Re Hinton; Carter v Ryan - [2025] VSC 666

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Hinton; Carter v Ryan

Details

AGLC: Re Hinton; Carter v Ryan [2025] VSC 666
Case: [2025] VSC 666
Decision Date: 29 October 2025

CaseChat Overview and Summary

In the matter of Re Hinton, Carter filed an application seeking to have further provision made out of the estate of Hinton, deceased. The application was brought against Ryan, the executor of the estate. The dispute centred around whether the estate provided adequate provision for Carter, Hinton’s daughter, under the Administration and Probate Act 1958 (Vic). Carter argued that the provision made by the estate was inadequate and sought additional financial support. The case was heard in the Supreme Court of Victoria.

The primary legal issue the court needed to address was whether Carter's claim had a real prospect of success. Under sections 62, 63, and 64 of the Civil Procedure Act 2010 (Vic), the court had to consider whether the claim was frivolous or vexatious, or whether it was made in bad faith. Additionally, the court needed to determine if the provision made out of the estate was adequate and whether the application for further provision was made out of time. The executor, Ryan, contended that the provision was adequate and that Carter's application was both untimely and without merit.

The court examined the facts and concluded that Carter's claim did not have a real prospect of success. It found that the provision made out of the estate was adequate, and that Carter's application for further provision was made out of time. The court further held that extending the time for making the application under section 99 of the Administration and Probate Act 1958 (Vic) would not be appropriate in the circumstances. Consequently, the application was dismissed, and the court ruled that it lacked jurisdiction to entertain the claim.

Orders