Re Ross; Ross v Vallance
[2022] VSC 593
•5 October 2022 (revised)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2021 02587
IN THE MATTER of Part IV of the Administration and Probate Act 1958
- and –
IN THE MATTER of the Will and Estate of UWE ROSS, deceased
BETWEEN:
| MARK SHANE ROSS | Plaintiff |
| v | |
| LACHLAN VALLANCE (WHO IS SUED AS THE ADMINISTRATOR OF THE ESTATE OF UWE ROSS, DECEASED) | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 May 2022 (application); further hearing dates regarding evidentiary issue: 10 June 2022, 10 August 2022 |
DATE OF RULING: | 5 October 2022 (revised) |
CASE MAY BE CITED AS: | Re Ross; Ross v Vallance |
MEDIUM NEUTRAL CITATION: | [2022] VSC 593 |
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TESTATOR’S FAMILY MAINTENANCE — Application for extension of time — Ignorance of right to claim relief — Whether it is in the interests of justice to extend time — Whether the plaintiff’s explanation for the delay is satisfactory — Whether the delay causes significant prejudice — Whether the plaintiff’s claim has a prospect of success — Application granted — Administration and Probate Act 1958 (Vic) s 99 — Ansett v Moss [2007] VSC 92 — Sheppard v Heathcote (No 3) [2010] VSC 190 — Maher v Maher [2019] VSCA 161 — Paola v State Trustees Ltd [2012] VSC 158 — Re Guskett [1947] VLR 212.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A P Dickenson | Hentys Lawyers |
| For the Defendant | Mr R C Wells | Hicks Oakley Chessell Williams Pty Ltd |
TABLE OF CONTENTS
Evidence............................................................................................................................................... 1
Procedural history.............................................................................................................................. 1
Background......................................................................................................................................... 1
The will................................................................................................................................................ 2
The plaintiff’s reasons for late application for a family provision order............................... 3
Assessment of the plaintiff’s evidence.......................................................................................... 5
Reasons for the delay – administrator’s submissions on the plaintiff’s evidence 5
Reasons for the delay – assessment of the plaintiff’s evidence....................... 7
The plaintiff’s financial situation – administrator’s submissions on the plaintiff’s evidence................................................................................................ 10
The plaintiff’s financial situation – assessment of the plaintiff’s evidence.. 10
Plaintiff’s submissions................................................................................................................... 12
Length of delay..................................................................................................... 13
Prejudice................................................................................................................ 13
Reasons for the delay........................................................................................... 13
Interests of justice................................................................................................. 14
Administrator’s submissions......................................................................................................... 15
Reasons for the delay........................................................................................... 15
No prospect of success in family provision claim........................................... 16
Prejudice................................................................................................................ 16
Interests of justice................................................................................................. 16
Applicable principles...................................................................................................................... 17
Analysis.............................................................................................................................................. 18
Conclusion......................................................................................................................................... 19
HER HONOUR:
The plaintiff seeks an extension of time. He wishes to apply for additional distribution from the estate of his late father. His application is approximately 20 months late. I will extend time for the reasons outlined here.
Evidence
The plaintiff gave oral evidence and was cross‑examined. Key parts of his oral evidence are outlined below. The plaintiff relies on his affidavits sworn on 13 December 2021 (‘first plaintiff affidavit’) and 28 February 2022 (‘second plaintiff affidavit’), together with the affidavit of George Patrick Tabet, law clerk, sworn on 13 May 2022. The plaintiff relies too on his position statement dated 5 October 2021 (‘plaintiff’s position statement’).[1]
[1]The plaintiff references and exhibits the position statement in his first affidavit: see Exhibit ”MSR-01” to the first plaintiff affidavit. In the second plaintiff affidavit at [7], the plaintiff deposes that the position statement is true and correct and adopts it.
Procedural history
The application for an extension of time was heard on 17 May 2022. The defendant administrator called for the plaintiff to produce a document referred to in his oral evidence. The plaintiff’s solicitors provided further documents to the administrator. These documents included the file of the plaintiff’s previous solicitors, GE Law Services. The administrator ultimately decided he did not wish to reopen the application and that it should proceed to determination.
Background
The plaintiff, Mark Shane Ross, is one of the three children of Uwe Ross (‘testator’). The testator’s other children are Craig Martin Ross and Debbie Lisa Ross.[2]
[2]Exhibit “MSR-01” to the first plaintiff affidavit, [10].
