Perrott v The Public Trustee - [2012] WASC 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PERROTT -v- THE PUBLIC TRUSTEE [2012] WASC 365

CORAM: MASTER SANDERSON

HEARD: 17 SEPTEMBER 2012

DELIVERED : 10 OCTOBER 2012

FILE NO/S: CIV 1575 of 2012

BETWEEN: PAMELIA CHRISTINE PERROTT
First Plaintiff
JOHN RICHARD KNIGHT
Second Plaintiff
MARCUS JAMES KNIGHT
Third Plaintiff
AND
THE PUBLIC TRUSTEE as Administrator of the Estate of JOHN REYNOLDS KNIGHT
First Defendant
HELEN PATRICIA ENGLISH as Beneficiary of the Estate of JOHN REYNOLDS KNIGHT
Second Defendant
TAMAGEN LEE-STEERE as Executrix of the Estate of SHIRLEY MARGARET KNIGHT
Third Defendant
TAMAGEM LEE-STEERE as Beneficiary of the Estate of SHIRLEY MARGARET KNIGHT
Fourth Defendant

Catchwords:

Inheritance (Family and Dependents Provision) Act 1972 (WA) - Application for extension of time to bring application - Delay of almost 30 years - Turns on own facts

Legislation:

Inheritance (Family and Dependants Provision) Act 1972 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr H O Moser
Second Plaintiff            :     Mr H O Moser
Third Plaintiff               :     Mr H O Moster
First Defendant             :     Ms N H Pierce
Second Defendant         :     No appearance
Third Defendant           :     Dr C N W Kendall
Fourth Defendant          :     Dr C N W Kendall

Solicitors:

First Plaintiff                :     Hewett & Lovitt
Second Plaintiff            :     Hewett & Lovitt
Third Plaintiff               :     Hewett & Lovitt
First Defendant             :     Public Trustee (WA)
Second Defendant         :     No appearance
Third Defendant           :     Murfett Legal Pty Ltd
Fourth Defendant          :     Murfett Legal Pty Ltd

Case(s) referred to in judgment(s):

Bondelmonte v Blanckensee [1989] WAR 305
Clayton v Aust (1993) 9 WAR 364
Duncan v Perpetual Trustees WA Ltd (Unreported, WASC, Library No 940103, 4 March 1994)
Fisher v Fisher (Unreported, WASC, Library No 970494, 1 October 1997)
Triplett v Public Trustee [2009] WASC 64

