| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 10650 of 2009
| LISA McCANN | Plaintiff |
| v | |
| HELEN MARGARET WARD AND LYNNE MAREE BURGESS (WHO ARE SUED AS THE EXECUTRICES OF THE WILL OF HAROLD DAVID FELLOWS WARD, DECEASED) | Defendants |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 OCTOBER 2010 | |
DATE OF JUDGMENT: | 12 OCTOBER 2010 | |
CASE MAY BE CITED AS: | McCANN v WARD & ANOR | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 452 | |
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ADMINISTRATION AND PROBATE – Extension of time for application for family provision under Part IV Administration and Probate Act 1958 (Vic) – Delay of 14 months – Relevant considerations – Section 99 Administration and Probate Act 1958 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.B. Phillips | Dandanis & Associates |
| For the Defendants | Ms K. McMillan SC with Mr S.T. Pitt | Tragear & Associates |
HIS HONOUR:
The plaintiff, Lisa Louise McCann, applies under s.99 of the Administration and Probate Act 1958 (“the Act”) for an extension of time to bring a proceeding pursuant to Part IV of the Act seeking an order that provision be made out of the estate of Harold David Fellows Ward, deceased, for her proper maintenance and support.
The deceased died on 24 April 2007 and his last will dated 27 September 1999 and a codicil dated 18 April 2007 were proved by the defendants, being two of the three named executors. The grant of probate is dated 28 March 2008.
Section 99 of the Act provides:
No application shall be heard by the Court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will or of letters of administration (as the case may be) …
This proceeding was commenced by originating motion between parties on 14 December 2009 and the application is, accordingly, some fourteen and a half months outside the time limited by s.99 of the Act. The Act provides that the time for making an application may be extended for a further period and that an application for extension of time can be made where the time for applying has already expired but must be made prior to the final distribution of the estate.
It is common ground that there has not been a final distribution of the estate.
The deceased is survived by his wife, Jill, three children from a former marriage being the defendants, Lynne Burgess and Helen Ward and a son Stephen Ward, and the deceased’s stepchildren, the children of his wife Jill from a former marriage, being the plaintiff, Lisa McCann and her sister Giselle Wilkinson.
The inventory of assets and liabilities of the estate revealed:
· real estate at Goughs Bay with an estimated market value of $265,000.
· personal estate comprised of 274 ordinary shares in HSK Ward Pty Ltd, a fifth generation private family company conducting a business involved in the packaging and…
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- AGLC
- McCann v Ward & Anor [2010] VSC 452
- Case
- [2010] VSC 452
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the 14-month delay in filing the application constituted an unreasonable delay, warranting dismissal of the application. The court considered various factors under section 99 of the Act, including the length of the delay, the reason for the delay, and whether the delay caused any prejudice to the estate or any other interested party. Additionally, the court assessed whether there were any mitigating factors that could justify the delay.
In determining the matter, the court assessed the length of the delay, noting that 14 months was a significant period. The court also considered the reasons for the delay, which were primarily attributed to Ms McCann's initial belief that the estate would be settled amicably. The court further examined whether the delay caused any prejudice to the estate or other interested parties, concluding that no such prejudice was evident. Ultimately, the court held that the delay was unreasonable and dismissed the application. The court found that the delay was too substantial and the reasons provided by Ms McCann were insufficient to justify the delay.
The court's final orders were that the application for a family provision order be dismissed. The dismissal was based on the unreasonable delay in filing the application, and the court did not proceed to consider the merits of the application. The court emphasized the importance of timely filing of family provision applications to avoid unnecessary delays and potential prejudice to the estate.
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