Newman v Meesha Sarah Watson as executor of the estate of Donald Giles
[2024] WASC 49
•29 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NEWMAN -v- MEESHA SARAH WATSON as executor of the estate of DONALD GILES [2024] WASC 49
CORAM: MASTER RUSSELL
HEARD: 22 FEBRUARY 2024
DELIVERED : 29 FEBRUARY 2024
FILE NO/S: CIV 1320 of 2023
BETWEEN: ANDREW CRAIG NEWMAN
Applicant
AND
MEESHA SARAH WATSON as executor of the estate of DONALD GILES
First Respondent
WAYNE TERRY WATSON
Second Respondent
CLARE ROSE WATSON
Third Respondent
MEESHA SARAH WATSON
Fourth Respondent
Catchwords:
Family Provision Act 1972 (WA) - Application for extension of time to bring application for provision - Turns on own facts
Legislation:
Family Provision Act 1972 (WA), s 7(1)(d), s 7(2), s 7(3)
Result:
Application granted
Category: B
Representation:
Counsel:
| Applicant | : | A T Edwards |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
Solicitors:
| Applicant | : | Birman & Ride |
| First Respondent | : | GV Lawyers |
| Second Respondent | : | Jackson McDonald |
| Third Respondent | : | Taylor Smart |
| Fourth Respondent | : | GV Lawyers |
Case(s) referred to in decision(s):
Clayton v Aust (1993) 9 WAR 364
Drake v Bradshaw [2017] WASC 228
Hyde v Palfrey [2017] WASC 65
Re Salmon (dec'd) [1981] Ch 167
Wheatley v Wheatley [2018] WASCA 34
MASTER RUSSELL:
Introduction
By originating summons filed on 30 March 2023, the applicant, Andrew Craig Newman, applies for an extension of time to bring an application under s 7(1)(d) of the Family Provision Act 1972 (WA) (Act) for provision out of the estate of his late grandfather, Donald Giles (Estate).
The application is made pursuant to s 7(2)(b) of the Act, and is supported by:
(1)an affidavit of the applicant sworn on 24 April 2023 (Newman Affidavit);
(2)an affidavit of Angus Thomas Edwards sworn on 18 April 2023 (Edwards Affidavit); and
(3)a written outline of submissions filed on 20 June 2023.
There are four respondents to the originating process. They all share the same surname. As such, and with no disrespect, I will refer to them in these reasons by their first names. They are:
(1)the applicant's sister, Meesha Sarah Watson, in her capacity as executor of the Estate;
(2)Wayne Terry Watson, Meesha's son;
(3)Clare Rose Watson, Meesha's daughter; and
(4)Meesha in her own capacity.
The second to fourth respondents are beneficiaries of the Estate, and were joined as parties to the proceeding by order made on 4 August 2023. They have each subsequently indicated that they neither consent to nor oppose the application, and their appearance at the special appointment was excused.
Donald Giles (Deceased) died on 4 June 2022.
The applicant, who I will also refer to by his first name, Andrew, with no disrespect, is the grandson of the Deceased and his late wife, Betty Clare Giles, who died on 9 May 2020.
Probate of the Deceased's last will and testament dated 12 July 2019 (Will) was granted to Meesha, as the executor appointed under the Will, by this court on 31 August 2022 (Grant).
The time for bringing an application for provision under the Act without leave of the Court expired on 28 February 2023, being six months from the date of the Grant.[1] This application was brought on 30 March 2023, 30 days later.
[1] Family Provision Act 1972 (WA) s 7(2)(a).
For the reasons that follow, I am satisfied that the justice of the case requires that Andrew be given leave to file an application under s 7(1)(d) of the Act out of time. The time within which he is to bring an application is extended to 21 days from the date of the order to be made to that effect.
Applicable legal principles
Sections 7(2) and (3) of the Act provide:
(2)No application under subsection (1) shall be heard by the Court unless —
(a)the application is made within 6 months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b)the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
(3)A motion for leave to file out of time may be made at any time notwithstanding that the period specified in subsection (2)(a) has expired.
The Court of Appeal summarised the principles to be applied in determining an application to extend time under s 7(2)(b) of the Act in Wheatley v Wheatley,[2] which I refer to, respectfully adopt and apply in determining the application.
[2] Wheatley v Wheatley [2018] WASCA 34 [54] ‑ [63] (Martin CJ, Buss P & Murphy JA).
As observed in Wheatley,[3] the Full Court in Clayton v Aust,[4] set out non‑exhaustive guidelines to be applied in considering whether leave ought to be granted in this context.[5] The relevant principles may be summarised as follows:
(1)The discretion of the court is unfettered but must be exercised judicially and in accordance with what is just and proper.
(2)The time limit in the Act is a substantive provision and not a mere procedural time limit.