MASTER SANDERSON: This is the plaintiffs' application for an extension of time to bring proceedings under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act). John Reynolds Knight (the deceased) died on 15 January 1982. On 16 March 1982 an administration order was made in favour of the Public Trustee. This application was brought on 4 April 2012. The time limited for bringing an application under the Act is six months. In an appropriate case it can be extended. The plaintiffs in this case seek an extension of almost 30 years.
The relevant facts were not in dispute. The deceased married Nancy Knight in 1942 and they had four children. The second plaintiff was born on 5 October 1942. He is now almost 70 years of age. The second defendant was born 28 July 1944 and is now aged 68 years. The third plaintiff was born on 15 March 1950 and is now aged 62 years. The first plaintiff was born on 28 July 1954 and is now aged 58 years. They lived and worked on a farm know as Walden just out of Mount Barker.
In November of 1958 Nancy executed a will. Her estate was divided between her children with the income from her estate to go to the deceased during his lifetime. Nancy died in June 1966. After Nancy's death the deceased sold the farm and purchased a property at 18 Bostock Road, Nedlands. That became the family home. From time to time each of the children lived in the home and eventually all of them moved out.
In 1972 the deceased married Shirley Margaret Knight. Shirley moved into Bostock Road and lived in the home with the deceased until the date of his death. Shirley died in June of 2011.
The deceased's will was homemade. It left certain legacies to his children but importantly it contained the following clause:
It is my wish that my wife make provision in her will to leave my children the value of the Bostock Road house upon her death.
By its terms the deceased's will left the Bostock Road property to Shirley. It was common ground the wording of the deceased's will was not such as to provide only a life interest to Shirley. It had been given to her absolutely. Shirley made a will in November of 2010. Probate of that will was granted to the third defendant on 29 September 2011. The Bostock Road property passed to the fourth defendant.
Clearly the plaintiffs are disappointed the Bostock Road property did not pass to them as was intended by their father. What they now seek to do is have provision made for them out of their father's estate. That is the only way they might possibly obtain part of the proceeds of their father's estate which they say should have passed to them on Shirley's death.
There was no dispute between the parties as to the applicable principles to be applied in a case such as this. By reference to Clayton v Aust (1993) 9 WAR 364 counsel for the plaintiff expressed the applicable principles as follows:
(a)The discretion is unfettered, but must be exercised judicially and in accordance with what is just and proper;
(b)The plaintiff bears the onus of establishing sufficient grounds to take the case out of the general rule and depriving those who are protected by its benefits;
(c)The time limit is a substantive provision laid down by the Act itself and more than a procedural time imposed by the rules of court. The burden on the applicant is no triviality. This means the plaintiff must make out a substantial case for it being just and proper for the court to exercise its statutory discretion;
(d)All circumstances must be considered. One significant factor is the length of the delay and the reasons for it and also the promptitude with which, by letter before action or otherwise, the claimant gave warning of the proposed application to the defendant;
(e)It is material whether negotiations have commenced within time but not concluded once the time limited as elapsed;
(f)It is relevant whether the estate has been distributed at the time the executor has notice of the action;
(g)It is also relevant whether any beneficiary has changed his or her position in reliance on a distribution;
(h)It is relevant whether the claimant has an arguable case, but no detailed consideration of the merits of the case is required at the stage of the hearing of the application for leave to file out of time is made.
Counsel for the plaintiffs submitted in this case the considerations could be reduced to three main issues - the merits of the claim; the length of the delay and the explanation for the delay; and the prejudice suffered by the beneficiaries.
In my view the last of those can be put to one side. There is no evidence the major beneficiary - that is the fourth defendant - would suffer any prejudice by the granting of the extension. In fact no evidence at all was filed on behalf of any of the defendants.
Before dealing with these two points I should say something of the submission made by counsel for the plaintiffs early in his address which seemed to inform his approach to the application. Counsel submitted this was a case where the deceased had intended the Bostock Road property would pass to his children and the granting of an extension would allow that to occur. In other words allowing the plaintiffs to bring an application under the Act would be giving effect to the manifest intention of the testator.
With respect there is no basis for such a submission. The wishes of the testator, save in very limited circumstances, are always irrelevant to the determination of an application under the Act. If a plaintiff is to succeed it must be demonstrated the will of deceased failed to make adequate provision for the proper maintenance, support, education or advancement in life of the claimant. Any suggestion the Act can be used in someway to rewrite the will of the deceased in a way it might be thought the deceased intended to dispose of his property is simply wrong.
It is convenient to start with the delay and the explanation for the delay. Thirty years is an extraordinary period of time. Counsel for the plaintiff helpfully catalogued all of the cases where there has been a significant delay. Because the facts of the cases differ so widely they are not of great assistance. However, it is worthy of note in Duncan v Perpetual Trustees WA Ltd (Unreported, WASC, Library No 940103, 4 March 1994), Master Bredmeyer granted leave after a delay of 24 years. The master found the delay had been explained by the applicants not having been advised of their legal position correctly, this notwithstanding they had been parties to Inheritance Act litigation with respect to the same estate earlier. In the same decision the master reviewed a number of cases concerning leave applications where the applicants were unaware of their legal position and hence did not make the application.
In Fisher v Fisher (Unreported, WASC, Library No 970494, 1 October 1997) I did grant leave after a delay of 12 years. This was based on a lack of knowledge by the applicant particularly of the change in trust structure made against his interests.
Generally speaking decided cases do not provide much assistance.
