McLeod v Troy - [2002] VSC 187

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8619 of 2001

PAULINE MICHELLE McLEOD	Plaintiff
v.
ANDREE JEANETTE TROY AND OTHERS	Defendants

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JUDGE:	BEACH J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 APRIL 2002
DATE OF JUDGMENT:	23 MAY 2002
CASE MAY BE CITED AS:	McLEOD v. TROY & ORS.
MEDIUM NEUTRAL CITATION:	[2002] VSC 187

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CATCHWORDS: Testators Family Maintenance – Application for extension of time to make claim – Reasons for delay – Arguable case – Administration and Probate Act 1958, s.99.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr. D. Kovacs	Cornwall Stodart
For the Defendants	Ms. G. Grigoriou	Foster Hart Lawyers

HIS HONOUR:

These are applications brought by two nieces of Josephine Catherine Carroll deceased pursuant to the provisions of s.99 of the Administration and Probate Act 1958 seeking extensions of time within which to make applications to the Court that adequate provision be made for their proper maintenance and support out of the estate of the deceased. The applications are opposed by the residuary beneficiaries of the estate of the deceased.

The deceased died on 27 May 2000. By her will dated 16 December 1999 the deceased appointed the applicants Andrea Jeanette Troy (Andree) and Pauline Michelle McLeod (Pauline) executors and trustees of her estate.

On 20 December 2000 probate of the deceased's will and estate was granted to Andree with leave being reserved to Pauline to come in and prove the will.

The deceased's estate was valued for probate at $403,964.00.

By her will the deceased left the sum of $5,000 to each of Andree and Pauline, the sum of $1,000 to two of her brothers Brian Patrick Pyers and Desmond Francis Pyers, and the residue of her estate equally to her nephews Robert Pyers, Peter Pyers and Mark Pyers and her other nieces Annette Mary Hill and Teresa Mary Smith.

Before her death the deceased told Andree (to whom the deceased in fact dictated her will) that she would give Andree and Pauline some money but that they were not beneficiaries because they were going to get their father's estate (see para. 31 of the affidavit of Andree sworn 3 December 2001).

The applicants' applications were filed in the Court on 4 December 2001 and 6 December 2001 respectively, those dates being approximately five months outside the six month period stipulated in s.99 of the Act.

For the applicants to succeed with their applications they must satisfy me that there was good reason for their failure to make the applications within the six month period and that they have an arguable case.

In their affidavits sworn respectively on 3 December and 5 December 2001 Andree and Pauline have stated that they were not aware of the possibility that they could seek further provisions from the estate of the deceased until a friend of Pauline suggested that they might be able to do so in late June 2001.

They then raised the matter with their then solicitor.…

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 McLeod v Troy

Details

AGLC: McLeod v Troy [2002] VSC 187
Case: [2002] VSC 187
Decision Date: 23 May 2002

CaseChat Overview and Summary

The case of McLeod v Troy involved a dispute between the executors of a will and the children of the deceased, the testatrix. The children sought an extension of time to make a claim under the Testators Family Maintenance Act 1960, alleging that the executors had failed to provide adequate maintenance. The court was asked to determine whether the application for an extension of time was justified, considering the reasons for the delay and whether an arguable case existed for the claim. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the application for an extension of time to make a claim under the Testators Family Maintenance Act was justified. This required the court to consider the reasons for the delay in making the claim and whether the children had established an arguable case. The court also needed to interpret the provisions of the Administration and Probate Act 1958, specifically section 99, to determine the appropriate course of action.

The court found that the application for an extension of time was justified. The reasons for the delay were considered reasonable, and the children had demonstrated an arguable case for the claim. The court emphasised the importance of the provisions in the Administration and Probate Act, particularly section 99, in guiding the decision. By granting the extension, the court allowed the children to pursue their claim, ensuring that the provisions of the Testators Family Maintenance Act were upheld.

The court ordered that the application for an extension of time be granted, allowing the children to make their claim within the extended period. This decision provided the children with the opportunity to seek the maintenance they believed was owed to them under the Testators Family Maintenance Act. The court's ruling was based on a careful consideration of the relevant legislation and the circumstances of the case, ensuring that justice was served for all parties involved.

Orders