Penninger v Penninger

[2017] NSWSC 892

Supreme Court

New South Wales

Medium Neutral Citation:

Penninger v Penninger [2017] NSWSC 892

Hearing dates:

18 May 2017

Date of orders:

06 July 2017

Decision date:

06 July 2017

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court:

 

(i) Orders, pursuant to s 91 Succession Act 2006 (NSW), that administration in respect of the estate of the deceased, Nella Maria Penninger, be granted to the Plaintiff, for the purposes only of permitting her application for a family provision order to be dealt with.

 

(ii) Orders, sufficient cause having been shown, that the time for the making of the Plaintiff’s application be extended until 25 July 2016, the date of the filing of the Summons.

 

(iii) Orders, having found that the Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, in lieu of the provision made for her in the Will of the deceased, that the Plaintiff receive a lump sum of $17,500 out of the estate of the deceased.

 

(iv) Orders that no interest is to be paid on the lump sum, if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum.

 

(v) Orders that the Plaintiff’s costs, calculated on the ordinary basis, and the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased.

 

(vi) Orders the lump sum payable to the Plaintiff, any interest accrued thereon, and any costs of both parties, constitute a charge over the Merriwa property until paid in full.

 

(vii) Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the orders made herein.

(viii) Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

Catchwords:

SUCCESSION - FAMILY PROVISION - The Plaintiff, a daughter of the deceased, applies for additional provision out of the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Small estate - No dispute as to the Plaintiff’s eligibility as a child of the deceased – The Defendant also child of the deceased and one of the executors in the Will - No application by Defendant for administration made at date of hearing - Proceedings not commenced within time - Whether sufficient cause shown to extend time - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff and, if so, the nature and quantum of the provision to be made.

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Limitation Act 1969 (NSW)
Probate and Administration Act 1898 (NSW)
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Aubrey v Kain [2014] NSWSC 15
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Butcher v Craig [2009] WASC 164
Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748
Carey v Robson (No 2) [2009] NSWSC 1199
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646
Christie v Manera [2006] WASC 287
Crossman v Riedel [2004] ACTSC 127
de Angelis v de Angelis [2003] VSC 432
Diver v Neal [2009] NSWCA 54
Estate of the late Anthony Marras [2014] NSWSC 915
Flathaug v Weaver [2003] NZFLR 730
Foley v Ellis [2008] NSWCA 288
Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195
Gleeson v Gleeson [2002] NSWSC 418
Goodsell v Wellington [2011] NSWSC 1232
Goodman v Windeyer [1980] HCA 31; 144 CLR 490
Grey v Harrison [1997] 2 VR 359
Harkness v Harkness (No 2) [2012] NSWSC 35
Harrison v Harrison [2011] VSC 459
Hawkins v Prestage (1989) 1 WAR 37
Henry v Hancock [2016] NSWSC 71
Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159
Hinderry v Hinderry [2016] NSWSC 780
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
Hyland v Burbidge [2000] NSWSC 12
In re Marland (decd) [1957] VR 338
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Kohari v Snow [2013] NSWSC 452
MacGregor v MacGregor [2003] WASC 169
Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146
Mansfield v Mansfield [2003] WASC 214
Marks v Marks [2003] WASCA 297
Mayfield v Lloyd-Williams [2004] NSWSC 419
McGrath v Eves [2005] NSWSC 1006
McKenzie v Topp [2004] VSC 90
McCosker v McCosker [1957] HCA 82, (1957) 97 CLR 566
Moore v Randall [2012] NSWSC 184
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 at 19
R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808
Re Buckland, Deceased [1966] VR 404
Re Salmon, Deceased [1981] Ch 167
Salmon v Osmond [2015] NSWCA 42
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; (2013) 85 NSWLR 253
Smith v Johnson [2015] NSWCA 297
Sophron v The Nominal Defendant (1957) 96 CLR 469
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stollery v Stollery [2016] NSWSC 54
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Verzar v Verzar [2012] NSWSC 1380
Verzar v Verzar [2014] NSWCA 45
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Vincent v Lewis [2006] NZFLR 812
Walker v Walker (Supreme Court (NSW), 17 May 1996, unrep)
Underwood v Gaudron [2015] NSWCA 269
Wheat v Wisbey [2013] NSWSC 537
Wilcox v Wilcox [2012] NSWSC 1138

Category:

Principal judgment

Parties:

Ms Alba Silvia Maria Penninger (Plaintiff)
Mr Jean (also known as John) Penninger (Defendant)

Representation:

Counsel:
Ms M Pringle (Plaintiff)
Mr A F Stevens (Defendant)

  Solicitors:
Jessep & Storm (Plaintiff)
Willis & Bowring (Defendant)

File Number(s):

2016/223752

Judgment

The Nature of the Proceedings

1. HIS HONOUR: These reasons concern proceedings between siblings, who are two of the three children of Nella Maria Penninger (“the deceased”). The deceased’s children are the Plaintiff, Alba Silvia Maria Penninger, who was born in July 1956, the Defendant, Jean (now known as “John”) Penninger, who was born in May 1948, and Walter Penninger, who was born in June 1953.

2. Without intending to convey undue familiarity, with no disrespect intended, and for convenience and clarity, I shall refer, hereafter, to the parties and other family members, after introduction, by her, or his, name used during the hearing.

3. The deceased died on 8 July 2010, aged 86 years. However, the proceedings were commenced by Summons filed on 25 July 2016. Alba sought additional provision out of the deceased's estate and notional estate pursuant to the Succession Act 2006 (NSW) ("the Act"). Because her proceedings were not commenced within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased), she also sought an order that the time in which to commence the proceedings be extended up to, and including, the date of the filing of her Summons. In addition, because there has not been a grant of Probate of the deceased’s Will, she sought an order under s 91 of the Act. Finally, she sought an order for her costs to be paid out of the deceased’s estate.

4. The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) ("the former Act"), which was repealed, effective from 1 March 2009. A family provision order is an order made by the Court in relation to the estate, or notional estate, of a deceased person, to provide from that estate, for the maintenance, education, or advancement in life, of an eligible person.