The plaintiffs here were aware from the date of the death of their father the property had been left to Shirley absolutely and that she did not just have a life interest. They must also have been aware for the property to eventually pass to them Shirley would have to leave it to them in her will. There is nothing in the evidence to suggest anything to the contrary.
It is also clear the plaintiffs enjoyed a good relationship with Shirley. The marriage between Shirley and the deceased was a happy one and they in turn got on well with Shirley. They had no reason to believe she would not comply with their father's wishes and leave the Bostock Road property to them. It was not until 2010 they first became aware of the prospect they would not be left the property in Shirley's will. They had a solicitor write to Shirley asking about the contents of the will and the disposition of the Bostock Road property. Shirley declined to provide any information. By that stage Shirley was elderly and frail and the plaintiffs did not wish to cause her distress by pursuing the matter. It was only when they finally discovered the effect of Shirley's will they issued these proceedings.
During the course of his submissions counsel for the defendants criticised the plaintiffs for their failure to act in 1982. But it is easy to see why they took no steps. Shirley was a grieving widow who had lost a loved husband. They all enjoyed a sound relationship with her and had no reason not to trust her. Her expressed respect and affection for her husband led them to believe she would comply with his wishes. She never said or did anything to suggest otherwise. By the time the prospect of the Bostock Road property not passing to them in her will emerged she was too hold and frail for the plaintiffs in good conscience to proceed.
This is one of those cases where the motives of the plaintiffs were pure and entirely understandable.
In considering the merits of the claim it is not appropriate to undertake a detailed assessment of the merits of any claim which may be made. As I said in Triplett v Public Trustee [2009] WASC 64, I think consistently with the authorities, an applicant must show that there is an arguable case. To go beyond that is inappropriate.
As Malcolm CJ said in Bondelmonte v Blanckensee [1989] WAR 305, 307 the Act requires a two‑stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. That is sometimes called the jurisdictional question. If that question is answered in the applicant's favour then the court has to decide what provision ought be made under the deceased's estate for the applicant. The jurisdictional question is to be determined as at the date of death of the deceased. The second stage is to be determined as at the date of the application.
Under the terms of the deceased's will Shirley received all his personal effects, the property at Bostock Road and the sum of $5,000. The Bostock Road property was valued at $125,000. Each of the children received from their father's estate an amount of $12,750. In addition to that they received an amount of $28,000 which was the residue of the estate of their mother. So in total then each of the deceased's four children received just over $40,000 on his death.
As at the date of the death of the deceased the first plaintiff was 28 years of age. She had recently married and purchased a house in Floreat Park for the sum of $60,000. She had a mortgage in an amount of about $40,000. She was not working and her husband had recently commenced employment with his family company 'on a modest salary'.
The second plaintiff was aged 40 at the date of death of the deceased and was the owner of a small cabinet making business from which he received an income of approximately $22,000. He had a business overdraft with the Commonwealth Bank of approximately $30,000. He had also recently purchased his father's 50% share of a property in Willetton for $12,000. He had a housing loan of $16,000 which had been used to build on the property in Willetton.
The third plaintiff was aged 32, recently divorced and living alone. He had no dependent children and was receiving an income of $16,000 gross per year as an employee of the University of Western Australia. He owned a property in Mount Hawthorn which he purchased in 1975 for $17,500. He had a defence service loan in an amount of $15,000 and at the date of death of the deceased he put his equity in the home at around $5,000.
Shirley's position is unclear. As I have said no evidence was filed on behalf of the defendants. What is known is Shirley owned a business and real estate on Stirling Highway which was sold for $400,000 about 1987. The plaintiffs say Shirley was financially independent of the deceased during the marriage and they say she told them she inherited $500,000 from her father in the 1970s.
It was the defendants position the plaintiffs could not have satisfied the jurisdictional test had they brought proceedings in 1982. Each of them had been provided for in their father's estate and when what they received from their mother's estate was added in they were comparatively well off. The first plaintiff for instance had sufficient to pay off the mortgage on a newly acquired home. Her husband was working and there were no other pressing commitments. Much the same comments could be made in relation to her siblings. In all, none of the children, all of whom were adults, had a demonstrated need.
Moreover Shirley and the deceased had lived in the Bostock Road property for 10 years. Shirley was surely entitled to some provision from the deceased's estate. She was a relatively young woman when the deceased died and could be expected to have lived in the Bostock Road property for many years.
In my view the plaintiffs' case is arguable. It is certainly not a strong case. They were all provided for in the deceased's will and all were reasonably well placed. None had a pressing need. But I could not conclude their case was hopeless. It might well fail but it could not be regarded as hopeless.
It is a matter then of weighing in the balance the two competing considerations. On the one hand the plaintiffs arguable, if weak, case; on the other hand the extraordinary length of the delay with the explanation for that delay.
In the end I am satisfied this is not a case for a grant of an extension of time. The overwhelming factor here is the length of the delay. In my view 30 years is just too long. History cannot now be rewritten. So much has happened in the intervening time. Shirley lived in the Bostock Road property for 30 years. During that time she must have maintained the property even if she did no more than repaint or recarpet. With the flux of time the character of her occupation of the premises changed. It was in law always her property. She had lived there so long it would now be unjust to allow an interference with those property rights. I accept as I have been at pains to indicate above the plaintiffs delayed for the purest of motives. However the passage of time makes pursuit of any action unreasonable. In reaching that conclusion I have of course considered the plaintiffs have an arguable if weak case. But that when weighed in the balance cannot off‑set the length of the delay.
The application will be dismissed. The plaintiffs should pay the defendants' costs of the application.