Re Hinton; Carter v Ryan
[2025] VSC 666
•29 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2024 05512
IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)
- and -
IN THE MATTER of the Will and Estate of MARGARET JEAN HINTON, deceased
BETWEEN:
| DENYSE DEIDRE CARTER | Plaintiff |
| v | |
| TRACEY LOUISE RYAN (who is sued in her capacity as Executor and Trustee of the Estate of MELVILLE LOWELL COURTNEY HINTON, deceased, formerly Executor of the Estate of MARGARET JEAN HINTON, deceased) | Defendant |
---
JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 August 2025 |
DATE OF RULING: | 29 October 2025 |
CASE MAY BE CITED AS: | Re Hinton; Carter v Ryan |
MEDIUM NEUTRAL CITATION: | [2025] VSC 666 |
---
PRACTICE AND PROCEDURE – Civil Procedure Act 2010 (Vic), ss 62, 63 and 64 – Whether claim enjoys a real prospect of success – Proceeding dismissed.
PART IV OF THE ADMINISTRATION AND PROBATE ACT1958 (VIC) – Claim for further provision made out of time – Time for assessing adequacy of provision – Summary judgment where failure to establish jurisdiction where provision adequate – Application to extend time under s 99.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Burnett | Wightons Lawyers |
| For the Defendant | Ms U Stanisich | Contested Will and Estate Lawyers |
TABLE OF CONTENTS
Background
Legal principles relating to summary judgment
Sections 62, 63 and 64 of the CPA
Facts relevant to the claim
Does Denyse’s claim for provision enjoy a real prospect of success
The relevance of promises made by a testator
Time for assessing the adequacy of provision
Lack of need
Should the proceeding be permitted to continue under s 64 of the CPA
The application to extend time
Disposition
HER HONOUR:
The defendant applies by summons filed 8 April 2025 for orders dismissing the proceeding under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) on the ground that the proceeding does not enjoy any real prospect of success. The defendant also seeks orders for the plaintiff to pay her costs.
For the reasons elaborated below, I will dismiss the proceeding and order that the plaintiff pay the defendant’s costs of the proceeding.
Without intending any disrespect to any person, I have used first names in this judgment for clarity.
Background
Margaret Jean Hinton (‘Margaret’) died on 28 February 2012 aged 97. She was survived by her two children, namely, the plaintiff, Denyse Deidre Carter (‘Denyse’), and her brother, Melville Lowell Courtney Hinton (‘Melville’).
When she died, Margaret left a will dated 3 July 2007 (‘Margaret’s will’). Melville obtained a grant of probate in respect of Margaret’s will on 21 November 2012. By her will, Margaret appointed Melville as her executor and gifted all of her real estate to him, with the residuary estate to be divided equally between Denyse and Melville.
The filed inventory shows that, at the time of her death, Margaret’s estate comprised:
(a)the real property located at 150 Hintons Road, Streatham (‘Hintons Rd Property’), valued at $193,000;
(b)the real property located at Hintons Road, Lake Wongan (‘Lake Wongan Property’), valued at $197,000;
(c)a two-thirds interest in the real property located at 3119 Eurambeen-Streatham Road, Streatham (‘Farm’), valued at $802,666; and
(d)a Commonwealth Bank Term Deposit (‘Term Deposit’), totalling $1,154,910.25.
In accordance with the terms of Margaret’s will, the Hintons Rd Property and the Lake Wongan Property were transferred to Melville and the Term Deposit was divided equally between Melville and Denyse. However, for reasons unknown, the two-thirds interest in the Farm was never transferred to Melville during his lifetime. This means Margaret’s estate has not been fully distributed.
Melville was already the owner of the other one-third interest in the Farm. He died on 30 March 2024 leaving a will dated 1 October 2021 (‘Melville’s will’). By his will, Melville appointed the defendant as executor, gifted the Hintons Rd Property to Denyse, and left the residue of his estate to Robert John Hart. Mr Hart is not related to Melville or Denyse. By reason of her appointment as Melville’s executor, the defendant has assumed the role of executor of Margaret’s estate which had not been fully administered by Melville prior to his death.
The Hintons Road property has been distributed to Denyse in accordance with Melville’s will.
On 15 October 2024, Denyse commenced this proceeding by which she makes an out of time application for further provision from Margaret’s estate pursuant to Part IV of the Administration and Probate Act1958 (Vic) (‘Act’).[1]
[1]The application is made pursuant to the legislation as it existed at the date of death, being the Administration and Probate Act 1958 (Vic), as at 28 February 2012. At the time (as is also the case now), a claim for further provision had to be made within 6 months of the grant of probate, i.e. by 21 May 2013.