(3)The onus is on the applicant to establish sufficient grounds for taking the case out of the general rule and depriving those who are protected by it of its benefits. In considering whether the applicant has discharged this onus, a relevant question is whether the applicant has an arguable case on the merits.[6]
(4)It is material when considering the application how promptly, and in what circumstances, the applicant has brought an application for an extension, including the length of, and reason for, the delay.
(5)It is relevant to consider whether there have been any negotiations with the respondents during the six‑month time limit.
(6)Also relevant is whether or not the estate has been distributed before the claim was made or notified.
(7)Whether a refusal to extend time would leave the applicant without redress against anyone is a further relevant consideration.
[3] Wheatley [56].
[4] Clayton v Aust (1993) 9 WAR 364, 366 - 367, referring to Re Salmon (dec'd) [1981] Ch 167, 175 ‑ 177 (McGarry VC).
[5] The application in that case was made under s 7(2)(b) of the Inheritance (Family and Dependants Provision) Act 1972 (WA), the predecessor to the Act and in identical terms to the same section of the Act.
[6] A detailed examination of the applicant's claim is not required. See Wheatley [58]; Clayton [370].
Factual background
The following facts, which I accept for the purpose of this application, are derived from the affidavits filed in support which are not contested.
I will refer to the Deceased and his late wife, Betty Clare Giles, together as Andrew's grandparents. They had two children:
(1)Kerry Reid, born in about 1957; and
(2)Lee Quinn, Andrew and Meesha's mother, who was born on 2 February 1956.
Kerry Reid does not have any children. Lee Quinn has two children, Meesha and Andrew. Meesha was born on 7 January 1975 and is now 49 years old. Andrew was born on 18 January 1976 and is now 48 years old.
Andrew does not have any children. Meesha has two children, the second and third respondents, Wayne and Clare. There is no evidence before me as to their ages, but they are both adults.
From at least 1985, Andrew's grandparents owned and operated a number of farms. In 1985, they bought a 77 acre block of land in Forrestdale from which they ran a venison farm until about 2004.
In 2004, they sold most of the land in Forrestdale to developers for about $9.6 million. The land was subdivided and comprises a large part of what is now the modern residential suburb of Piara Waters. They retained parts of the land, including a property which became known as Exeter Court, where they lived.
Andrew deposes to his grandparents being very generous to their family and providing himself, his mother and Meesha with 'a lot of financial and emotional support' over the years. He says that he had a very close relationship with his grandparents, particularly his grandfather, who was a father figure in his life.
Andrew graduated from high school in 1993. He lived with his mother and stepfather until about 1998. Between about 1998 and 2001, Andrew lived with his grandparents.
In about 2001, Andrew moved to Margaret River to complete a TAFE course and start an apprenticeship in commercial cooking. He stayed in Margaret River after completing his TAFE course, obtaining a certificate III in commercial cookery and his apprenticeship. He stayed in regular contact with his grandparents and saw them when he travelled to Perth every two months or so.
Andrew married in 2006. At about that time, his grandparents funded his purchase of a property at Carignane Court in Margaret River and also a property Meesha purchased at 36 Gutteridge Road in Banjup.
In about 2009 or 2010, Andrew and his wife moved back to Perth. Andrew's grandparents allowed them to move into a property they owned at 52 Gutteridge Road in Banjup, where Andrew has lived since. Andrew and his wife separated in 2016 or 2017 and subsequently divorced.
The Gutteridge Road property where Andrew lives is a 10 minute drive from where his grandparents lived at Exeter Court. Andrew saw them regularly and helped them with gardening, the general upkeep of Exeter Court and also with maintenance of their other properties from time to time.
On 26 December 2013, Andrew suffered a stroke. As a result of the stroke, he lost about 40% of his right visual field in both eyes, suffers from memory loss and chronic fatigue and can no longer work as a professional chef. His conditions have not improved over the years.
He has struggled with returning to work despite engaging in a return‑to‑work program for a period of about 12 months in 2015. Aside from that program, he has not engaged in paid work since his stroke.
After suffering the stroke, Andrew's grandparents assisted him financially and he has lived rent free at 52 Gutteridge Road.
Between 2016 and 2018, Andrew worked on a 110 acre property owned by his grandparents at Kiely Lane in Hopeland near Baldivis, with a view to him managing the property, attending to its maintenance and developing it into a farm. The work he undertook included cleaning up the dam, installing about 1.8 kilometres of fencing, removing rubbish from and generally cleaning up the property, creating and maintaining a firebreak, removing non‑native plants from bushland areas, managing drainage lines for the property and testing fertiliser formulations for cropping of the property.
He did most of the work himself, with some help from friends and tradespeople. He was not paid for the work that he did and estimates that he spent about $130,000 maintaining and preparing the property, and about $200,000 purchasing farming equipment, including a tractor and a shed to farm the land, which was largely funded from his sale of Carignane Court.