The plaintiff deposes that he grew up with the testator as his primary parent. He deposes that he was expected to step up and help with cooking meals, washing clothes, and other domestic duties during his school years.[3] In his position statement, the plaintiff says he ‘had a normal father/son relationship with good times and differences’.[4] The plaintiff followed the testator’s footsteps in becoming a qualified electrician.[5]
[3]Ibid, [13].
[4]Plaintiff’s position statement, [4].
[5]Second plaintiff affidavit, [16].
The will
The testator died on 27 February 2019. His will is dated 2 January 2019 (the ‘will’).[6] The will appoints Craig Ross as executor and trustee, and the plaintiff and Debbie Ross as substitute executors.[7] Craig Ross renounced probate. Probate of the will was granted to the plaintiff and Debbie Ross on 6 May 2019. The deceased’s estate inventory of assets, dated 30 April 2019, listed two rural properties.[8] Together, they were valued at $650,000. However, the property at Hallston, Victoria, valued then at $450,000 has recently sold for $659,000.[9] The other property at Wooreen, Victoria, was valued at $200,000. There is no evidence before the Court regarding its current value. On 8 February 2021, the Supreme Court of Victoria appointed the defendant as administrator of the estate.[10] By those same orders, the plaintiff and Debbie Ross were both removed as executors.[11]
[6]Exhibit “MSR-1” to second plaintiff affidavit, 2.
[7]Ibid.
[8]Inventory of Assets and Liabilities contained in Exhibit ”MSR-1” to the second plaintiff affidavit, 4.
[9]Transcript of Proceedings, Re Ross; Ross v Vallance (Supreme Court of Victoria, S ECI 2021 02587, Ierodiaconou AsJ, 17 May 2022), 48 (‘Transcript’).
[10]Order of McMillan J in Ross v Ross (Supreme Court of Victoria, S ECI 2020 03117, 8 February 2021).
[11]Ibid.
The will states the following.
I give tools, electrical equipment, fishing gear to my son Mark.
…
I give the balance of monies received from the sales of my 2 properties 1. 2790 Grand Ridge Rd Hallston & 2. 585 Leongatha Yarragon Rd Wooreen to the following people in the percentages allotted here. – Debbie Lisa Ross 55% Mark Shane Ross 13% [other beneficiary] 10% [other beneficiary] 6% charity nominated by Craig Martin Ross 5% [other beneficiary] 4% Executor Fee 4% [other beneficiary] 1% [other beneficiary] 1% Seventh Day Ad[ventist] Church (Leongatha) 1%.[12]
[12]Exhibit “MSR-1” to second plaintiff affidavit, 2–3.
The plaintiff’s reasons for late application for a family provision order
The plaintiff deposes that he was unaware of his right to make an application for family provision orders until it was brought to his attention by a close friend.[13] Further, after becoming aware of his rights, he immediately contacted his current solicitors, Hentys Lawyers, to obtain legal advice. Turning now to the plaintiff’s chronology as to how these matters unfolded.
[13]Second plaintiff affidavit, [6].
The plaintiff states that he mentioned to Ms Pippa Sampson of GE Law Services, his previous lawyer, ‘multiple times’ that he believed the will was disproportionate and possibly fraudulent. He says that despite this, he was not advised to make an application for family provision orders.[14]
[14]Plaintiff’s position statement, [27].
On 24 May 2021 at 12:23am, the plaintiff sent GE Law Services an email which stated the following (‘plaintiff’s 24 May 21 email’).
Hope your weekend was good. 2 things happened on mine.
1.I slashed the Hallston property for safer access for the Administrator attendance.
2.I had an epiphany. I am going to challenge the Will. I have never considered it to be valid. I have prepared what I consider the prerequisite ground for an application to the court and although significant time has elapsed since Probate, the fact that administration has not even commenced I believe the circumstances are exceptional.
Please let me know if you believe a Will Challenge by me has merit and if you are prepared to go down this road with me. [15]
[15]Exhibit “MSR-1” to second plaintiff affidavit, 6. The document referred to in this email was the document that was called for by the administrator. It is not in evidence.
On 24 May 2021 at 10:57am, Ms Sampson responded via email as follows (’24 May 21 email advice’).
I don’t think you would should [sic] consider the challenge as an option. You have a couple of problems with that course:-
1. Time– you are commencing the application out of time and you need the leave of the court to do it; if you make an application for leave to commence out of time, you have good reasons for delay– and I can say the Court will be unlikely to grant leave;
2. If you fail, you will in all likelihood (90% chance), have an order for costs made against you– not a good look and the estate costs would be exorbitant $40K plus;
3. The fact that you were a co-executor, and you had lawyers along the way, would act against you in any application for leave.
