| 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 |
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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 |
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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.
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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…
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- AGLC
- Re Hinton; Carter v Ryan [2025] VSC 666
- Case
- [2025] VSC 666
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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