Andrew deposes to discussions between him and his grandparents in 2016 and 2017 concerning the transfer of the Kiely Lane and 52 Gutteridge Road properties to him.
In about 2017 or 2018, Andrew's relationship with his grandparents became strained for the reasons referred to in his affidavit. Andrew was asked to stop working on Kiely Lane, Exeter Court and his grandparents' other properties, which he did. He was not reimbursed for any of the work he had done. Andrew sold the farming equipment and shed he had purchased for Kiely Lane. He says he made a significant loss on those sales.
Andrew sets out in his affidavit the work he has done on the property he lives in at 52 Gutteridge Road and other properties owned by his grandparents by maintaining, renovating and improving them.
He has lived at the Gutteridge Road property since 2009 or 2010. He says he feels very comfortable there and, amongst other things, is daunted by the thought of moving, as his memory issues make it difficult to deal with changes to his living environment.
Andrew's financial position
As to Andrew's financial position, at the time of swearing his affidavit, his annual income from salary continuance insurance was $47,859 and his annual expenses $37,000, leaving a net annual income of $10,859. His total net assets, including savings from a total and permanent disability (TPD) payment of $180,000 he received in March 2023, were $192,000. He spent approximately $50,000 of his TPD payment to pay debts, living and other expenses and legal fees.
There is no evidence before me as to any change to this position as at the date of the hearing of the application.
Andrew continues to live at the 52 Gutteridge Road property. He does not pay any rent for his accommodation. He continues to maintain it. He states that if he was required to rent a similar property in the area, he estimates he would have to pay $1,500 per week ($78,000 per year). He also states that properties in the area very rarely come up for rent.
Andrew's only income is from salary continuance payments he receives under an insurance policy and will continue until he is aged 65 years. He does not consider he will be able to return to work in the foreseeable future. He has had to cancel his health insurance because he could not afford to pay for it. This is of concern to him because of his ongoing medical needs.
After his stroke, Andrew drew down on his superannuation to pay for living expenses and, as a result, has no superannuation.
There is no evidence before me as to what Andrew's financial position was at the time of the Deceased's death on 4 June 2022. He merely states it was worse then, as he had not, at that time, received the TPD payment and he had significant debts. He says he was struggling to cover his basic living expenses.
He deposes that if he were in a stronger financial position, he would obtain private health insurance, secure his living arrangements, save money for his future and contingencies and invest money into superannuation, amongst other matters.
The respondents' financial positions
There is limited information about the respondents' financial positions. Andrew deposes that he believes from Landgate records that:
(1)Meesha, in her capacity as either the trustee of the Giles Family Trust, or executor of their grandparents' estates, is the registered proprietor of five properties in Western Australia;
(2)Meesha, in her personal capacity, is the registered proprietor of:
(a)36 Gutteridge Road, Banjup, which was purchased for $750,000 in 2005; and
(b)27 Lombe Gardens, Atwell, which was purchased for $458,000 in 2006.
(3)Clare is the registered proprietor of 26 Gutteridge Road, Banjup, which was purchased for $800,000 in 2019.
Andrew is otherwise unaware of the financial positions of Meesha, Clare and Wayne.
Should leave be granted?
The application and reasons for delay
The time for bringing an application for provision under the Act without leave of the Court expired on 28 February 2023, being six months from the date of the Grant.[7] The application was brought on 30 March 2023, 30 days later.
[7] Family Provision Act 1972 (WA) s 7(2)(a).
This is not a significant delay in the circumstances, which I find are as follows.
Andrew was informed by Meesha's former lawyers, Success Legal, in about October 2002, that the Deceased had a will and that a grant of probate had been issued to Meesha. He asked for a copy of the Will, but it was not provided to him.[8]
[8] Newman Affidavit, par 88.
In late October 2022, Andrew consulted a lawyer who advised him about the ability to bring a claim under the Act. At that time, Andrew was struggling to meet his basic living expenses and was unable to pay the legal fees for bringing a claim.[9]
[9] Newman Affidavit, pars 73 - 83; attachment ACN9.
He suffered a stroke in December 2013. Following the stroke, he suffers from issues with memory loss, chronic fatigue and visual impairment. Other than engaging unsuccessfully in a return‑to‑work program for about 12 months in 2015, he has been unable to return to paid work.[10] This has affected his ability to generate an income.
[10] Newman Affidavit, pars 42 - 44.
He sought payment under a total and permanent disability insurance policy he had so that he could meet the legal fees to bring the claim, but did not obtain the TPD payment until March 2023.[11]
[11] Newman Affidavit, par 90.
He says the issues with his memory loss and chronic fatigue made it difficult for him to move quickly and his fatigue was made worse by the stress of the situation.[12]
[12] Newman Affidavit, par 91.