Legal principles relating to summary judgment
Sections 62, 63 and 64 of the CPA
The defendant makes application for summary judgment under s 62 of the CPA on the ground that Denyse’s claim for family provision against Margaret’s estate has ‘no real prospect of success’. Subject to s 64, the Court may give summary judgment under s 63 of the CPA if it is so satisfied.
The test under s 63 of the CPA is whether the claim has a ‘real’ as opposed to a ‘fanciful’ chance of success.[2] The authorities urge caution, and that regard be given to the overarching purpose under the CPA, when exercising the power to terminate a proceeding summarily, given that, in consequence, the party against whom summary judgment is given will be deprived of the chance to pursue their claim or defence.[3] As such, the Court should only exercise the power where it is clear that there is no real question to be tried.[4]
[2]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 39 [29] (Warren CJ and Nettle JA) (‘Lysaght’).
[3]Lysaght 40 [35] (Warren CJ and Nettle JA), 42 [40]–[42] (Neave JA).
[4]Lysaght 40 [35] (Warren CJ and Nettle JA).
Even if there is no real prospect of success of the claim, under s 64 of the CPA, the Court may nevertheless decline to give judgment summarily if:
(a)having considered the circumstances of the case, it determines it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
An application for summary judgment under the CPA must be made by summons supported by an affidavit verifying the facts of the claim and stating that it is the belief of the deponent that the claim has no real prospect of success. As plaintiff, Denyse may ‘show cause against the application by affidavit or otherwise to the satisfaction of the Court.’[5] In this case, Denyse has filed affidavits affirmed on 31 January and 10 June 2025.
[5]Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 22.19.
It is rare, but not impossible, for claims made under Part IV of the Act to be summarily dismissed. By their nature such claims typically involve extensive factual disputes and, where the statutory conditions are met, the evaluation of a testator’s moral duty and the exercise of a broad discretion.[6] However, before considering whether to exercise the discretion under Part IV of the Act (as it existed at the date of Margaret’s death) to make provision, there are two jurisdictional questions that must be answered. These are, first, whether there is a responsibility to make provision for the proper maintenance and support of the claimant and, second, whether the will makes adequate provision for the claimant. Where the facts relevant to these questions are simple or undisputed, they can be answered in advance of trial, and, depending on how they are answered, permit of summary determination of the whole claim.
[6]Jackson v Newns [2011] VSC 32.
Facts relevant to the claim
The defendant accepted that in considering the application for summary judgment, Denyse’s evidence should be accepted and taken at its highest.[7] Adopting that approach, the following factual account is drawn from Denyse’s filed affidavits.
[7]Webster v Lampard (1993) 177 CLR 598, 604 (Mason CJ, Deane and Dawson JJ).
(a)As a child, Denyse lived with her parents in Streatham and helped with the family’s farming activities.
(b)Denyse moved away from Streatham after her marriage to John Carter for a period of around 10 years, returning to Streatham with her husband after devastating bushfires passed through the area in 1977. Thereafter, she and her husband entered into a share farming arrangement with her parents, including initially assisting to rebuild damaged farm buildings. During this time, for approximately two years, they lived on the Farm. The share farming arrangement continued for about 14 years until Denyse and her husband moved to Queensland.
(c)Melville had left Streatham after he finished school, but returned to live on the Farm whilst Denyse lived in Queensland. Margaret used to take care of Melville because she believed that, although he had never been diagnosed with any condition which explained it, he was not entirely capable of taking care of himself.
(d)Denyse and her mother shared a close, loving and caring relationship. She visited regularly when living interstate, and also when her mother moved into aged care. Denyse acted as Margaret’s power of attorney.
(e)Although Denyse and her husband received an income from the share farming arrangement, it was lower than the level of income that would ordinarily be received under a standard, arms-length arrangement. Denyse’s parents always assured her she would be taken care of financially and so she never felt the need to request wages or a higher income from the share farming. Denyse and her husband (who was a qualified builder) provided general maintenance, improvements and upkeep to the farm properties and buildings, including at the Farm when they resided there.
(f)When Margaret’s will was drafted, Margaret assured Denyse that it was being drafted in a way to allow Melville to continue to run the family farming business. Margaret reassured Denyse that while Melville would be gifted all the real property, he would then gift it to Denyse upon his death. Melville was present during the conversation in which that assurance was given, and he also assured Denyse that he would do as Margaret had stated.
(g)Denyse did not bring her provision claim within 6 months of the date of the grant of probate of Margaret’s will because of the promises made to her, specifically by Melville, to transfer the real property assets to her upon his death.
