEXANDER MANSFIELD BARBARA LURLENE MANSFIELD (as Executors of the Will of DORA ALICE MANSFIELD)
Catchwords:	Inheritance (Family and Dependants Provision) Act 1972 (WA) Application for leave to file out of time Claim by grandchildren Whether justice of the case requires that leave be given to file out of time Whether arguable case established on the merits Whether defendants so prejudiced that application should be refused
Legislation:	Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6, s 7(1)(d), s 7(2)(b)
Case References:	Amos v Amos [1966] VR 442 Clayton v Aust (1993) 9 WAR 364 Coates v National Trustees Executors & Agency Co Ltd & Anor (1956) 95 CLR 494 Coffey v Bennett [1961] VR 264 In re Allen (Dec); Allen v Manchester [1922] NZLR 218 In re Marland (Dec) [1957] VR 338 Kitson v Franks [2001] WASCA 134 Re Nassim (Dec) [1984] VR 51 Re Salmon (Dec) [1981] Ch 167 Young v Kestel [2003] WASCA 190 Bath v Perpetual Trustees WA Ltd [2000] WASC 232 Bondelmonte v Blanckensee [1989] WAR 305 Pead v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 99077; 19 February 1999 Re Ruttie (Dec) [1970] 1 WLR 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MANSFIELD & ORS -v- MANSFIELD & ANOR [2003] WASC 214 CORAM : BARKER J HEARD : 1 SEPTEMBER 2003 DELIVERED : 6 NOVEMBER 2003 FILE NO/S : CIV 1087 of 2003 BETWEEN : KEVIN JOHN MANSFIELD

First Plaintiff

PATRICIA MARIE WEILAND

Second Plaintiff

ELISHA JOAN MANSFIELD

Third Plaintiff

JAQUELINE MARIE HOLDEN

Fourth Plaintiff

AND

FRANCIS CHARLES ALEXANDER MANSFIELD

BARBARA LURLENE MANSFIELD (as Executors of the Will of DORA ALICE MANSFIELD)

Defendants

(Page 2)

Catchwords:

Inheritance (Family and Dependants Provision) Act 1972 (WA) - Application for leave to file out of time - Claim by grandchildren - Whether justice of the case requires that leave be given to file out of time - Whether arguable case established on the merits - Whether defendants so prejudiced that application should be refused

Legislation:

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6, s 7(1)(d), s 7(2)(b)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

First Plaintiff : Mr P W Nichols

Second Plaintiff : Mr P W Nichols

Third Plaintiff : Mr P W Nichols

Fourth Plaintiff : Mr P W Nichols

Defendants : Ms C A Searle

Solicitors:

First Plaintiff : Dawson Davies

Second Plaintiff : Dawson Davies

Third Plaintiff : Dawson Davies

Fourth Plaintiff : Dawson Davies

Defendants : Robertson Hayles

Case(s) referred to in judgment(s):

Amos v Amos [1966] VR 442
Clayton v Aust (1993) 9…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mansfield v Mansfield

Details

AGLC: Mansfield v Mansfield [2003] WASC 214
Case: [2003] WASC 214
Decision Date

CaseChat Overview and Summary

The case involves an application by the grandchildren of the deceased, Dora Alice Mansfield, seeking leave to file out of time an application for provision under the Inheritance (Family and Dependants Provision) Act 1972 (WA). The deceased had left her residual estate to her son and his wife, the defendants, and had provided for each of her grandchildren to receive a legacy of $1000. The plaintiffs, the grandchildren, sought leave to file out of time their application for provision from the estate, arguing that they were unaware of their rights under the Act and the six-month limitation period. The defendants opposed the application, arguing that the plaintiffs had been aware of their legacy under the will and that granting the application would cause them significant prejudice.

The key legal issues were whether the plaintiffs had established an arguable case on the merits and whether the defendants would be so prejudiced that the application should be refused. The Court considered the statutory discretion under s 7(2)(b) of the Act, which allows the Court to grant leave to file out of time if the justice of the case requires it. The Court noted that the plaintiffs bore the onus of proving sufficient grounds to deprive the defendants of the benefits of the time limit and that the discretion was to be exercised judicially.

The Court found that, while the plaintiffs had a minimal case, the third plaintiff, Elisha, arguably had a case on the merits due to her age and the fact that she was starting out on adult life. The Court was satisfied that the delay in filing the application was due to the plaintiffs' ignorance of their rights under the Act and the time limit, and that notice was given to the defendants promptly thereafter. The Court concluded that the defendants' prejudice, while significant, was not sufficient to refuse the application for leave to file out of time.

The Court granted leave to the third plaintiff to file out of time but refused the applications of the other plaintiffs who had not established an arguable case on the merits.

Orders