5. It is not in dispute that as a child of the deceased, Alba is an eligible person within s 57(1)(c) of the Act. The language of the relevant sub-section is expressive of the person’s status, as well as her relationship to the deceased. There is no age limit placed on an eligible person making an application.

6. At the commencement of the hearing, the parties agreed that there was no property that could be designated as notional estate of the deceased. In the circumstances, hereafter, I shall simply refer to the estate of the deceased. They also agreed that there is no scope for the operation of the intestacy rules, which means that it is only necessary to refer to the Will of the deceased.

Procedural Matters

7. There were a number of procedural matters that were raised during the hearing.

8. John is not the sole executor named in the Will made on 1 August 1997 by the deceased. The other two named executors are Walter, and a solicitor, Mr M P Hallett. Neither Walter, nor Mr Hallett, has played any part in the proceedings.

9. On 9 March 2015, Mr Hallett, who is now retired, executed a form of renunciation of Probate, a copy of which forms part of Alba’s evidence. John and Walter, despite the passage of 7 years from the date of death of the deceased, have not sought Probate of the deceased’s Will. It will be necessary to return to this aspect of the matter later in these reasons.

10. Alba disregarded Uniform Civil Procedure Rules (“UCPR”) rule 7.11(1) in commencing the proceedings. That rule requires, in proceedings relating to an estate, that all executors of the Will of the deceased, or all administrators of the estate, must be parties.

11. John was named as the sole Defendant in the Summons and has represented the deceased’s estate since the commencement of the proceedings. He is a beneficiary, with Walter, of the only remaining property forming part of the estate of the deceased. It appears that, since the deceased’s death, John has remained in control of the deceased’s real property to which I shall refer. He resides on, and operates his business from, that property.

12. There is no evidence that suggests that Walter is interested in obtaining Probate of the deceased’s Will or in having the estate distributed in accordance with its terms. He appears to have been uninterested in participating in the proceedings either as a party or as a witness.

13. Both Alba and John referred in her, and his, affidavit, respectively, to Walter having worked as a solicitor. Each also gave evidence that, to her, and his, knowledge, Walter lives on a yacht in Fiji.

14. In the circumstances of the present case, the Court should exercise its power to dispense with UCPR, rule 7.11(1), pursuant to s 14 of the Civil Procedure Act2005 (NSW). It seems clear that the only person interested in defending Alba’s proceedings is John. It is his interest in the estate that may bear in whole, or in part, the burden of any provision made in favour of Alba.

15. Without opposition from Alba, at the commencement of the hearing, I made an order that UCPR rule 7.11(1) be dispensed with.

16. Also, at the commencement of the proceedings, the Court raised with the parties, the need for an order to be made appointing John a representative of the deceased’s estate for the purposes of the proceedings, pursuant to UCPR rule 7.10(2)(b). Needless to say, John’s consent to be appointed was immediately forthcoming and, without opposition from Alba, I also made that order.

17. The next procedural issue concerns s 91 of the Act. Neither party made any submissions, in writing, regarding s 91, which section provides:

"(1) This section applies if an application is made by a person for a family provision order, or notional estate order, in respect of the estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted.

(2) The Court may, if it is satisfied that it is proper to do so, grant administration in respect of the estate of the deceased person or deceased transferee to the applicant for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person or deceased transferee left property in New South Wales.

(3) The granting of administration under the Probate and Administration Act1898 does not:

(a) prevent the Court from granting administration under this section, or

(b) unless the Court otherwise orders, affect any previous grant of administration under this section.

(4) The provisions of the Probate and Administration Act1898 apply to a grant of administration under this section, and to the legal representative of the estate, in the same way as they apply to a grant of administration under that Act and the legal representative of any estate for which such a grant has been made."

18. Relevantly, in this case, the application referred to is by Alba for a family provision order in respect of the estate of the deceased, in relation to which administration has not been granted.

19. The section does not provide for the making of a grant for the purposes of an application for a family provision order before such an application is made. Thus, if an eligible person makes an application for a family provision order, then that application can include an application for an order under s 91. That has happened in this case.

20. In addition, s 58(1) of the Act provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.

21. Section 91 differentiates between "when an application is made" (the date of the filing of the Summons) and "when the application ... is dealt with" (the date of making a family provision order, whether by agreement of the parties, or following a contested hearing or the determination of the proceedings otherwise). The common prerequisite for the section to apply, at either date, is that there is an estate of a deceased person, or deceased transferee, respectively, in relation to which administration has not been granted.

22. In Wheat v Wisbey [2013] NSWSC 537 at [29] – [60], I dealt with s 91 and whether it was always necessary to grant administration in order to deal with an application for a family provision order. I shall not repeat all of what I wrote in that case.

23. At [57], however, I stated:

“In summary, then, in a case where there is an application for a family provision order in respect of the estate of a deceased person, or deceased transferee, or a notional estate order, in relation to which administration has not been granted:

(a) Where there is real and personal estate of which the deceased person dies seised, or possessed of, or entitled to, in New South Wales, at the date of death, a grant of administration is required before an application for a family provision order can be dealt with and it would be proper to make an order under s 91.

(b) In any other case, where there is no such real or personal estate, if:

(i) the holder of the property the subject of the application for a notional estate order is a party to the proceedings;

(ii) a family provision order and a costs order is made in favour of the applicant;

(iii) a notional estate order is, or may be, made in respect of the property the subject of the application for a notional estate order for the purposes of a family provision order, or for the purposes of an order that the whole, or part, of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid out of the notional estate of the deceased person;

(iv) an order is made that the holder of the property the subject of the notional estate order, or that person agrees, to satisfy the family provision order; and

(v) the court makes an order that the family provision order not take effect as set out in s 72(a) or (b),

then, it may not be "proper" to make a s 91 grant.”

24. It will be appreciated that s 91(2) identifies the person to whom the grant may be made, namely, “the applicant for the purposes only of permitting the application concerned to be dealt with”. The “applicant” in this case is Alba, and it is to her that the grant under s 91 may be made.

