McGrath v Courtney Ross McGrath (In his capacity as Administrator of the Estate of Thelma Olive McGrath)
[2003] WASC 36
McGRATH -v- COURTNEY ROSS McGRATH (In his capacity as Administrator of the Estate of THELMA OLIVE McGRATH) & ANOR [2003] WASC 36
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 36 | |
| Case No: | CIV:2387/2002 | 10 FEBRUARY 2003 | |
| Coram: | ACTING MASTER CHAPMAN | 14/03/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted | ||
| B | |||
| PDF Version |
| Parties: | LEE ROBIN RUSSELL McGRATH COURTNEY ROSS McGRATH (In his capacity as Administrator of the Estate of THELMA OLIVE McGRATH) COURTNEY ROSS McGRATH |
Catchwords: | Inheritance (Family & Dependants Provision) Act Application under s 7(2) for extention of time by adult daughter Leave granted |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972, s 7 |
Case References: | Clayton v Aust (1993) 9 WAR 364 Re Salmon [1981] Ch 170 Bondelmonte v Blankensee [1989] WAR 305 Burkala v The Public Trustee & Ors, unreported; SCt of WA; Library No 1034; 19 March 1993 Clarke v The Public Trustee as Executor of the Estate of Henry Frederick Wynne (Dec) & Ors [1999] WASC 172 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Fisher & Anor v Fisher & Ors, unreported; SCt of WA; Library No 97094; 1 October 1997 Girando v Girando & Ors, unreported; SCt of WA; Library No 960485; 3 September 1996 Grigariou v Nitsos [1999] WASCA 42 Maclennan v Perpetual Trustees WA Ltd [1999] WASC 261 Re Dennis [1981] 2 All ER 140 Webster v Lampard (1993) 177 CLR 598 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
COURTNEY ROSS McGRATH (In his capacity as Administrator of the Estate of THELMA OLIVE McGRATH)
First Defendant
COURTNEY ROSS McGRATH
Second Defendant
Catchwords:
Inheritance (Family & Dependants Provision) Act - Application under s 7(2) for extention of time by adult daughter - Leave granted
Legislation:
Inheritance (Family and Dependants Provision) Act 1972, s 7
(Page 2)
Result:
Leave granted
Category: B
Representation:
Counsel:
Plaintiff : Ms P J Keeley
First Defendant : Mr R W Spiegl
Second Defendant : Mr R W Spiegl
Solicitors:
Plaintiff : Clairs Keeley
First Defendant : Matthew Glossop & Associates
Second Defendant : Matthew Glossop & Associates
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Re Salmon [1981] Ch 170
Case(s) also cited:
Bondelmonte v Blankensee [1989] WAR 305
Burkala v The Public Trustee & Ors, unreported; SCt of WA; Library No 1034; 19 March 1993
Clarke v The Public Trustee as Executor of the Estate of Henry Frederick Wynne (Dec) & Ors [1999] WASC 172
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Fisher & Anor v Fisher & Ors, unreported; SCt of WA; Library No 97094; 1 October 1997
Girando v Girando & Ors, unreported; SCt of WA; Library No 960485; 3 September 1996
Grigariou v Nitsos [1999] WASCA 42
(Page 3)
Maclennan v Perpetual Trustees WA Ltd [1999] WASC 261
Re Dennis [1981] 2 All ER 140
Webster v Lampard (1993) 177 CLR 598
(Page 4)
- ACTING MASTER CHAPMAN:
The application
1 The plaintiff by way of application filed on 7 October 2002 seeks an extension of time in which to bring an application pursuant to the Inheritance (Family and Dependants Provision) Act 1972 ("the Act").
The deceased
2 The deceased is the mother of the plaintiff and the second defendant. The deceased had a further daughter who is not a party to this matter. The deceased died on 7 October 1999.
The estate
3 Surprisingly, I was not told what the value of the estate is. In an application such as this, I would have thought that that was of some importance. Counsel for both parties agreed that a copy of the statement filed in accordance with the Non-Contentious Probate Rules 1967 could be handed up which shows the value of the estate as at the date of death of the deceased amounted to $382,892.86 (see Annexure "A").
4 I am told that the household and other personal items have been delivered at the instruction of the beneficiaries under the will and the property at 19 Andrew Street, Scarborough, was sold in February 2002 for $455,000 and the proceeds have been distributed in accordance with the instructions of the second defendant.
5 I am not told if or when the other assets of the estate have been distributed, which is, again, surprising.
Grant of Letters of Administration
6 The first defendant was granted Letters of Administration with the will annexed on 19 September 2000. Any application under the Act should have been made by 18 March 2001. The application is, therefore, some one and a half years late.
The plaintiff
7 The plaintiff is a 59-year-old woman and on her evidence owns (1) a house at 27 Urawa Road, Duncraig, $170,000; (2) a car, $8000; (3)
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- personal superannuation, $31,000; (4) employer funded superannuation $8000; total of $217,000. I am not told how she has arrived at any of the values. The value of the real estate looks somewhat conservative. The second defendant deposes to the fact that he has been informed by a real estate agent that the property would be worth between $200,000 and $210,000. If that were the case, the assets would total at least $247,000. The assets listed do not seem to reflect what assets were received from the estate.