4. The sorts of reasons for the delay are– “I didn’t know I had rights”; “the executors didn’t communicate with me”; etc– let’s talk about it, please feel free to call.
I do think a better course would be to look at an interpretation of the Will las [sic] it was home made will and is contradictory. That may give you a better outcome.[16]
[16]Exhibit “MSR-1” to second plaintiff affidavit, 5.
GE Law Services represented the plaintiff in the earlier executor removal proceedings. The plaintiff deposes that the 24 May 21 email advice was in relation to a challenge of the will. He deposes that he was not given advice or told about the option to make a ‘family provision claim’.[17] The plaintiff deposes that during the period of his retainer with GE Law Services, he paid the firm a sum of $17,000 for advice in relation to the estate matter.[18] The plaintiff deposes that he was surprised he had not been advised of his rights to make a claim for family provision orders earlier, and was disappointed with his former solicitor’s opinion that his ‘chances of addressing the inequity in the will were slim’.[19]
[17]First plaintiff affidavit, [4].
[18]Ibid, [5].
[19]Second plaintiff affidavit, [9].
The plaintiff deposes that in late May 2021, his close friend, Bernie Farrell, suggested he seek advice elsewhere as GE Law Services were not advising him about his right to make a claim against the estate.[20] The plaintiff deposes that it was at this stage that he contacted his current solicitors, Hentys Lawyers.[21] He then became aware of his right to make an application for family provision orders.[22] As discussed below, the administrator challenged this evidence, and his counsel cross-examined the plaintiff.
[20]Ibid, [6].
[21]Ibid, [7].
[22]Ibid, [6].
Turning now to the plaintiff’s other reasons for his delay in making the application.
The plaintiff deposes that maintenance of the estate property preoccupied him after the testator’s death.[23] The plaintiff states that he gave up his normal activities to care for the testator’s 42 horses and that it took 12 months to rehome them.[24] The plaintiff states that he completed other maintenance tasks on the estate property.[25] The plaintiff’s evidence is that he did this as the eldest son of the testator. He lives closest to the testator’s property, as Debbie Ross lives in Queensland and Craig Ross lives in Brazil.[26] The plaintiff’s evidence is that he would drive 40 minutes in both directions daily to undertake the tasks on the testator’s property.[27]
[23]Ibid.
[24]Plaintiff’s position statement, [22].
[25]Ibid, [23].
[26]Transcript, 11.
[27]Ibid.
The plaintiff refers to other factors for the delay, including an arson attack on his property, causing him to expend time cleaning up and dealing with the loss of personal property. He says this caused him financial loss and that he suffered financial pressures after he became unemployed due to retrenchment.[28]
[28]Plaintiff’s position statement [24]–[25].
The plaintiff deposes that since the testator’s death, he has sought treatment for depression, stress, and anxiety.[29] He deposes that in mid-May 2021, he attended counselling with his friend, Kylie Goulding.[30]
[29]Second plaintiff affidavit, [28].
[30]Ibid, [30].
Assessment of the plaintiff’s evidence
Reasons for the delay – administrator’s submissions on the plaintiff’s evidence
The large holes in the plaintiff’s evidence are apparent in the differences between his position statement and his second affidavit regarding the advice from his former solicitors.
It is a relevant circumstance that the plaintiff was an executor of the estate and was involved in litigation for a period of at least eight months. Admittedly, this litigation concerned whether he should be removed as executor. He was legally represented with respect to the deceased estate.
The plaintiff’s evidence regarding whether he had received advice about a claim for family provision orders is challenged. The plaintiff did not give credible explanations as to what advice his previous solicitor gave to him. The plaintiff’s evidence is that the 24 May 21 email advice did not include advice about his right to make a family provision claim, but rather, advice with respect to ‘challenging’ the will. The plaintiff says that none of the communications with his former solicitor touched on the possibility of making a claim for family provision orders until May 2021. Even then, the plaintiff equivocated as to whether the 24 May 21 email advice related to a claim for family provision orders. In his second affidavit, the plaintiff deposes that he was surprised that Ms Sampson had not informed him of his right to make a family provision claim earlier. The tenor of the emails on 24 May 2021 is that the plaintiff was advised about his right to make a claim for family provision orders. Paragraph 8 of the second plaintiff affidavit implicitly acknowledges that fact. He deposes that:
I was surprised that whilst being represented I had not been advised of my rights to claim for an order for further provision earlier. Following the email from Pippa Sampson of GE [L]aw dated 24 May (Pages 5-7 of the bundle exhibit) I was disappointed that in her opinion, my chances of addressing inequity in the will were slim. On many occasions I raised concerns regarding how inequitable the Will was.
