Nicholas v Tubb
[2016] TASSC 53
•13 October 2016
[2016] TASSC 53
COURT: SUPREME COURT OF TASMANIA
CITATION: Nicholas v Tubb [2016] TASSC 53
PARTIES: NICHOLAS, Gregory John
CASTLES, Lynette Vicki
NICHOLAS, Ross Percy
JONES, Susan Janet
v
TUBB, Stephen Leslie
NICHOLAS, Brodi Jake
NICHOLAS, Kylie Tabitha
FILE NO: 1384/2016
DELIVERED ON: 13 October 2016
DELIVERED AT: Launceston
HEARING DATES: 28, 29 and 30 September 2016
JUDGMENT OF: Holt AsJ
CATCHWORDS:
Succession – Family Provision – Procedure – Time for making application – Extension of time – General principles – Explanation for delay not reasonable – Extension of time refused.
Testators Family Maintenance Act 1912 (Tas), s11.
Aust Dig Succession [1451]
REPRESENTATION:
Counsel:
Applicants: J C Kitto
First respondent: C Scott
Second respondent: T J Ellis SC
Third respondent: No appearance
Solicitors:
Applicants: James C Kitto
First respondent: Julie Byrne Legal
Second respondent: Darrell Grey
Third respondent: Darrell Grey
Judgment Number: [2016] TASSC 53
Number of paragraphs: 37
Serial No 53/2016
File No 1384/2016
GREGORY JOHN NICHOLAS, LYNETTE VICKI CASTLES, ROSS PERCY NICHOLAS, SUSAN JANET JONES v STEPHEN LESLIE TUBB,
BRODI JAKE NICHOLAS, KYLIE TABITHA NICHOLAS
REASONS FOR JUDGMENT HOLT AsJ
13 October 2016
The application
Probate of the will of the late Ellen Maude Nicholas, who died on 10 April 2014, was granted on 27 March 2015. The time for bringing an application for family provision under the Testators Family Maintenance Act 1912 ("the Act") expired on 27 June 2015. Distributions in accordance with the will are yet to be made. On 19 May 2016 an originating application was filed with the four children of the testatrix seeking further provision under the Act. At the same time an interlocutory application seeking an extension of time for the bringing of the proceedings was filed. This is my decision in respect of the time application.
The imposition of the time limit and the power to extend it are contained in the Act, s11, which is as follows:
"11 Time within which application to be made
(1) Except as provided by subsection (2) of this section, the Court or judge shall have no jurisdiction to hear any application, or to make any order under this Act, unless the summons hereinbefore mentioned be taken out before or not later than three months after the date of grant of probate of the will of the deceased person, or letters of administration of the estate of the deceased person, as the case may be.
(2) Notwithstanding anything in subsection (1) of this section, upon application being made in that behalf by a person claiming the benefit of this Act, the Court or a judge may, after hearing such of the persons affected or likely to be affected by that application as it or he may think fit, extend the time limited by that subsection for the taking out of a summons for such further period as the Court or judge may think necessary.
(3) The powers conferred on the Court or a judge by subsection (2) of this section may be exercised notwithstanding that the time limited by subsection (1) of this section for the taking out of a summons may have expired (whether that time expired or expires before or after the commencement of this subsection).
(4) An application under subsection (2) of this section shall be made before the final distribution of the estate of the deceased person, and no distribution of any part of the estate made before the making of an application under that subsection shall be disturbed by reason of that application or of any order made thereon or in consequence thereof."
The principles to be applied
The discretion is not fettered by the terms of the statute and so there is no exhaustive or rigid list of considerations to be applied. In the circumstances of the present application, and consistently with what Underwood J (as he then was) said in Lazenby v McDermott [2000] TASSC 121, there was no disagreement between counsel that the following matters should be taken into account:
·The strength of the claim.
·The length of the delay.
·The reasonableness of the explanation for the delay.
·The prejudice, if any, to the beneficiaries arising from delay.
·Any unconscionable conduct on the part of an applicant.
