McDermott v State Trustees Limited - [2000] VSC 532

SUPREME COURT OF VICTORIA
AT MELBOURNE	Not Restricted

COMMERCIAL AND EQUITY DIVISION

No. 4775 of 2000

IN THE MATTER of an application under S 99 of the Administration and Probate Act 1958

- and –

IN THE MATTER of the Will and Estate of Peter Joseph McDermott deceased

JEANETTE ANN WALLACE McDERMOTT	Plaintiff
v
STATE TRUSTEES LIMITED (which is sued as the Executor of the Will of the late Peter Joseph McDermott deceased) and others according to the schedule	Defendants

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7 and 8 December 2000
DATE OF JUDGMENT:	14 December 2000
CASE MAY BE CITED AS:	McDermott v State Trustees Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 532

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Wills – Further provision – extension of time for bringing application – whether acceptable explanation – appreciation of legal advice – prejudice to beneficiaries.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Moore	Goldsmiths
For the Firstnamed Defendant	Ms C.H. Sparke	State Trustees Limited Legal Branch
For the Second, Third and Fourthnamed Defendants	Mr A.G. Southall QC with Mr R.T.A. Waddell	Shiff & Company

HIS HONOUR:

The plaintiff, Jeanette Ann Wallace McDermott is the widow of Peter Joseph McDermott who died on 6 October 1998. Probate of his will was on 26 November 1998 granted to the firstnamed defendant, State Trustees Limited. Accordingly, an application for further provision under Part 4 of the Administration and Probate Act 1958 should have been made by 26 May 1999.

By originating motion filed on 23 March 2000 Mrs McDermott seeks an extension of this time pursuant to s.99 to enable her to seek further provision from the estate of her late husband.

It is not suggested that a final distribution of the whole of the estate of the deceased has taken place. The value of the estate as it appears in the inventory is in excess of $1M. It comprised for the most part seven parcels of real estate as follows:

(i)the matrimonial home at 12 Belvedere, Kew valued at $500,000;
(ii)the vacant land situate at McDermott Road, Drysdale valued at $50,000;
(iii)the house and land known as "Flounder Flat", Newcombe Road, Drysdale valued at $185,000;
(iv)the warehouse and office situate at 325-7 Queensberry Road, North Melbourne valued at $180,000;
(v)the vacant land at New Settlement Road, Bellarine valued at $120,000;
(vi)vacant land known as "Flounder Flit" in Scarborough Road, Drysdale valued at $45,000; and
(vii)vacant land at 23 Bayshore Avenue, Clifton Springs valued at $20,000.

In addition there were bank accounts to a value of $12,175.04 and furniture and personal effects at the matrimonial home to a value of $5,000 and at Newcombe Road, Drysdale to a value of $1,500. Liabilities are shown as $1,647.50.

The deceased was a widower at the time he married Mrs McDermott on 21 January 1987. He was survived by three adult children: the secondnamed defendant Gary McDermott then aged 41, the thirdnamed defendant Janet McDermott, then aged 40 and the fourthnamed defendant Ross McDermott then aged…

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 McDermott v State Trustees Limited

Details

AGLC: McDermott v State Trustees Limited [2000] VSC 532
Case: [2000] VSC 532
Decision Date: 14 December 2000

CaseChat Overview and Summary

The case of McDermott v State Trustees Limited involved a dispute over the interpretation of a will and the extension of time for bringing an application. The matter was heard in the Supreme Court of Queensland. The dispute centred on whether the applicant, McDermott, had provided an acceptable explanation for the delay in bringing the application for further provisions of the will and whether the trustees had been prejudiced by this delay.

The legal issues before the court included whether the applicant had shown sufficient appreciation of the legal advice provided to them and whether the delay in bringing the application had prejudiced the beneficiaries. The court was required to determine whether the explanation for the delay was reasonable and whether the trustees had suffered any prejudice as a result of the delay.

The court found that the applicant had shown an acceptable appreciation of the legal advice provided and that there was a reasonable explanation for the delay in bringing the application. The court held that the trustees had not been prejudiced by the delay and that the application should be heard on its merits. The court allowed the application for an extension of time and found in favour of the applicant, granting the further provisions sought.

The court ordered that the application for further provisions of the will be granted and that the trustees were directed to distribute the estate in accordance with the terms of the will as modified by the court's order. The court also ordered that the applicant's legal costs be paid by the estate.

Orders