A negative inference should be drawn from the plaintiff’s failure to call Ms Sampson to give evidence. There is only one communication with Ms Sampson in evidence when there would have been many more. The plaintiff could have filed an affidavit saying that, other than the emails on 24 May 2021, he did not discuss an application for family provision orders with Ms Sampson. He has not sought to call the friends that he says drew his attention to his possible right to a claim. Those are matters well within his province and he has chosen not to do so. There has been a lack of openness with the Court. The plaintiff’s explanations have shifted.
Reasons for the delay – assessment of the plaintiff’s evidence
I found the plaintiff to be an honest witness. However, there was some confusion in his evidence. As discussed below, I found him somewhat confused about his legal rights, understanding of family provision claims and financial matters. Overall, I found him to be a reliable witness in the account of his factual recollection.
For the period prior to the 24 May 21 email advice, I accept the plaintiff’s evidence that his former solicitor did not give him advice about a claim for family provision orders. His evidence was that his sister initiated proceedings against him [to remove him as executor] and he was initially representing himself. He was “at [his] wit’s end representing [him]self” and engaged GE Law Services.[31]
[31]Transcript, 24.
The plaintiff’s evidence was that he mentioned in his discussions with Ms Sampson that he believed the distribution in the will was disproportionate and the will was possibly fraudulent.[32] His evidence is that Ms Sampson did not take it any further.[33]
It was just like I was venting that I was unhappy with the will. She concurred that the will was handwritten and, and a poor one, and that was it. It never, it never proceeded beyond that, ever…
…I’m not saying that she didn't say anything; she didn’t give any advice as to a course of action, is what I'm saying.[34]
[32]Ibid, 29–30.
[33]Ibid, 30.
[34]Ibid.
Pausing there, I make no finding about whether the plaintiff’s venting constituted a request for legal advice from Ms Sampson. Ms Sampson has not had the opportunity to give evidence regarding this.
When asked why he did not call Ms Sampson as a witness, the plaintiff responded that he wished he had. I do not draw any negative inference about the failure to call Ms Sampson as a witness in circumstances where material from her file was available, and particularly the emails exchanged on 24 May 2021. The plaintiff’s 24 May 21 email is consistent with the plaintiff’s evidence that he was unaware that he could make a claim for family provision orders. The response from his former solicitor is consistent with no such advice being given previously as it refers specifically to a limitation issue. There was little point in calling Ms Sampson as a witness in circumstances where the plaintiff gave evidence that he did not communicate with her further on the issue and soon afterwards retained new solicitors. There is no evidence to suggest this is a case where the plaintiff, having been properly advised about a family provision claim, elected not to proceed with it.
The plaintiff gave evidence that his friend, Ms Goulding, undertook research about some type of claim regarding the will.[35] He also did some research. He also spoke with another friend, Ms Farrell, about challenging the will, perhaps in late May 2021 after Ms Goulding raised it.[36] At that time, he wrote the 24 May 21 email.
[35]Ibid, 34.
[36]Ibid, 32–33.
There is a ring of truth about the plaintiff’s evidence. His evidence is that he had an epiphany while on his tractor. The plaintiff’s 24 May 21 email states: “I had an epiphany. I am going to challenge the will…”. At the time, he was slashing the property of the deceased estate for safer access by the administrator.[37] He was “mulling over the information and processing the information” given to him by Ms Goulding.[38] He had a realisation that he needed to do something and have a change of direction: “so instead of sitting on the tractor all day… I then contacted Pippa [Sampson] at 1 o’clock that morning and said… ‘Can I challenge the will?’”[39] He had mixed information from the research by himself and his friends. The subject of the plaintiff’s 24 May 21 email is ‘New direction’. The plaintiff’s evidence is that the reference to ‘new direction’ was because “I’d just spent six months defending myself against my sister’s unfounded allegations resulting in… six months of… legal matters between me and my sister. And… it was a new direction as in… I wanted to address something that I considered important”.[40] He just wanted to address the will and did not know the correct terminology to use.[41]
[37]Ibid, 38; see also the plaintiff’s 24 May 21 email.
[38]Ibid, 39.
[39]Ibid, 34.
[40]Ibid, 40.
[41]Ibid, 42.