The case which an applicant proposes to present, in the event that time is extended, obviously needs to be considered in most cases. If it is clear that a claim lacks viability, no purpose would be served by extending time. In considering the merits of a prospective claim for provision a court will often only have before it materials in skeletal form and so except in clear cases it would be wrong to attempt to undertake a detailed merits assessment so that a prospective claim might be classified as weak or strong or somewhere in between. Plainly a widow without means and without provision for her future maintenance and support having been made in her husband's will would generally be immediately recognisable as an applicant having a strong claim. Conversely, a wealthy adult child seeking provision from a small estate where there are needy beneficiaries would generally be immediately recognisable as an applicant having a weak claim. Usually, however, a merits assessment of cases in between on an extension of time application would not be productive. Initial impressions might change when all of the evidence has been received and full argument on the family provision application has been presented.
The background
The circumstances of the case are as follows.
The testatrix and her husband resided on a farming property at Quamby Brook in Northern Tasmania where they brought up their four children. The husband performed the farming work. The testatrix looked after the household. The children performed work around the property as assigned to them by their parents from time-to-time. The husband died in 2003 leaving the farm to the testatrix. By then all of the children had been living away from the farm for many years.
The testatrix and her husband had brought up Kylie Nicholas (the third respondent), being the eldest child of one of their daughters (being the second applicant). The son of Kylie Nicholas, Brodi Nicholas (the second respondent), spent a good deal of time on the farm and was aged 8 years when the husband of the testatrix died. The sheep which had been run on the farm were sold and the brother-in-law of the testatrix, Donald Nicholas, undertook farm work and used the farm to agist his cattle. None of the children of the testatrix provided assistance around the farm after the death of their father.
The testatrix made her will in December 2008. Under the will the farm was left to Brodi Nicholas, then aged 13 years. Brodi Nicholas moved onto the farm and lived with the testatrix from about 2012. At about this time the testatrix told Brodi Nicholas that she was leaving the farm to him as she wanted it to be looked after and kept in the family. The children of the testatrix knew that the farm was to be left to Brodi Nicholas well before the death of their mother.
The testatrix died in April 2014. By her will she appointed her eldest daughter, Susan Jones (the fourth applicant), her nephew Stephen Tubb (the first respondent) and her brother-in-law Donald Nicholas to be the executors of her estate. Donald Nicholas died shortly after the testatrix and so when probate issued it was granted to Susan Jones and Stephen Tubb only.
The major estate asset of the estate of the testatrix was the farm, which according to the inventory filed at the time of the grant of probate had a value of $220,000. The balance of the estate comprised cash deposits totalling about $46,000.
Under the will Brodi Nicholas was to receive the farm, associated equipment and $5,000. Donald Nicholas and the two middle children of the deceased (the first and second applicants) were to receive $500 each. The residue was to be divided equally between the other two children of the deceased (the third and fourth applicants) and Kylie Nicholas.
The precise contents of the will were known to all of the children of the testatrix within a couple of months after her death. The middle two children were dissatisfied with the $500 bequests to them. In October 2014 they decided that they would seek further provision. At the same time the youngest son (the third applicant) decided to join with them in bringing proceedings. They agreed that the eldest son (the first applicant) would have responsibility for securing legal advice and bringing the claims.
It was not until August 2015 that the eldest son first contacted a solicitor about the prospective claims. With one exception, prior to this time the other two children who intended claiming made no specific requests for information about progress from their older brother. Nor did they do anything themselves to progress the matter.
In May 2015 the eldest child, Susan Jones, who was an executor, had been sent by the solicitor for the estate a transfer form to be signed by her to facilitate the transfer of the farm to Brodi Nicholas. After a number of questions under cross-examination she eventually conceded that she had received the transfer form in May 2015. By the time of the hearing in September 2016 she had still not signed and returned the form. If she had signed and returned the form promptly the farm would have been transferred to Brodi Nicholas well before her three siblings had brought their claims and so there would have been no prospect of disturbing the bequest of the farm.
The originating application seeking provision, which was filed in May 2016, only named the three younger children in the heading as applicants. However, in the contents of the orders sought application for provision was made on behalf of all four children. Shortly following the filing of the application the name "Susan Jones" was removed as a respondent and added as the fourth applicant.
Notice of the prospective claims for provision was given to the solicitor for the estate in August 2015. There were some negotiations which had come to an end by Christmas 2015. It was not until about 5 months later that the proceedings were commenced. Between Christmas 2015 and the initiation of the proceedings Brodi Nicholas continued to undertake work on the farm and purchased equipment for the farm including a tractor. He also undertook improvements to the farm house.