He consulted his current lawyers and obtained preliminary advice on 29 March 2023, who gave notice to Meesha's lawyers that they had been instructed by Andrew to apply for leave to bring a claim under the Act.[13] The application was then filed the following day, 30 March 2023, being 30 days after the time to bring a claim expired under the Act.
[13] Newman Affidavit, pars 92 - 93; attachments ACN10 and ACN11.
The short delay is explained by Andrew's personal circumstances and the financial constraints and other difficulties he faced at the time. These are matters that weigh in favour of a grant of leave.[14]
Negotiations and notice of the claim
[14] Drake v Bradshaw [2017] WASC 228 [13].
There is no evidence of any negotiations or notice being given of the applicant's claim during the six‑month period. This is understandable given the applicant's personal circumstances.
The value of the Estate and status of distribution
There is no current evidence before me as to the precise value of the Estate. However, the statement of assets and liabilities attached to the Edwards Affidavit indicates that, as at the time of the application, the net value of the assets was approximately $5.5 million.
Andrew deposes in the Newman Affidavit that there are further properties that form part of the Estate not included in the statement of assets and liabilities.
On the available evidence, I find that the Estate's value is significant, estimated to be at least about $5.5 million less any payments that have since been made to meet expenses.
There is no suggestion that the Estate has been distributed, in whole or in part. The real estate remains registered in the name of the Deceased.[15]
[15] Newman Affidavit, par 18.
These are matters that weigh in favour of granting an extension of time.
Does the applicant have an arguable case?
On an application of this nature, the applicant need only show an arguable case that is 'fit to go to trial'.[16] No detailed examination of the applicant's case is required.[17] The court should proceed on the basis that the applicant's evidence will be accepted at trial.[18]
[16] Clayton (368).
[17] Hyde v Palfrey [2017] WASC 65 [2(h)].
[18] Clayton (373); Wheatley [58]; Drake [12]; Hyde [10] - [16].
I make no findings at this stage as to the strength of the claim, but I am satisfied Andrew has an arguable case on the merits.
He is a grandchild of the Deceased eligible to bring a claim under s 7(1)(d)(i) of the Act. It is not entirely clear when Andrew stopped paying rent, but it was sometime between his stroke in 2013 and him ceasing work in 2015. On any view he has received financial support from the Deceased for a number of years, and was being maintained in part by the Deceased immediately before the Deceased's death through the provision of free accommodation at 52 Gutteridge Road.[19]
[19] Newman Affidavit, pars 4 - 8, 37 - 39, 45, 54 - 55, 74.
By the Will, the Deceased made the following specific bequests:
(1)The property known as Exeter Court and another property at Piara Waters to Meesha.[20]
(2)The property Andrew lives in at 52 Gutteridge Road, Banjup to Wayne.[21]
(3)Payment of $500,000 free from duties to Andrew, on condition that he vacated 52 Gutteridge Road within six months from the date of the Deceased's death and leaving it in good condition.[22]
[20] Newman Affidavit, attachment ACN2, page 17, cl 10(1).
[21] Newman Affidavit, attachment ACN2, page 17, cl 10(2).
[22] Newman Affidavit, attachment ACN2, page 17, cl 10(3).
No further provision is made for Andrew in the Will.
Andrew still lives in the property at 52 Gutteridge Road. He has not fulfilled the condition of the specific bequest to him and, at this time, he does not have any legal entitlement to a distribution from the Estate.
Andrew has limited financial means, with minimal income and assets. He has a health condition which prevents him from returning to work and which will likely result in increased medical and other expenses during his lifetime.[23] At the time of the Deceased's death, he was worse off financially than at the time of the application, as he did not have the benefit of his TPD payment.[24]
[23] Newman Affidavit, pars 72 - 83; attachment ACN9.
[24] Newman Affidavit, par 83.
He assisted his grandparents from about 2009 onwards and made improvements to properties in the Estate.[25]
[25] Newman Affidavit, pars 36, 39, 50 - 51, 65 - 66, 69 - 71.
He had a close relationship with the Deceased for most of his life.[26]
Would refusal to extend time leave the applicant without redress?
[26] Newman Affidavit, pars 24 - 27, 29, 32 - 39, 45 - 49, 54 - 55.
It seems likely that a refusal to extend time within which to make a claim would leave Andrew without redress.
Conclusion and orders
In all of the circumstances, I find that the justice of the case requires that Andrew be given leave to file an application under s 7(1)(d) of the Act out of time.
Given his personal circumstances and the time required for his lawyers to finalise instructions, the time within which he is to bring an application is extended to 21 days from the date of the order to be made to that effect on publication of these reasons.
It is my preliminary view that the costs of this application should be costs in the cause of the application for provision to be brought under the Act. The parties should confer and attempt to agree orders. If agreement cannot be reached, minutes of proposed orders are to be filed by 7 March 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell
29 FEBRUARY 2024
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