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McCann v Ward & Anor

McCann v Ward & Anor

Case [2010] VSC 452 12 October 2010

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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…

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 McCann v Ward & Anor

Details

AGLC: McCann v Ward & Anor [2010] VSC 452
Case: [2010] VSC 452
Decision Date: 12 OCTOBER 2010

CaseChat Overview and Summary

McCann v Ward & Anor concerned a family provision application filed under Part IV of the Administration and Probate Act 1958 (Vic). The deceased, Mr Ward, left a will that omitted his daughter, Ms McCann. Ms McCann applied for a family provision order 14 months after the will was probated, and the executors opposed the application on the basis of the delay. The court had to determine whether the delay was unreasonable and whether the application should be dismissed on those grounds.

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.

Orders