8 She is currently employed as a receptionist and on her evidence she receives approximately $430 per week. Again, there is no independent evidence to support this. I am not told what her weekly expenses are. She states she may not be able to work much longer, but proffers no medical evidence to support this.
9 There are some significant matters contained in par 1 under the heading "Arguable Case" of the written submissions of the plaintiff which are not supported by the evidence. This is a matter of considerable concern.
Second defendant
10 The second defendant is 56 years of age. He said he was forced to retire from the Merchant Navy in 1993, due to a disability and is currently in receipt of a disability pension, although he does not give any evidence as to the amount of that pension. As at 10 January 2003, he says he had $382,000 in a superannuation fund with Colonial First State. This sum is apparently what remains of what he has received from the estate. In addition, the second defendant owns a vehicle, but I am not told what it is worth, nor am I told what his weekly expenses are.
The principles
11 In order for the plaintiff to succeed she has to establish that the justice of the case requires that she be given the leave sought. The Act gives no guidance regarding the principles upon which the jurisdiction to extend time is to be exercised, however, guidelines have been given. In Clayton v Aust (1993) 9 WAR 364 at 366 - 367 Malcolm CJ cited with approval the decision of McGarry VC in Re Salmon [1981] Ch 170 at 174 - 175, which may be summarised as follows:
(1) That the discretion of the Court is unfettered, with no restrictions or requirements laid down by the Act, to be
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- exercised judicially and in accordance with what is just and proper.
- (2) The onus lies on the plaintiff to establish sufficient grounds for being just and proper for the Court to exercise its statutory discretion to extent time. This includes the notion that the plaintiff must be shown to have an arguable case.
(3) The whole of the circumstances of the case, including the reasons for the delay, and the promptitude with which the application is made are to be considered.
(4) Whether negotiations had been commenced within the time limit.
(5) Whether the estate has been distributed before the claim under the Act has been made or notified. This includes a consideration of whether the beneficiaries have changed their position in reliance on their share of the estate.
(6) Whether refusal to extend time would leave the plaintiff without redress against anybody.
Arguable case
12 The onus lies on the plaintiff to establish sufficient grounds for it being just and proper for the Court to exercise its statutory decision to extend time. In this case, the evidence the plaintiff gives as to her relationship with the deceased is at odds with the evidence of the second defendant and with what the deceased said in her will. The assets of the plaintiff are not insignificant. She provides no independent evidence of their value, but on what is before me I am of the view that they would be valued at at least $247,000.
13 She is currently working and earning approximately $430 a week. She deposes as to her medical condition, but again provides no independent evidence to support her allegations. The second defendant, on the other hand, retired from the Merchant Navy in 1993 due to disability and is currently on a disability pension. As at 10 January 2003, he had $382,000 in a superannuation fund and he owns a vehicle, the value of which I have not been told. The superannuation fund is what remains from the benefit he received from the estate of the deceased.
14 The second defendant has already had to cease work and is on a disability pension. He currently has assets which exceed those of the
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- plaintiff by some $140,000. Although I am far from persuaded that the plaintiff has more than a slim chance of success, I am satisfied the plaintiff has an arguable case.
Reasons for delay
15 The plaintiff claims that the second defendant told her how unfair he considered the will to be and he would ensure she received at least one-third of the proceeds of the estate and that her sister could have one-third of the estate if she so wished. The second defendant denies ever having said this. It is difficult on the evidence before me to determine where the truth lies.
16 The plaintiff claims she waited for her brother to keep her informed as to the progress of the estate. She says in April 2002, she drove past the home where her mother lived and saw a "Sold" sticker on an auction sign out the front. She says she rang her solicitor on 18 April 2002 and for the first time she was told of the six-month period. She says the delay up until that time was due to the fact that her brother had made assurances to her.
17 Even if her evidence were accepted, there is no satisfactory explanation for the almost six months' delay from the time the plaintiff knew of the limitation period and the time the application was lodged. This is not an insignificant period which, in my view, requires an explanation.
Negotiation
18 No negotiations had commenced within the limitation period.
Distribution of the Estate
19 As I understand the evidence, the household and other personal items which form part of the estate have been distributed some time towards the end of 2000 and the house property was transferred to the second defendant at the beginning of 2002. As previously said, I am not told when or if the remainder of the estate has been distributed, nor to whom.
20 The second defendant deposes to the fact that he has invested the balance of the funds he received from the estate in a superannuation fund. There is some suggestion that he might not be able to access those funds until he turns 65, but I think that is far from clear.
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Redress
21 To refuse to grant leave would, on the face of it, leave the plaintiff without redress against anybody.
Conclusion
22 Having considered all of the relevant factors, I am satisfied that the justice of the case requires that the plaintiff be given leave to file out of time.
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