The strength of the prospective claims for further provision
I begin with the considerations which apply to the determination of the question whether an order for provision can be made.
The Act, s 3(1) provides:
"If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."
In Thorne v The Public Trustee [2015] TASSC 56 I set out the approach to be taken and I repeat (as it was adopted by counsel for the parties) what I said at [9] – [12]:
"9 By the terms of the Act, s 3(1), no discretion to interfere with the estate arises unless it is first established as a matter of jurisdiction that the applicant has been "left without adequate provision for (her) proper maintenance and support thereafter". The assessment is undertaken "having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty". Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 210.
10 The jurisdictional question is answered as at the date of death. Coates v National Trustees, Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494.
11 In making the appraisal the Court is to 'connect the general but value-laden language of the statute to the community standards'. In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Gleeson CJ said at par [25]:
'In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description "moral".'
12 The enquiry of the Court is undertaken from the perspective of a wise and just testator. Bosch v Perpetual Trustee Co[1938] AC 463 at 478 – 479. The wise and just testator is assumed to be aware of all of the relevant circumstances including reasonably foreseeable eventualities existing at the date of death, regardless of whether or not such potential eventualities were actually known to the testator. Litchfield v Smith & Anor [2010] VSC 466 at [26]. Matters occurring after the death of the testator, but before the hearing of the application, may provide evidence of what was foreseeable. Coates at 508."
The four children of the testatrix were adults at the time of death. The youngest was aged 50 and the eldest, Susan Jones, was aged 62. There is no bar to adult non-dependent children obtaining provision, even if only as a buffer against contingencies. In Newman v Newman [2015] NSWSC 1207, Hallen J said at [114(c) – (e)]:
"(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute: Taylor v Farrugia, at [58]; Smith v Johnson [2015] NSWCA 297, per Sackville AJA, at [92].
(d) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45 (Nicholson J).
(e) The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig, at [17]."
There was evidence that at the time of the death of the testatrix the eldest son had been estranged from his mother for several years. However, estrangement between parent and child is not necessarily a bar. Underwood v Gaudron [2014] NSWSC 1055 [230] – [231]. (The decision was not disturbed on appeal. Underwood v Gaudron [2015] NSWCA 269)
I now turn to the material presented in respect of the merits of the prospective claims.
The first applicant was aged 58 years and in poor health with resultant unemployment at the time of the death of the testatrix. He owned a house worth about $375,000 which was subject to a mortgage of about $180,000. He had only a modest amount saved for retirement having about $70,000 in superannuation investments. Despite the fact that he had received a benefit during the life of the testatrix, namely rent free occupation of part of the farm to operate his sawmilling business for about 4 or 5 years, I consider that he has a viable claim for provision beyond the sum of $500 which was left to him in the will.
The second applicant was aged 61 years and in poor health at the time of the death of the testatrix. She had been a long time disability pensioner. She jointly owned two properties with her former partner each unencumbered and each worth about $180,000. She had no savings for her old age. Despite the fact that she received a benefit during the life of the testatrix, namely having the testatrix bring up her first child, she has a viable claim for provision beyond the sum of $500 which was left to her in the will.
The third applicant was aged 50 years, in good health and had full-time employment, earning about $90,000 per year, at the time of the death of the testatrix. He owned real estate in South Australia in which he had equity of about $80,000. He had about $180,000 in superannuation investments. Had the estate been distributed without legal complication and associated cost his share would have been about $10,000. Although, on the limited material available to me, it would appear that his claim is the weakest of all of the applicants, there is nonetheless a prospect of him obtaining further provision under the Act.
The fourth applicant was aged 62 with some health problems at the time of the death of the testatrix. She had employment in a childcare organisation with a net income of about $45,000 per annum. She owned no real estate. She had about $8,500 in savings and about $85,000 in superannuation investments. Had the estate been distributed without the cost of legal proceedings her share would have been about $10,000. As with the other applicants, she has a viable claim.
The other considerations
If an extension of time is granted the claims are unlikely to be heard and determined prior to early to mid-2017. Had the claims been made within time, that is to say by June 2015, and had the claims been diligently pursued, they would likely have been determined by late 2015 or early 2016. The policy of the legislation imposing the time limit is that claims be made promptly so as not to hold up the distribution of estates beyond such time as is reasonably necessary for disappointed family members to consider bringing claims, to take legal advice and to initiate proceedings. The result of granting an extension of time would be that the distribution of the estate will have been held up for more than twelve months beyond the time which would have transpired had the claims been timely.