25. In the present case, as will be read, there is real and personal estate of which the deceased died seised, or possessed of, or entitled to, in New South Wales, at the date of her death. It follows that for the purposes only of permitting the application concerned to be dealt with, it is proper to make an order under s 91. I have come to the view that this should be done, even if Alba’s proceedings were to be dismissed, since even if a family provision order is not made, her application would “be dealt with”.

26. The third procedural issue related to the late service of affidavits. On 9 December 2016, the matter was listed for hearing in the Family Provision running list to commence on 18 May 2017. At the time of listing the matter for hearing, the Court made following direction:

“…each party serve upon the other the updating affidavits required by Practice Note SC Eq 7, Paragraph 17, respectively, by 4:00 p.m. on Thursday, 13 April 2017, and either deliver, to the Chambers of the Family Provision List Judge, the original of any affidavit served, or file those affidavits by electronic means, by the same date and time.”

27. Paragraph 17 of the Practice Note, relevantly provides:

“If the matter has not settled, a timetable will be made for the preparation of the matter for final hearing. The timetable is to include provision for filing and service of a costs affidavit and any updating affidavit of any party or beneficiary.”

28. When the matter was listed for hearing, there was only one affidavit sworn by Alba, which affidavit was made on 18 July 2016. Paragraphs 108 to 129 dealt with her “Personal Financial Circumstances”.

29. At the pre-trial directions hearing on 19 April 2017, no updating affidavit, by Alba, had been filed, or served, relating to her current financial and material circumstances. When this was raised, Ms M Pringle, counsel who appeared for Alba throughout the proceedings, and who appeared at the hearing, responded that there had been no change in Alba’s financial and material circumstances. The failure to state this in an updating affidavit was raised by the Court and it was stated that at the hearing, there would only be Alba’s evidence which, by then, would be 9 months old.

30. At the commencement of the hearing, no affidavit updating her financial and material circumstances had been filed or served. However, counsel then sought to file in Court an affidavit sworn 18 May 2017 (the day of the hearing).

31. A copy of the affidavit had not been given to John’s legal representative until the matter was raised, that is, after the commencement of the hearing, despite there having been an adequate opportunity to do so prior to the commencement of the hearing (at least 20 minutes whilst the Court dealt with other matters). When asked why it had not been provided to counsel for John, counsel for Alba stated that it had been “an oversight”: T3.00 – T3.06.

32. When asked why there had not been an affidavit prepared earlier, Alba’s counsel stated that she had only become aware of certain information that day. She was unable to explain why no steps had been taken to have an affidavit prepared, and served, prior to, or shortly after, 18 April 2017 (the date of the directions hearing): T4.16 – T4.32.

33. Unsurprisingly, John’s counsel objected to the affidavit being relied upon as it appeared that “there had been a change in circumstances” and because John would be prejudiced if the affidavit was able to be relied upon.

34. As will be read, the Court determines whether adequate provision for the proper maintenance, education or advancement in life of the person, in whose favour the order is to be made, has not been made by the will of the deceased, at the time when the Court is considering the application.

28. It is to be noted that one of the matters to which the Court may have regard, under s 60 of the Act, for the purpose of determining whether to make a family provision order, and the nature of any such order, is “(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…” (my emphasis).

29. UCPR rule 10.2 provides that a party intending to use an affidavit that has not been filed, must serve it on each other interested party no later than a reasonable time before the occasion for using it arises, and that a party who fails to serve an affidavit as required, may not use the affidavit except by leave of the court.

30. Clearly, in this case, the Plaintiff did not serve the affidavit a reasonable time before the occasion for using it arose.

31. In Aubrey v Kain [2014] NSWSC 15 at [196] – [197], I wrote:

“In Collings v Vakas [2006] NSWSC 393, a case decided under the former Act, Campbell J (as his Honour then was) stated, at [66]–[68]:

Before the Court can make an order in the plaintiff’s favour, it needs to be satisfied that she was left, at the testator’s death, without adequate provision for her maintenance, education or advancement in life. It is clear that she owns no real estate (unlike her brothers), and that she has ongoing family responsibilities.

However, before a court can be satisfied that a plaintiff has been left without adequate provision, the court needs to be persuaded that it has been presented, at least in broad outline, with the whole picture concerning the plaintiff’s financial situation. In the present case, even though there are two elements of the plaintiff’s financial situation about which I am satisfied (that she owns no real estate, and has family responsibilities), when another crucial element of the plaintiff’s financial situation (namely, her income and expenditure) is not satisfactorily proved, it is not possible to conclude that she has been left without adequate provision.

In these circumstances, the plaintiff’s claim is dismissed.

A similar approach was taken by McLaughlin AsJ in Foye v Foye [2008] NSWSC 1305, in which his Honour wrote:

It cannot be emphasised too strongly that it is incumbent upon an applicant for provision to disclose to the Court as fully and as frankly as possible all details of that applicant’s financial and material circumstances. Where an applicant is living with a spouse or partner, that obligation extends also to the circumstances of such spouse or partner. It is quite inappropriate for an applicant to fail (as Edward has failed in the instant case) to set forth the financial and material circumstances of his wife, and then to say that he was not asked to provide any information concerning her finances. Whether or not he is expressly requested to provide such information, an applicant has an obligation to place that information before the Court.

Neither the Court nor the Defendant should be required to embark upon a search for information which Edward himself had an obligation to provide frankly and voluntarily in support of his claim. If he chooses not to inform the Court of the details of the finances of the wife with whom he is living, then the Court is entitled to draw appropriate inferences from that omission.

…

I have already referred to the obligation of an applicant for provision to place before the Court as fully and as frankly as possible all information concerning the applicant’s financial and material circumstances. I have also referred to the fact that it is not the responsibility of the Defendant to elicit evidence concerning those circumstances which the applicant herself fails to provide voluntarily.”

39. In Estate of the late Anthony Marras [2014] NSWSC 915, Bergin CJ in Eq., at [238], emphasised the need for applicants for provision under s 59 of the Act to make “full and frank disclosure of their financial circumstances” and to provide, at least in broad outline, the “whole picture” concerning their financial situation.

