Legal Research
Cases
Menzies v Marriott

Menzies v Marriott

Case [2009] VSC 345 19 August 2009

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5232 of 2009

IN THE MATTER OF an application pursuant to Part IV of the
Administration and Probate Act 1958

IN THE MATTER OF the will and estate of VALDA MAY MARRIOTT (deceased)

ROBERT WILLIAM MENZIES	Plaintiff
and
MARY ELIZABETH MARRIOTT (who is sued as executrix of the will and estate of Valda May Marriott)	Defendant

---

JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 August 2009
DATE OF JUDGMENT:	19 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSC 345

---

PROBATE – Application for extension of time to bring application under Part IV of the Administration and Probate Act 1958 – Delay of approximately 2 years 4 months – Ignorance of rights – Arguable case – Whether estate fully distributed – Effect of applicant’s bankruptcy –Application granted – Administration and Probate Act 1958, ss 91(4) and 99

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G.L. Rice	Galbally & O’Bryan
For the Defendant	Ms U. Stanisich	Kennedy, Solicitors

HER HONOUR:

The application

The deceased, Valda Marriott, died on 24 December 2005. The plaintiff is one of the deceased’s sons. The plaintiff seeks an order under s 99 of the Administration and Probate Act 1958 for an extension of the time for making an application under Part IV of the Act for provision in respect of the deceased’s estate.

By her last will, made on 23 October 2003, the deceased appointed her youngest child, the defendant, as executrix, and left her entire estate to the defendant.

Probate of the will was granted to the defendant on 18 May 2006. Therefore, under s 99 of the Act, the time for making a Part IV application expired six months later, in November 2006.

The originating motion in this proceeding was filed on 23 March 2009. It seeks an extension of time under s 99, as well as substantive relief under Part IV of the Act.

In support of the extension application, the plaintiff has sworn two affidavits, dated 24 March and 5 August 2009, respectively. He also relies upon the affidavits of his partner, Ms Ann Gleeson, sworn 17 April 2009, his general practitioner, Dr Anil Lal, sworn 19 June 2009, and his solicitor, Mr Andrew O’Bryan, sworn 5 August 2009. The defendant has sworn an affidavit dated 31 July 2009, and also relies upon the affidavit of her father, Ernest Marriott, sworn on the same day.

An applicant must make out a case to justify the granting of the indulgence sought, namely the extension of time. The court’s discretion in this regard is broad and unfettered by any “rigid rules”[1], but must be exercised judicially.
[1]Ansett v Moss [2007] VSCA 161 at [6] per Buchanan JA.

Whether the estate has been finally distributed

Section 99 of the Act permits the court to extend the time for bringing an application for further provision, but no extension application can be made after the final…

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 Menzies v Marriott

Details

AGLC: Menzies v Marriott [2009] VSC 345
Case: [2009] VSC 345
Decision Date: 19 August 2009

CaseChat Overview and Summary

The case of Menzies v Marriott involved an application by the applicant, Menzies, for an extension of time to bring an application under Part IV of the Administration and Probate Act 1958. The dispute centred on Menzies' desire to challenge the distribution of an estate, with the delay in bringing the application attributed to Menzies' ignorance of their rights. The court was tasked with determining whether the delay was justifiable and if Menzies had an arguable case to warrant an extension. Additionally, the court had to consider the impact of Menzies' bankruptcy on their ability to distribute the estate.

The central legal issues before the court included whether Menzies had a reasonable excuse for the delay in bringing the application, whether Menzies had established an arguable case, and the implications of Menzies' bankruptcy on the proceedings. The court examined the statutory provisions under sections 91(4) and 99 of the Administration and Probate Act 1958 to assess Menzies' application for an extension of time. The court was required to balance Menzies' ignorance and the arguable merit of the case against the statutory timeframes and the effect of Menzies' bankruptcy.

In granting the application, the court found that Menzies had demonstrated sufficient ignorance of their rights to justify the delay. The court held that Menzies had established an arguable case that would likely succeed, thereby warranting an extension of time. The court also considered that Menzies' bankruptcy did not preclude them from seeking the extension, as the application was not dependent on the distribution of the estate. The court's decision was based on the specific circumstances presented, emphasising the importance of timely action in probate matters while also recognising the need for flexibility in cases of genuine ignorance.

The final orders of the court included granting Menzies' application for an extension of time to bring their application under Part IV of the Administration and Probate Act 1958. The court ruled that Menzies had provided a reasonable excuse for the delay and that an arguable case had been made. The court also noted that Menzies' bankruptcy did not impede the application, allowing Menzies to proceed with their challenge to the estate distribution. This decision underscores the court's willingness to consider applications for extensions of time in cases of genuine ignorance, while also highlighting the importance of timely action in probate matters.

Orders