The first three applicants decided to bring claims in October 2014 with the first applicant to be responsible for taking the necessary steps. The fourth applicant did not form an intention to take proceedings until much later.
The first applicant gave generalised evidence about health problems, being busy with his own affairs and being busy with the collection and sale of farm assets being the property of the estate of his late uncle. He gave evidence that he did not know of the applicable time limit and that he had assumed that time would not start to run until after there had been a formal reading of the will to all family members or until after he had received advice that probate had issued. These factors provide no sufficient reason for the first applicant not to have consulted a lawyer between the decision to bring claims, made in October 2014, and the expiry of the time limit in June 2015. He knew that he was expected to consult a lawyer promptly. The third applicant gave evidence that at Christmas time in 2014 he asked the first applicant "how they were going with the legal advice and where we stand". He said that the response from his brother was that they "were working on it". In his evidence, the first applicant acknowledged that the conversation had occurred. He explained that he had misinformed the third applicant because he was "just hoping to have it done".
Shortly after being consulted by the first applicant the solicitor engaged ascertained that probate had issued several months earlier. He caused a caveat to be placed over the farm on behalf of the first applicant, even though the first applicant had no caveatable interest. The solicitor then attempted to negotiate a resolution by writing a letter of offer in September 2015. The offer had been rejected by Christmas 2015. Still, it was not until May 2016 that the application for provision was filed.
In my opinion, it was not reasonable for the first applicant to defer obtaining legal advice for many months after October 2014 when he had agreed with his brother and sister to do so. It was not reasonable for the first applicant, knowing that probate had issued and that settlement negotiations had failed, to defer providing his solicitor with sufficient instructions to commence proceedings until May 2016.
During the period between Christmas 2015 and May 2016 the beneficiary of the farm, Brodi Nicholas, undertook improvements to the property and purchased a farm tractor. If time is extended Brodi Nicholas will be further prejudiced in that he will be left for several more months not knowing whether the bequest of the farm to him will survive.
Notwithstanding that the first applicant has a viable claim, having regard to the period of delay, the absence of a reasonable explanation for it and the ongoing prejudice suffered by Brodi Nicholas as a result of the delay, I am left unpersuaded that the justice of the case rests with giving the first applicant a favourable exercise of the discretion to extend time.
Although the first applicant had primary responsibility for the task of obtaining legal advice and bringing proceedings, there was no evidence of any steps taken by the second applicant to keep herself informed of progress and to push the matter ahead. The second applicant had problems with her hips and was unable to drive, but this would not have prevented her from taking an active interest in the progress of the claim to be made on her behalf. In the absence of information as to progress it was, in my opinion, unreasonable for the second applicant not to make any personal endeavour in respect of the matter. The failure of the second applicant to take an active role has contributed to the delay and to the prejudice which has been suffered and will be suffered by Brodi Nicholas if time is extended. In the circumstances I am not persuaded that the justice of the case rests with giving the second applicant a favourable exercise of the discretion to extend time.
The third applicant was living interstate at all relevant times. However, besides making an enquiry of the first applicant as to progress at Christmas time in 2014, he did nothing to keep himself informed. He could easily have monitored progress and pushed activity by telephone communication with the first applicant. In the circumstances I consider that his application for an extension of time should be refused for the same reasons which have caused me to decide that the application of the second applicant should be refused.
The fourth applicant, Susan Jones, is an executor of the estate. In May 2015 she was requested by the solicitor for the estate to sign and return an instrument to effect the transfer of the farm to Brodi Nicholas. Regardless of whether her failure to sign and return the form was wilful or the result of neglect, but for the failure the farm would already have been transferred into the name of Brodi Nicholas. Once that had occurred there would have been no possibility of disturbing the bequest. In this circumstance I am not persuaded that it would be just as between the fourth applicant and Brodi Nicholas to extend the time for bringing an application which may result in Brodi Nicholas being deprived of the title to the farm, which should already have been transferred to him.
Disposition
The application by the four children of the testatrix for an extension of time to apply for further provision under the Act will be dismissed.
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