The plaintiff’s evidence is that he prepared a document as to why he considered the will to be invalid or fraudulent but never gave it to Ms Sampson because he understood by the 24 May 21 email advice that she believed “I wouldn’t have a chance or that my chances were slim”.[42]
[42]Ibid, 34.
I accept the plaintiff’s evidence that he felt the 24 May 21 email advice “basically shut me down”.[43] The email advice categorically advises against challenging the will. I accept his evidence that he then retained his current solicitors less than a fortnight later. By the time he sent the 24 May 21 email, having done some research with his friends, he was aware that he could challenge the will. However, it was not until he retained his current solicitors that he was aware he could make a claim for family provision orders.
[43]Ibid.
The plaintiff’s 24 May 21 email did not refer to a family provision claim. It refers to challenging the will. This is where the confusion lies. Given the plaintiff’s evidence that his venting to Ms Sampson included the will being disproportionate, it is evident that he did not believe it would provide him with a proportionate share of the deceased estate. He was unaware how to articulate his belief that he had a legal right to an additional distribution from the deceased estate. There is then a question as to whether the 24 May 21 email advice constitutes advice about a family provision claim. On one reading, a person with legal knowledge may infer that it is such an advice. The plaintiff is unsophisticated and evidently lacking knowledge about his legal rights. The 24 May 21 email advice does not refer to a family provision claim. I accept the plaintiff’s evidence that he did not understand it to be such advice.
In his second affidavit, as already outlined, the plaintiff refers to being surprised he had not been advised by Ms Sampson of his rights to make a claim for provision earlier.[44] There is force in the administrator’s submission about the use of the word ‘earlier’. If the plaintiff meant that Ms Sampson never advised him about a family provision claim at all, he did not need to use the word ‘earlier’. However, the affidavit was made after the plaintiff made an application for family provision orders. I treat it as a reflection in hindsight. It is consistent with his oral evidence that his former solicitor did not advise him about making a claim for family provision orders. It is also consistent with his epiphany.[45] The most that could be said is that the word ‘earlier’ refers to the 24 May 21 email advice as family provision claim advice. However, for reasons already outlined above, I do not accept that.
[44]Second plaintiff affidavit, [8].
[45]Transcript, 43.
I decline to draw an adverse inference because the plaintiff did not call Ms Goulding or Ms Farrell to give evidence. Even if they had given evidence that they had discussed a family provision claim with the plaintiff, I am satisfied that his evidence about his own state of knowledge was truthful. That is, he was unaware he could make such a claim until advised so by his current solicitors. As already discussed, this evidence is corroborated by the plaintiff’s 24 May 21 email, which does not refer to a family provision claim, but broadly seeks to challenge the will.
I accept the plaintiff’s evidence that it was not until he consulted his current solicitors in June 2021 that he became fully aware that there was the possibility that he could make a family provision claim.[46] Moreover, even if the plaintiff knew he could make a family provision claim before then, there is no evidence that he knew about a limitation period and deliberately allowed time to expire before making his claim.
The plaintiff’s financial situation – administrator’s submissions on the plaintiff’s evidence
[46]Ibid, 45.
There is a degree of inconsistency in the plaintiff’s evidence regarding his financial situation, as he failed to disclose a property asset. Further, the liabilities are incorrect. The plaintiff’s evidence of having omitted a significant asset and liability from his second affidavit clearly demonstrates that his material is not watertight.
The plaintiff’s financial situation – assessment of the plaintiff’s evidence
A real property asset was not disclosed in the plaintiff’s affidavit material or position statement. His list of assets did not include land that he owns in Morwell. The capital net value of this property is at least $165,000.[47] At the commencement of his oral evidence, this was corrected.[48] His evidence, which I accept, is that it was an oversight and his reference to assets and liabilities was consequently mistaken. The plaintiff’s explanation of the oversight was plausible, and I found his evidence credible, although clearly he was confused about calculating liabilities, as discussed below.
[47]Tender of Evidence, Re Ross; Ross v Vallance (Supreme Court of Victoria, S ECI 2021 02587, Ierodiaconou AsJ, 17 May 2022) Plaintiff, Exhibit P1, Valuation and Rates Notice issued 27 August 2021.
[48]Transcript, 4.