40. More recently, Stevenson J in Stollery v Stollery [2016] NSWSC 54 at [47], also commented:

“An applicant for provision under the Act must place before the Court an accurate statement of his or her financial position. Otherwise, the Court is in no position to assess whether the provision made for the applicant in the will in question is otherwise than adequate.”

41. Legal representatives for a party have a duty, and responsibility, to ensure that there is compliance with the Court’s directions. That must be obvious when there is a real possibility that a party’s claim could be dismissed because of the failure to bring forward necessary evidence.

42. In the present case, the Plaintiff’s legal representatives do not appear to have complied with their duties, or obligations, in a timely way, and even when they attempted to do so, a copy of the affidavit was only provided to John’s legal representative at the time the original was sought to be filed in Court.

43. The apparent delinquency of the Plaintiff’s legal representatives is highlighted, when, one month prior to the hearing, the Court explicitly raised with her counsel, the requirement for compliance with the Court’s directions regarding the service of an updating affidavit. Even then, nothing was done until after the commencement of the hearing.

44. Rather than refusing leave to Alba to file the affidavit in Court, or rejecting the whole of the affidavit, the Court, without opposition from John’s counsel, permitted the affidavit to be filed in Court and read, but rejected those parts of the affidavit that had not been referred to in Alba’s earlier affidavit and which demonstrated a change in circumstances (e.g. deterioration of Alba’s health, a copy of various documents which bore a date in 2016, updated credit card debts without production of the credit card statements and decreases in income).

45. There is little doubt that the admission of that evidence could cause John some prejudice in the conduct of his defence of the proceedings.

46. It should be explained that one of the reasons the Court adopted the course that it did was that John, also, sought to rely upon affidavits that had only been served the day before the hearing. The only features of this evidence that distinguishes it from the conduct of the Plaintiff’s legal representatives was that, for the most part, it was in the form of annexing a copy of correspondence between the solicitors for each of the parties and that it was not really controversial.

47. This leads to the next matter that has caused the Court some concern. In the case, an issue relates to the value of the deceased’s estate. As will be read, the only property, of any value, that the deceased held at the date of her death, was a two-thirds interest in real property situated at, and known as, Depot Road, Merriwa (“the Merriwa property”). The remaining one-third interest in that property is owned by John.

48. At the hearing, the parties agreed that the total gross value of the Merriwa property was $537,500, with the deceased’s interest, therefore, having a value of $358,333.

49. It was accepted by Alba, that there was registered on the title to the Merriwa property, a Mortgage dated 5 March 1991 (and registered on 10 April 1991), in favour of Margaret Stanton, John’s wife. The mortgagors are identified as “[the deceased] …as to a one third share and John… as to a one third share as Tenants in Common.”

50. The principal sum secured by the Mortgage was $175,000, and interest, at the rate of 15 per cent per annum, was to be paid “on so much of [the principal sum] as for the time being shall remain unpaid and upon any judgment or order in which this…covenant shall become merged”.

51. John disclosed in his affidavit sworn 29 September 2016, that Margaret had provided $175,000 to the deceased’s husband and to John when they “had got into financial difficulty … to assist us in paying our debts”. During cross-examination, he accepted that it was not a loan to him and his father, but rather to him and the deceased: T41.36 – T42.1. (It is clear that there had been an error, as the deceased’s husband had died in 1983.)

52. John also stated that when one calculated the principal and interest, the whole of the value of the deceased’s interest in the Merriwa property would be consumed completely, with the result that there was no estate from which an order could be satisfied.

53. In a directions hearing, on 7 October 2016, an issue had been raised regarding the value of the estate, and, in particular, whether the Mortgage was able to be enforced. In a letter dated 11 October 2016, addressed to Alba’s solicitors, John’s solicitors identified ss 40 and 42 of the Limitation Act 1969 (NSW), and s 58 of the Real Property Act 1900 (NSW), and referred to a decision of Gleeson v Gleeson [2002] NSWSC 418 at [28]. It was then asserted that:

“the interest of the deceased in the Merriwa property remains subject to the mortgage and the amounts owing under it. Therefore, there is effectively no asset of any value in the estate to satisfy any family provision order even if your client was successful.”

54. In her written submissions, counsel for Alba, raised the issue regarding a construction of the terms of the Mortgage and the obligation of the deceased to pay any part of the principal, or interest, under the Mortgage. It seemed to be asserted that Margaret had no entitlement to enforce the Mortgage.

55. In a letter dated 21 March 2017, John’s solicitors wrote to Alba’s solicitors stating that Margaret “is an interested party to these proceedings and ought to be joined. Kindly take instructions from the plaintiff regarding this joinder aspect”.

56. In a letter dated 23 March 2017, Alba’s solicitors responded “We advise that we have no intention of joining Margaret Stanton”.

57. In a letter dated 26 April 2017, from Elliot Tuthill, who acted for Margaret, addressed to John’s solicitors, the following passage appears:

“Please note our client continues to assert her security over the property at Merriwa and requires the mortgage to be repaid. In all likelihood, due to the length of the time the mortgage has been in force, the discharge amount will be in excess of the value of the property.

It appears to us that both our respective clients confirm our instructions that the amount of $175,000.00 was lent by our client to your client and the deceased in or about 1991. The lending was secured by a registered mortgage over the property.

For clarity:

1. Providing our client receives a repayment of the mortgage, our client does not require the repayment to her of the $70,000.00 she lent for the kit home nor the $10,000.00 her mother lent towards the renovation of the kitchen; and

2. Our client does not require immediate repayment of the mortgage. She does require the mortgage be repaid on John’s death or on the sale of the property, which ever event first occurs.

We note the letter from Jessop & Storm, Solicitors, 30 November 2016, requires certain documents be produced for our client. We have advised our client that there is no requirement for her to produce any documents. A copy of the registered mortgage is in evidence and remains registered on title.”

58. Counsel for John tendered a copy letter, dated 15 May 2017, from John’s solicitors to Alba’s solicitors (Ex. D1), which included:

“We refer to Plaintiff’s submissions dated 11 May 2017.