(h)Denyse’s parents would often tell Melville and Denyse that it was important for the farm to stay within their family as members of the family had worked hard all of their lives to secure the farming properties and business. The values of hard work and the need for the family to preserve the farm were emphasised to Melville and Denyse when growing up.
(i)When Denyse’s parents drafted their wills they had conversations with her and Melville emphasising the need to retain the property in the family. They repeated the position that the real estate would go to Melville as the eldest male child, so he could live and work on the land, with it to pass to Denyse on his death.
(j)Melville said to Denyse and his mother that he would make sure that the farm was left to Denyse. After Margaret’s death, he told Denyse that the inheritance should be kept in the family and she was comforted by his words. Denyse did not bring a claim against Margaret’s estate after her death because she relied on ‘the promise and our family arrangement’.[8]
(k)Denyse was unaware of the contents of Melville’s will until after he passed away. Denyse says her claim is ‘purely due to the breach of promises made by my family as I relied on our mutual understanding and family arrangements.’[9]
Does Denyse’s claim for provision enjoy a real prospect of success
[8]Affidavit of Denyse Deidre Carter affirmed 10 June 2025, [17] (‘Second Denyse Affidavit’).
[9]Second Denyse Affidavit [7].
The relevance of promises made by a testator
Denyse contends that Margaret was obliged to make adequate provision for her by reason of the promises made to Denyse by Margaret prior to her death. The promises alleged are to the effect that while Melville would receive the real property under Margaret’s will, he would then gift those real properties to Denyse under his will. Denyse contends these promises re-enforced earlier promises or statements of intention conveyed from time-to-time by her parents jointly and also by Margaret alone to the effect that the farming-related properties needed to be kept in the family.
The parties accept that promises made and expectations raised by testators are relevant to the determination of what is adequate provision for a Part IV claimant, especially where the claimant can demonstrate they have relied on the promises made to their detriment. The concept of a moral duty to make adequate provision is informed by consideration of the requirements of conscionable behaviour similar to an equitable estoppel. In the New South Wales Supreme Court decision of Vukic v Luca Grbin; Estate of Zvonko Grbin (‘Vukic’)[10], Brereton J, having found that an equitable estoppel would entitle the plaintiff, a daughter of the deceased, to a two-thirds interest in a real property asset in NSW, held that the same promises (and the promisee’s detrimental reliance upon them) informed the testator’s moral obligation to make adequate provision for his daughter. He concluded that the plaintiff’s reliance upon the expectation of inheritance, encouraged as it was by the deceased, and the provision made for the other beneficiaries meant that:
community standards would have required no less than that the Deceased fulfil the expectation which he had created, by leaving a three-quarter interest in the [real property] to the Plaintiff.[11]
In that case, his Honour held that the provision made for the plaintiff was inadequate by reference to the deceased’s promises.
[10][2006] NSWSC 41, [38] (‘Vukic’).
[11]Vukic [40].
Denyse submits that Margaret’s (and Melville’s) promises created an expectation in her that she would eventually receive all of the real property assets from Melville. She submits her expectations based on those representations are relevant to assessing the adequacy of the provision made for her by Margaret’s will. Denyse submits that her claim is ‘on all fours’[12] with the case of Vukic, and has a real prospect of success at trial, and so should not be determined summarily.
[12]Transcript of Proceedings, Re Hinton; Carter v Ryan (Supreme Court of Victoria, S ECI 2024 05512, Goulden AsJ, 7 August 2025) T16.21-T16.22.
In my view, in the circumstances of this case, and accepting Denyse’s evidence at its highest, there is no unconscionable behaviour by Margaret which can alter the assessment of the adequacy of the provision in the way that is contended for by Denyse. The absence of that critical element cruels any real prospect of success of her claim at trial. Even accepting that the promise allegedly made by Margaret that Melville would do certain things was one Denyse could ever reasonably rely upon (which is seriously doubted), Margaret fulfilled her part of that promise – by her will she gifted all of the real property to Melville. There is no unconscionable conduct on Margaret’s part as she has not resiled from the content of that promise. There is similarly no reasonable expectation in Denyse’s mind that is defeated by Margaret having gifted the real property in exactly the manner she said she would. Regardless, I accept the defendant’s submission, made in the hearing, that Margaret’s representations were not promises at all – at most they were an expression of her wishes for the purposes of keeping the farming properties within her family, but they relied entirely on Melville’s actions, which she could not control or promise to control. Any unconscionability, if it exists, must be in Melville’s actions in failing to comply with the promises he allegedly made to Denyse to gift the real property to her by his will. His subsequent conduct cannot affect the conduct of Margaret as testator. I accept the defendant’s submission that it is misconceived to bring a claim for further provision against Margaret’s estate in the circumstances alleged.