The plaintiff’s evidence is that he purchased the Morwell property approximately 10 years ago for a neighbour with whom he had developed a friendship. The neighbour “was going to be kicked out of his house”. In oral evidence, the plaintiff said:
He’s a disabled pensioner. … I didn’t declare [the Morwell land] as an asset or a liability in my affidavit because I don’t derive an income from it and there’s no equity in the property…
He [the neighbour] was just an old fellow that had no family… the house came upon the market and… he was worried that he was going to get kicked out on the street because he couldn’t afford much. He was paying an extremely low rent… I bought the house so that he had somewhere to live and he’s still there today.[49]
[49]Ibid, 5.
The plaintiff gave evidence that he bought the Morwell land for $150,000 and still owes $149,000 on it.[50] He believes that he has no equity in it and derives no income from it.[51] The loan was an interest-only loan to keep payments down so that his elderly friend could keep renting it for very low rent ($160 per week).[52] The bank has just readjusted loan payments to principal and interest, so it is now $875 a month to repay the loan and he receives $640 a month in rent. The plaintiff said “I won’t kick [the neighbour] out. I’ve given that undertaking as my word, so he’s in there until he passes away or whatever”.[53] I found the plaintiff’s evidence as to the oversight compelling. From the summary of his banking dated 16 May 2022, it is evident that the plaintiff has little equity in the Morwell property.[54]
[50]Ibid, 7.
[51]Ibid, 9.
[52]Ibid, 7.
[53]Ibid.
[54]Exhibit P1, 1.
The administrator cross-examined the plaintiff about his liabilities. In the plaintiff’s second affidavit and position statement, he stated that he had loans of $221,565. This is incorrect. The printout of his bank statement dated 16 May 2022 shows a loan he described as his home loan to be $141,133.39 and the loan he described as being for the Morwell land to be $149,058. Together the loans total $290,191.39. The plaintiff could not recollect how he came up with the amount in his affidavit. I found him to be confused. He thought perhaps he took into consideration some equity in the Morwell land.[55] He hastily prepared some figures and provided them to his lawyers; it was a mistake not to check them. The plaintiff gave evidence that he was “confused”. He said:
I just know that there – there’s two loans… that equate to approximately $300,000. I can’t quote the exact figures. And then I… removed the amount of equity… And that’s where I figured I had a… net liability, or a net debt of $226,000. I think I just did it on a piece of paper and that was the figure that I used. It’s the only explanation I can offer.[56]
[55]Transcript, 18–20.
[56]Ibid, 20.
Challenged on his evidence, the plaintiff said “I tried to balance my finances when I submitted the figures so that it was an… accurate figure of my net worth at the time”.[57] I accept that explanation.
[57]Ibid.
Plaintiff’s submissions
Section 99 of the Administration and Probate Act 1958 (Vic) (‘Administration and Probate Act’) allows the Court to extend time for an application for family provision as it thinks necessary before final distribution of the estate.
Justice requires that the plaintiff’s application for extension of time be granted.[58]
Length of delay
[58]The plaintiff relies generally on Maher v Maher [2019] VSCA 161 (‘Maher’), particularly [63]–[65].
The length of the delay is not extreme in this case. The time for claiming family provision expired on 6 November 2019. The plaintiff issued his application for family provision orders on 23 July 2021.
Prejudice
The question is whether the length of the delay has been such as to prejudice the administrator or beneficiaries. The administrator does not assert prejudice. Where there is no prejudice, the extension of time is usually granted.[59]
[59]The plaintiff relies on Sheppard v Heathcote (No 3) [2010] VSC 190 (‘Sheppard’).
There is no evidence from any of the beneficiaries that they will suffer any actual prejudice. They have not advanced any evidence of competing financial needs. The administrator concedes that the estate has not been distributed. One property has been sold and the other has not yet been sold. The plaintiff’s application has not delayed distribution. Rather, it is just delay in the ordinary administration of the estate. Therefore, no beneficiaries are affected by the lateness of the application.
Reasons for the delay
The other factor to be considered is the reason for the delay. Considering the factors in Maher v Maher[60] (‘Maher’) is a balancing exercise. For example, an extension of time may be granted even if the delay has not been explained.[61]
[60][2019] VSCA 161.
[61]Ansett v Moss [2007] VSC 92 (‘Ansett’).
Here, the reasons for the delay have been satisfactorily explained. Although the plaintiff was involved in a dispute with his then co-executor, Debbie Ross, about the administration of the estate, he did not receive legal advice about his right to make an application for family provision orders. The plaintiff was an honest witness and openly said he was doing some research. However, the advice he sought from his previous solicitor was about the validity of the will. Even if the Court was to form the view that the plaintiff had some understanding about family provision orders, his explanation for delay is not undermined by that fact. The emails between the plaintiff and Ms Sampson are not critical to this aspect of the case. There appears to be a misunderstanding between the plaintiff and Ms Sampson about what advice he was seeking in the 24 May 21 email. The plaintiff’s evidence is that he did not get advice about a family provision claim.