In our letter to you on 21 March 2017 we invited you to join Margaret Penninger to these proceedings on the assumption that you were to submit that Registered Mortgage ZXXXXX X is somehow unenforceable or Margaret’s interests thereunder is to be affected by the orders or declarations you seek. The Plaintiff has not sought to join Margaret despite her written submissions that the mortgagee’s right to claim payment of the mortgage has expired.

It appears to us that the plaintiff’s submissions raise issues of construction and/or enforceability or the mortgage which may need to be pleaded and for which Margaret needs to be joined so that her interest(s) may be dealt with.

We again invite you to reconsider your position. Moreover, if construction is to be dealt with, we question whether this matter can be dealt with in 1-day.

You should not assume that Margaret Penninger’s Affidavit will be read and relied upon in these proceedings.”

59. In these circumstances, and as neither party had sought to join Margaret to the proceedings, the Court informed the parties, at the hearing, that the construction of the Mortgage was not a matter that would be determined in the proceedings without an opportunity being given to Margaret to respond. (This course was followed because there was evidence that John and Margaret no longer live together.) Neither party then sought an adjournment of the proceedings.

60. The following exchanges between Bench and counsel for the Plaintiff took place during the hearing, at T48.00 – T48.26:

“HIS HONOUR: But you didn't, for example, seek a declaration that the mortgage was unenforceable which would have resulted in the necessity to join Margaret as a defendant in the proceedings.

PRINGLE: No, your Honour.

HIS HONOUR: So that doesn't help you either. If you're going to assert that the mortgage was unenforceable, you should have sought a declaration to that effect, so that Margaret could have participated in the hearing. She might have had a lot to say about the validity or otherwise of the enforceability of the mortgage. So, you didn't do that.

PRINGLE: No, your Honour.

HIS HONOUR: And it was only on 11 May, when you raised your submissions, that you even hinted at it. Up to that point in time, you disclaimed any suggestion that Margaret should be a party to the proceedings.

PRINGLE: Yes, your Honour. But with respect to the interest that can be claimed on the mortgage, the interest that can be claimed can only go back the six years that the Limitation Act allows.

HIS HONOUR: Again, Ms Pringle, that is a matter that you should have asserted as against Margaret as well as the estate. It would be unfair of me to come to that conclusion without giving Margaret an opportunity to respond. She might have a lot to say about that.”

61. I should also mention that John gave evidence, in answer to questions from the Bench, that Margaret had advanced the amount of money the subject of the mortgage, and that the source of the amount advanced “came as a result of a settlement of her previous marriage and the assets of that marriage”: T45.09 – T45.15. This evidence was not the subject of challenge.

62. John also gave evidence, in the affidavit of 13 April 2017, that the amount due under the mortgage was the principal sum ($175,000) plus interest ($656,250). He also asserted that a company in which he held the sole interest, Mirzain Pty Limited, had contributed $275,327 towards the repairs and renovations of the Merriwa property, “for example, installation of residential and Industrial buildings, fixtures and irrigation system”.

63. No claim had been made by Mirzain against the estate, although, because it is a company in which John is the sole shareholder, he has relied upon payments said to have been made to the Merriwa property as a contribution, by him, to the building up of the deceased’s estate.

Background

64. In a claim for a family provision order, factual context is necessary. It is next convenient to begin with a statement of background facts, since these provide that context. For the most part, the facts stated immediately below, are not controversial. In relation to any matters that were in dispute, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.

65. The deceased married Jean (John) Baptiste Georgio Ricardo Penninger (identified as Giovanni Giorgio Ricardo Batista Penninger in John’s affidavit sworn 13 April 2017), in or about May 1949. He predeceased the deceased, having died in August 1983. The deceased did not remarry, or enter into a de facto relationship, at any time thereafter.

66. There were only the three children of the marriage to whom reference has already been made.

67. The deceased’s Will provided:

“2.    I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal of whatsoever kind or nature and wheresoever situate unto my said Trustees UPON TRUST:-

(a)   As to my shares and any other interest in Mirzain Pty Limited including any commitment that Company may have to me in relation to any advances or unpaid wages and the like and as to my interest in the Merriwa real estate from the which the said Company operates its business to my sons the said JOHN PENNINGER and WALTER PENNINGER in equal shares as tenants in common; and

(b)   As to my interest in the property 18 Wolstenholme Avenue, Gymea to my son the said JOHN PENNINGER and MARGARET PENNINGER his wife in equal shares as tenants in common; and

(c)   As to the rest and residue of my said estate to my daughter ALBA PENNINGER absolutely.”

68. As there was no grant of Probate, there was no Inventory of Property which identified the deceased’s estate, at the date of death. However, in his affidavit made on 29 September 2016, John disclosed that at the date of her death the deceased:

1. did not own any shares in Mirzain Pty Limited, having transferred to him her only share in the company on or about 20 July 2005, that is about 5 years prior to her death;

2. did not have any interest in 18 Wolstenholme Avenue, Gymea, having transferred her interest in that property to him on about 28 August 2002, that is about 8 years prior to her death;

3. did have a two-third share in the Merriwa property ($358,333);

4. did have cash in bank ($10,088).

5. although the deceased was a resident of Gummun Place Hostel, at Merriwa, from 29 December 2004 to 28 July 2008, and was “deemed a bond paying resident”, no bond had been paid. It was said:

“During the period of her residence annual contributions which would normally be deductible from the bond were paid, as per the residential agreement”, with the consequence that “there are no funds either payable or refundable in relation to the period of [her] residency”.

69. In an affidavit made on 13 April 2017, John disclosed that the deceased’s estate then consisted of the deceased’s interest in the Merriwa property ($358,333), personal and household effects of nominal value and the remaining cash in bank of $136. (As at 13 September 2016, the balance in the account had been reduced to $5,856, with funds having been withdrawn to pay the funeral expenses.) (I have omitted, and shall continue to omit, a reference to cents in relation to values. This will explain any apparent mathematical miscalculations.)

70. At the commencement of the hearing, the parties agreed that, without any deductions at all for liabilities, or for the costs of the proceedings, the gross value of the deceased’s estate, at the date of hearing, was $358,333. Even on that basis, it will be appreciated that the estate is small.