Time for assessing the adequacy of provision
Denyse received half of the Term Deposit following Margaret’s death (that is, in or around 2012) a sum totalling around $577,455.[13] Denyse’s case will be that this provision was inadequate to discharge Margaret’s moral obligation to her. Indeed, in her second affidavit Denyse states ‘…it does not effectively discharge my mother’s moral obligation to me, especially when her promises were not meant to take effect until after Melville’s death.’[14] This statement highlights a misconception in the argument made on behalf of Denyse. Using Melville’s conduct in failing to bequeath to her the real property after his death as Margaret wished (and Melville promised), Denyse is now asking the Court to re-assess whether Margaret breached her moral obligation by reference to facts and circumstances that have transpired many years later and without regard to Margaret’s primary obligation to Melville.
[13]This is half the value of the Term Deposit as disclosed in the inventory, and so does not take into account any estate expenses which may have reduced the amount of the distribution.
[14]Second Denyse Affidavit [22].
The authorities establish that the time for assessing the adequacy of provision is the date of death of the deceased. The exercise involves consideration of the facts then existing as well as those that might then be reasonably foreseen.[15] The facts as they transpired many years later are not relevant to consideration of adequacy. At the date of death, Denyse had her own home and financial resources. The Farm and real estate were devised to Melville who was living and working on the Farm and who the deceased had believed was not entirely capable of taking care of himself.[16] These and other then existing matters informed the extent of Margaret’s moral obligation and whether the provision made was adequate to discharge it. The adequacy of the provision cannot now be reassessed as if Melville did not survive the deceased. I also accept the defendant’s submission that Denyse’s preparedness to wait until Melville’s death underscores the adequacy of the provision made for her by Margaret at the time of her death. In this regard Denyse states in her second affidavit ‘[a]s I relied on the promise and family arrangement, I did not see the need to make a claim against my mother’s estate at the time and jeopardise my relationship with [Melville]’.[17]
[15]Prosser v Twiss [1970] VR 225, 232, quoted in Litchfield v Smith & Tingate [2010] VSC 466, [25].
[16]Affidavit of Denyse Deidre Carter affirmed 31 January 2025, [46].
[17]Second Denyse Affidavit [17].
Lack of need
The defendant submits that Denyse lacks need because she has no dependents and no liabilities. Denyse has given evidence in her affidavits about her financial position including anticipated health expenditures given her age and previous health issues. Given that I am not satisfied that Denyse has any real prospect of succeeding in making her claim for provision based on the promises allegedly made to her by Margaret, I do not need to give any further consideration to this issue.
Should the proceeding be permitted to continue under s 64 of the CPA
Neither party made any submission about whether it would be appropriate to permit this proceeding to continue to trial under s 64 of the CPA. In my view, there is nothing about the circumstances of the case that would justify the making of such an order.
The application to extend time
Though the application for an extension of time does not need to be determined given the orders I will make under s 63 of the CPA, I make the following observations regarding that application. To bring this claim over 12 years after the expiry of the statutory period, Denyse must be granted an extension of time. The power to extend time under s 99 of the Act is discretionary. The factors that are usually relevant to the Court’s determination of whether to exercise the discretion include, amongst others, the sufficiency of the explanation for the delay, any prejudice to the beneficiaries, any unconscionable conduct by the applicant and whether there is an arguable case by the applicant for the extension.
In so far as the applicant for the extension of time, here Denyse, must demonstrate they have an arguable case, the considerations closely resemble those considered in a summary judgment application. For the reasons articulated above, I do not consider that Denyse has an arguable case for provision. Furthermore, the explanation that is given for the delay in making application, is the reliance by Denyse on Margaret’s and Melville’s promises, which she did not become aware would not be fulfilled until she learned of the contents of Melville’s will. She did not make a claim until realising that a part of Margaret’s estate remained undistributed and seeking legal advice. Also for the reasons given above, the alleged promise made by Margaret was not one that reasonably could have been relied upon by Denyse, relating as it did to what Melville would do with the real property assets after receiving them. I also hold concerns about the issue of prejudice given the effluxion of time and the passing of various witnesses who may have been able to give evidence in relation to the provision claim if made earlier.
Disposition
For the reasons set out in this ruling, I will dismiss the proceeding in accordance with s 63 of the CPA on the basis that it does not enjoy a real prospect of success.
I will order that Denyse pay the defendant’s costs of the proceeding on the standard basis, to be taxed in default of agreement.
0
7
0