The administrator’s submissions, at the highest, are that the 24 May 21 email advice is about a family provision claim. Even if that is accepted: the plaintiff acted promptly after receiving that advice. He instructed Hentys Lawyers in June 2021 and commenced proceedings in July 2021. This is a period of less than two months from receiving the 24 May 21 email advice. There are other cases such as Ansett v Moss[62] (‘Ansett’), where time was extended though the delay was more than 20 years.[63] This is a short delay.
[62][2007] VSC 92.
[63]Ibid.
Even if the Court had reservations about the plaintiff’s explanation for the delay, that would not be sufficient to warrant the dismissal of the application. There is a lack of prejudice to the beneficiaries of the estate. Further, the plaintiff has a strong family provision claim.
Interests of justice
Justice is a guiding factor when considering extension of time applications.[64] It would be unjust in this case to penalise the plaintiff for being out of time. The administrator has not provided any reasons as to why the distributions were proper and why the testator was acting as a wise and just testator by making the allocations in the will. On the face of the will, this is unjust as the plaintiff has financial need. The plaintiff looked after the testator in the last months of his life. He maintained the property and cared for the horses following the testator’s death. The administrator does not assert any actual prejudice. Justice is all one way, and the case ought be decided on the basis that the plaintiff is granted an extension of time.
[64]Sheppard, [15(h)].
If a plaintiff is ignorant of their rights, penalising them for delay is unjust. The plaintiff has made an effort under oath to explain the delay. He always felt the will was unjust, however he did not receive advice about a family provision claim. The sale of one estate property for $650,000 means the estate’s value is $200,000 more than previously estimated. The larger the estate, the more generous a Court can be in granting provision. The delay in the administration of the estate has been fortuitous for everyone, including the plaintiff, because there is now a larger estate.
The plaintiff’s claim has significant merit. He had a close relationship with the testator. The plaintiff has limited financial resources and a modest income of $70,000 per annum before tax. He also has significant debt. The plaintiff’s future income earning capacity is limited by his health problems. There is enough money in the estate for further provision to be made to the plaintiff in a meaningful way that will change the plaintiff’s life for the better.
In reply to the administrator: the plaintiff’s evidence was that the last thing he wanted was further litigation. He is a person of limited means and has significant health issues. He has no choice but to make this claim. For the purposes of this application, the Court can infer there is no competing financial need.
Administrator’s submissions
The plaintiff is seeking an indulgence. He must justify why the Court should exercise its discretion to extend time pursuant to s 99 of the Administration and Probate Act. The administrator did not file affidavit material in opposition to this application. The material filed by the plaintiff is insufficient to establish a proper basis for granting an extension of time.
Reasons for the delay
Whilst an explanation of delay is not a necessary precondition to be granted an extension of time, it is important. The plaintiff failed to provide an adequate and credible reason for the delay in commencing his application for family provision orders and bringing an extension of time application once he became aware of his rights. There is a degree of inconsistency in the explanations given by the plaintiff. (The administrator’s submissions on the plaintiff’s evidence are outlined above.)
No prospect of success in family provision claim
The will allocates the plaintiff 13% of the deceased estate. He has not been disinherited or left with a mere token legacy payment. The plaintiff’s primary complaint is that the distributions under the will are ‘disproportionate’. That is not an appropriate basis for a family provision claim.
The plaintiff is not in a position of real financial need. He earns income. The plaintiff owns property, and has a relatively small mortgage. He will be able to reduce his mortgage by payment from the existing provision he is entitled to receive from the deceased estate.
The estate is small and if an extension was granted, then the further costs of this proceeding would further erode the estate’s value.
Having regard to these matters, it is unlikely that the plaintiff has any prospect of being awarded further provision from the estate, even if leave to commence proceedings out of time were granted.
Prejudice
The administrator does not rely on prejudice as a factor against granting an extension of time. There is no assertion of actual prejudice if an extension is granted.
The plaintiff’s application is approximately 20 months late. It would be unrealistic to submit that the nature of the evidence that may be relied upon at trial is unavailable or compromised in that period of delay. However, a presumption in favour of granting an extension of time does not flow from the absence of prejudice. It is for the plaintiff to establish a case that will justify granting an extension of time.[65] It does not start with prejudice.[66]
Interests of justice
[65]Re Guskett [1947] VLR 212.