71. John also stated that “The estate is insolvent by virtue of the mortgage and/or contributions by … Mirzain Pty Limited, to the development and/or contributions to the Merriwa property. Therefore, there are no assets available to meet the plaintiff’s claim.”

72. Usually, in calculating the value of the deceased's estate finally available for distribution, the costs of the proceedings should be considered with circumspection, since the plaintiff, if successful, normally would be entitled to an order that her costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the proceedings, normally will be entitled to an order that his costs, calculated on the indemnity basis, should be paid out of the estate.

73. As Basten JA put it in Chan v Chan [2016] NSWCA 222 at [54]:

“In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs.”

74. However, this statement does not mean that parties should assume, in all cases, that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195; Harkness v Harkness (No 2) [2012] NSWSC 35.

75. Alba’s costs and disbursements, calculated on the ordinary basis, of the proceedings, were estimated to be $30,000, inclusive of GST, and on the basis of a one day hearing.

76. John’s costs and disbursements, calculated on the indemnity basis, of the proceedings, were estimated to be $40,000, inclusive of GST, of which John has paid $18,700, from his own resources, leaving $21,300 left to be paid (T12.19 – T12.21). (The amount paid on account of costs, presumably, should be repaid to him out of the estate.)

77. John accepted that if Alba were successful, she should receive her costs, calculated on the ordinary basis. In the event that she was not successful, Alba accepted that no order for her costs should be made payable out of the deceased’s estate. John accepted that no order should be made for her to bear his costs of the proceedings: T14.32 – T15.09.

78. Apart from the quantum of the debt secured by the Mortgage secured on the Merriwa property, the parties agreed that if the costs of the proceedings (in total $70,000) were paid out of the deceased’s estate ($358,333), and if the estimates of costs proved accurate, the estate had a net distributable value of $288,333.

79. However, if all of the principal sum and interest is paid from the gross value of the estate (without deduction of the costs of the proceedings), then the estate would have no value. If the estimate asserted in regard to principal and interest on Alba’s behalf ($166,250) were paid, as well as the costs of the proceedings ($70,000), then the estate would have a value of $121,883.

80. To avoid further dispute regarding this issue, the parties seemed to be prepared for the Court to proceed upon the basis that after the payment of John’s costs, calculated at $40,000, the estate had a value of $139,000. The following passage, at T65.2 – T66.1, supports this view:

“STEVENS: Under the Real Property Act the mortgagee has a right to enforce, and from the sale proceeds the principal and interest.

For the purposes of this argument, the defendant agrees to isolate the one third interest in the property, now one third interest of the property $537,500, $179,611.

We agree to isolate that one third of the property, that the deceased was not the legal owner at the date of mortgage. So we take $179,000, we say is the unencumbered value of the estate, property, legal costs of $40,000 for the defendant's costs. Put the net value of the estate at $139,000. That is a way that your Honour can approach this.

If we agree that the unencumbered value of the property is $179,000, your Honour can make a determination based on that value in terms whether provision ought to be made.

…

HIS HONOUR: What happens, Mr Stevens, in the event the mortgagee says, I want everything, $600,000 odd?

STEVENS: I have come back to your Honour with that proposal, appreciating that risk. I have put [it] as a way forward.

HIS HONOUR: But, so it is $139,000 compared to $152,000, that is the difference.

STEVENS: Indeed, your Honour.

HIS HONOUR: Ms Pringle, anything to say?

PRINGLE: I am not going to cavil with Mr Steven's calculation, with additional litigation, it would appear to me if the defendant is prepared to accept that figure to bring these proceedings to a conclusion, then it is certainly not for the plaintiff to speak against it.”

81. On any calculation (other than deducting two thirds of the principal sum and two thirds of the interest, which would result in virtually no remaining estate), the estate is tiny.

82. The only persons who are, or who may be, eligible persons, within the meaning of the Act, are the parties and Walter.

83. As stated previously, the evidence appears to be that Walter lives overseas (in Fiji). On 13 September 2016, John’s current solicitors sent, by email, a letter of that date and a Notice of Claim. Walter acknowledged receipt of the documents, by email bearing date 14 September 2016. He requested John’s solicitor to send to him, by email, (correcting a typographical error) “a copy of the claim and any supporting affidavit and all documents filed by you by email.”

84. Under cover of an email sent on 15 September 2016, John’s solicitors sent to Walter, a copy of the Summons, Alba’s affidavit sworn 18 July 2016 and the Notice of Eligible Persons.

85. Walter has not made an application for a family provision order. Nor has he provided to John’s solicitors any information about his financial and material circumstances. Nothing is known about those circumstances. It seems that he does not wish to be involved in the proceedings.

86. John has not made an application for a family provision order either. He does, however, raise his financial and material circumstances in the proceedings.

87. The Court may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made, other than a beneficiary of the deceased person’s estate, but who has not made an application. It follows that neither John’s, nor Walter’s, interests, under the Will of the deceased, can be disregarded.

The Failure to Administer the Estate

88. The deceased died 7 years ago. Probate of the deceased’s Will has not been granted and the assets of the estate have not been collected or distributed. It is clear that the conduct of the executors named in the deceased’s Will has fallen short of the conduct required of executors.

89. During cross-examination, John stated that when he had attempted to obtain Probate, he had been prevented from doing so by Walter’s refusal to sign the necessary documents to enable this: T46.49 – T47.4. John also claimed that he had not been told by his then solicitor, that he could have applied for a grant of Probate in his own right: T47.13 – T47.16.

90. Other than the fact that there has been no grant of Probate to him alone (for which he must take responsibility), there has been no justification for the conduct of the executors. Whilst Mr Hallett, relatively recently, has renounced Probate, and Walter is outside the jurisdiction, John has failed to provide any evidence to justify not having done anything to properly administer the deceased’s estate, or to satisfactorily explain what has prevented him from seeking Probate, with leave to Walter to join in if he so desires, and from, otherwise, carrying out his duties as an executor.

91. It appears to me, that he has been content, until very recently, to allow the status quo to remain, which has enabled him to enjoy the occupation, and use, of the deceased’s interest in the Merriwa property.

The Statutory Scheme

92. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. I have done so in many other cases, but for the benefit of the parties, I shall do so again.

93. Usually, in cases such as the present, the Court must determine (not necessarily in the order set out below) whether:

1. The Plaintiff is an eligible person within the meaning of that term in s 57(1) of the Act;

2. The time for the making of the Plaintiff’s application should be extended;

3. The provision made for the maintenance, education and advancement in life of the applicant by the deceased's Will is adequate and proper in all the circumstances;

4. If the provision is inadequate, what provision, if any, ought to be made out of the estate of the deceased for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

94. These matters are not entirely distinct, but are related and overlap. For example, the strength of the substantive claim for provision is relevant to the exercise of discretion to make an order extending the time for the making of the application.

95. The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of ss 57(1) and 59(1)(a). It is only an “eligible person” who may apply to the Court for a family provision order. Relevantly, in this case, Alba relies upon the category of eligibility referred to in s 57(1)(c) of the Act. There is no dispute that she is a child of the deceased.

96. As stated earlier, Alba made her application almost 6 years after the death of the deceased. The Act, relevantly provides, in s 58(2) , the period within which the application must be made:

"An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown."

97. In Moore v Randall [2012] NSWSC 184 at [39], White J (as his Honour then was) wrote that the expression “sufficient cause” means “sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period.”

98. In Verzar v Verzar [2014] NSWCA 45 at [24], in the Court of Appeal, Meagher JA wrote that “[t]he sufficient cause or reason to which s 58(2) is directed is that for allowing an application to be made out of time”.

99. Clearly, permitting the Court to “otherwise order” was included in the Act to avoid the section becoming an instrument of injustice. Yet, “[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality”: Verzar v Verzar [2012] NSWSC 1380 at [98].

100. The equivalent section in similar UK legislation has been described as “a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules”: Re Salmon, Deceased [1981] Ch 167 at 175.

101. In Madden-Smith v Madden (Estate of the late Doris Linda Madden) [2012] NSWSC 146 at [23]-[24], Pembroke J put it more strongly:

“… Section 58(2) reveals a clear legislative intention to limit applications for family provision orders to those made within a defined, and strictly confined, period. An application is made by filing an originating process commencing proceedings in the registry of the court: Section 58(3).

The short time period imposed by section 58(2) reflects the judgment of parliament that the welfare of society in connection with the administration of deceased estates is best served by imposing a strictly limited time for making applications. This is not unreasonable. In most cases the putative claimant will be well aware of the testator’s death and the (allegedly) insufficient provision made for him or her. There will only occasionally be a good excuse for not making a claim within time. In fact, experience indicates that the deceased’s relatives usually pay uncommonly close attention to such matters. That is not to say that cases will not arise where, for legitimate reasons, a claimant is quite unaware of the death, or of his or her legal right to make a claim, and is unable to comply with the 12 month time limitation. In those circumstances, the statutory exception requiring ‘sufficient cause’ may well apply.”

102. In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[90], I set out the applicable legal principles relating to an application to extend the time, as follows:

“The decision of the court to extend time is a discretionary decision. Other than “sufficient cause being shown”, there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion.

The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]- [47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to.

The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim.

The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21].

In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of “unconscionable conduct” referred to above was “directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security”. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct.

As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail.

Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6].”

103. To refuse to make an order extending the time for the making of an application that is devoid of merit, or otherwise cannot succeed, would not visit an injustice on the applicant. As Keane JA wrote in Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159, at [31]:

“The appellants’ submission was that the probability that an application for provision out of the estate will ultimately succeed is a necessary, though not sufficient, condition of the grant of an extension of time. There is support for that view. In Re Terlier, deceased, Townley J said: ‘If it is improbable that the substantive application will succeed it seems idle to grant the extension.’ This statement was approved by Lush J in Re Walker, Deceased where his Honour went on to add that the improbability of success ‘may stem either from the condition of the estate ... or from the facts relevant to the [claimant's] claim, or from both ....’.”

Also see, Andre v Perpetual Trustees WA Ltd (as Executor of the Will of Barbara Helen Owen Stewart) [2009] WASCA 14 at [42].

104. Meagher JA noted in Verzar v Verzar [2014] at [33]-[35]:

“There are at least two respects in which the strength of the application sought to be made out of time may be relevant to whether there is ‘sufficient cause’ to extend the time for making it. The first is whether the application as made has sufficient prospects of success to justify an extension. That assessment should be of the application viewed at the time it is or is likely to be heard because of the provisions of s 59(1)(c) and (2)…

The second respect in which the strength of the application may be relevant is if allowing the out of time application to proceed would or may have the effect of improving the applicant’s position from that which would have obtained had the application been made in a timely manner. That is the consideration referred to by Tobias JA in Durham v Durham at [24], [37] when confirming the correctness of the approach adopted by the judge in that case and by Bryson J in Davison v Staley (unreported, Supreme Court of NSW, 21 August 1996)…

Because the assessment of adequacy of provision for proper maintenance, education and advancement in life is to be made at the time the Court is hearing the application (ss 59(1)(c) and (2)), when addressing this question it is necessary first to consider when the application would have been likely to have been heard if made in a timely manner and then to compare the position in that event with the position in fact, namely that the application has been made out of time. Ordinarily, this analysis would assume, as is usually the case and as happened in this proceeding, that the application for an extension of time and the application for substantive relief are made in one proceeding and dealt with in a single hearing. (That was not the case with applications for extensions of time made under the Testator’s Family Maintenance and Guardianship of Infants Act 1916: see De Winter v Johnstone [1995] NSWCA 120 at p 17 per Powell JA).”

105. As well as taking into account the reasonableness of the conduct of the applicant, it will also be necessary to have regard to the history of the proceedings, the conduct of the other parties, the nature of the litigation, and the consequences for the parties of the grant, or refusal, of the application for extension of time, “the size and nature of the estate, the position of the individual applicants, the rightful expectations of those already interested under the will, and, to some extent at least, the importance that there be some finality and certainty in the administration of a deceased person’s estate”: Harrison v Harrison [2011] VSC 459 at [292].

106. Also relevant to the present case, is what was said in Mansfield v Mansfield [2003] WASC 214 at [65]:

“The authorities also show, as in Young v Kestel, that in some circumstances a failure to make an application under the Act in the prescribed time may be explained and justified by a lack of information in the hands of an applicant. A lack of information may support the view that the applicant was not in a position to make a responsible decision about whether or not to institute proceedings under the Act.”

107. Likewise, an applicant who is under a reasonable misapprehension as to the extent of his, or her, interest under the deceased’s Will, provides a sufficient reason explaining the delay in commencing proceedings: In re Marland (decd) [1957] VR 338.

108. Although in another context, the High Court said in Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475:

“… it is a mistake to attempt to reduce the expression ‘sufficient cause’ to a closer or more rigid definition than the legislature has chosen to provide. The words no doubt are concerned with the justice of the case. There must be some positive reason for concluding that as between the parties it would be just to extend the period for giving notice. Fault on the part of the claimant in failing to give notice... must be an element affecting the justice of extending the time and so on the other side must be the prejudice which the nominal Defendant has or may have suffered because of that failure.”

109. As I wrote in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 at [117]:

“Ultimately, justice is the paramount consideration in determining whether to extend the time for making an application…”

234. One cannot consider the terms of the deceased’s Will on its own. One must consider many other facts. As Basten JA wrote in Chan v Chan at [22], the Court must remember:

“A significant set of factors in many cases is that identified as “the financial resources (including earning capacity) and financial needs, both present and future, of the applicant…”. However, it is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant’s needs required determination of the size of the estate and the claims of others on the beneficence of the testator.”

242. John and Walter are the only other persons who have any relevant claim on the deceased’s bounty. Only John has raised his financial and material circumstances and his competing claim upon the bounty of the deceased. The Court must not ignore his claim as a beneficiary, being the principal chosen object of the deceased’s testamentary bounty. I am satisfied that his competing claim is founded upon his significant contributions to the deceased, and to the estate property, during the deceased’s lifetime. These matters are relevant on the issue whether the provision made for Alba is inadequate.

243. This is a case of an applicant adult child who has lived quite independently of her parent, the deceased, for many years, but who is nonetheless, in straitened circumstances.

244. It is to be noted, also, that the Plaintiff has, for some time, whilst receiving an income by way of pension, supplemented by casual work, been living within her means. The Court is entitled to take into account pension benefits as part of the resources of the Plaintiff, and to consider that they will continue to be received in whole or in part. In addition, the Plaintiff has the continuing financial resource of housing accommodation provided to her by Housing NSW.

245. However, I must also consider the fact that John has remained living on the Merriwa property and appears to have treated it as his own since the death of the deceased. This is a substantial benefit that he has received since the death of the deceased.

246. Consistent with prevailing community standards, I am satisfied for the purposes of s 59(1)(c) of the Act, that at the time when I am considering the application, adequate provision for the proper maintenance or advancement in life of Alba has not been made by the Will of the deceased.

247. I then turn to the provision, if any, that ought to be made for Alba. Because of the size of the estate, and the competing claim of John, any provision for her, must be extremely modest.

248. I do not accept the submission of counsel that Alba should receive a lump sum of $50,000. The estate is simply not large enough to enable that amount to be regarded as “adequate and proper” in all the circumstances. It also does not give due regard to the deceased’s testamentary intentions as expressed in the Will and to the significant competing claim of John.

249. In my view, a lump sum of $17,500 should be made for Alba out of the deceased’s estate. This lump sum will enable her to pay off her debts and leave an extremely modest capital sum for the exigencies of life.

250. Whilst it is true that Alba has not provided an explanation for not having commenced proceedings immediately upon, or even shortly after, seeing a solicitor, by that stage, the time for making the application had well and truly expired. Furthermore, in ending the retainer of his prior solicitors, without appointing someone to act for him, or otherwise acting for himself, John did not assist in enabling all of the information necessary to enable Alba to consider whether to make a claim during this period, to be made available.

251. John’s conduct, as an executor, in doing nothing to administer the estate until about 6 years after the death of the deceased, does not assist him in the Court’s consideration of Alba’s delay in commencing proceedings. In addition, in that period, he did not act even-handedly between beneficiaries. To the contrary, it seems to me that he has treated the deceased’s estate, from the date of death, as his own, to do with as he pleases, despite the fact that it was not his property in law or given to him, alone, under the terms of the deceased’s Will.

252. Having found that Alba has a reasonable claim, and should receive some provision, as a matter of justice, I am of the view that sufficient cause has been shown for the making of her application. Thus, the time for the making of her application should be extended to the date of the filing of the Summons.

253. Thus, the Court:

1. Orders, pursuant to s 91 Succession Act 2006 (NSW), that administration in respect of the estate of the deceased, Nella Maria Penninger, be granted to the Plaintiff, for the purposes only of permitting her application for a family provision order to be dealt with.

2. Orders, sufficient cause having been shown, that the time for the making of the Plaintiff’s application be extended until 25 July 2016, the date of the filing of the Summons.

3. Orders, having found that the Plaintiff is an eligible person, and that adequate provision for her proper maintenance or advancement in life has not been made for her in the Will of the deceased, in lieu of the provision made for her in the Will of the deceased, that the Plaintiff receive a lump sum of $17,500 out of the estate of the deceased.

4. Orders that no interest is to be paid on the lump sum, if that lump sum is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898 (NSW), on unpaid legacies, is to be paid from that date until the date of payment of the lump sum.

5. Orders that the Plaintiff’s costs, calculated on the ordinary basis, and the Defendant’s costs, calculated on the indemnity basis, of the proceedings, be paid out of the estate of the deceased.

6. Orders the lump sum payable to the Plaintiff, any interest accrued thereon, and any costs of both parties, constitute a charge over the Merriwa property until paid in full.

7. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to and implementing the orders made herein.

8. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005.

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Decision last updated: 06 July 2017