[66]Maher, [63]–[65]; Sheppard, [15].
Justice is a guiding factor.[67] The Court should be concerned about the plaintiff’s credibility. The plaintiff simply changed his mind and decided, upon conclusion of one proceeding, to commence a new battle. It would be unjust for the plaintiff to obtain an extension of time in circumstances where he has not been full and frank with the Court.
[67]Sheppard, [15(h)].
Applicable principles
Section 99 of the Administration and Probate Act states:
(1) An application to the Court for a family provision order must be made within 6 months after the date of the grant of probate of the will or of letters of administration, as the case may be.
(2)Despite subsection (1), on application, the Court may extend the period for making an application for a family provision order if, after hearing such of the parties affected as the Court thinks necessary, the Court considers it appropriate to extend the period, including in any case where the time for making an application has already expired.
(3)An application for extension under subsection (2) must be made before the final distribution of the estate.
(4) The making of an application for extension under subsection (2) and any order of the Court in relation to the application for extension does not disturb or affect the distribution of any part of the estate made prior to the making of that application.
In Maher, the Court of Appeal held the following.
It is immediately apparent that the Court acting under s 99 exercises a discretion and that the statute provides no specific criteria in that regard. Naturally, the discretion must be exercised in accordance with the subject matter, scope and purpose of s 91 itself. But the discretion is not confined by any rigid rules.
On the other hand, some matters will ordinarily be relevant. They include the length of the delay, the reasons for the delay, whether prejudice to other interested parties would result from making an order (other than the prejudice inherent in disturbing the terms of a distribution which would have been in their favour), and the strength of the case. Other considerations may also be relevant, depending on the nature of the case.
The fact that these factors are relevant does not mean that an applicant is required to satisfy the Court as to each of them individually. For example, it has been noted that an extension may be granted where delay has not been satisfactorily explained. Rather, a balancing exercise is involved in which the Court addresses the question whether an extension of time is in the interests of justice, having regard to the purpose of s 91 to enable proper provision to be made for those eligible to make applications.[68]
[68]Maher, [63]–[65].
In Sheppard v Heathcote (No 3)[69] (‘Sheppard’), Robson J held the following.
[69][2010] VSC 190.
The authorities on section 99 and its predecessor make several points clear:
(a)The Court has a discretion under s 99 to extend the time in which the plaintiff may make a TFM application.
(b)There are no statutory criteria that must be taken into account.
(c)The plaintiff is seeking an indulgence from the statutory time limit and thus the onus is on the plaintiff to show reason for the exercise of the discretion to extend time.
(d)The plaintiff should satisfy the court that it would be unjust to penalise the plaintiff for being out of time.
(e)The discretion to extend time will not be exercised if the plaintiff's TFM case is hopeless. The strength of her case is a relevant consideration.
(f) The reason for any delay in making the application is a relevant consideration.
(g) Prejudice to other interested parties is a weighty factor.
(h) Justice is the guiding factor.
Analysis
Pursuant to s 99(3) of the Administration and Probate Act, an application to extend time must be made before final distribution of the estate. Here, the deceased estate has yet to be finally distributed.[70]
[70]It is agreed that there has already been a distribution, but not final distribution: See Transcript, 58.
I find that an extension of time is in the interests of justice for the following reasons.
Firstly, I am satisfied that the plaintiff has explained the delay. Following the testator’s death, the plaintiff was preoccupied with matters such as care for the horses and maintenance of the property. The plaintiff was then embroiled in a dispute with his sister seeking to remove him as an executor of the estate. He also had some of his own health issues. The plaintiff was in a state of confusion as to his legal rights. I am satisfied that he was unaware of his right to make an application for family provision orders until advised so by his current solicitors. I am satisfied that he then commenced proceedings within two months.
Secondly, whilst there is presumptive prejudice caused by the delay that is approximately 20 months, it does not appear significant. Importantly, there is no actual prejudice to the administrator or other beneficiaries caused by the delay.
Thirdly, I am satisfied that, at first sight, the plaintiff has a claim for family provision. There is a prospect of success. Pursuant to s 90A of the Administration and Probate Act, an ‘eligible person’ may make such a claim. The plaintiff is an eligible person as the son of the deceased.[71] Although the will makes some provision for the plaintiff, it is not substantial. He is entitled to 13% of the deceased estate. The estate is modest yet not insubstantial. Liabilities are not settled. Whether the plaintiff is entitled to family provision is a matter for trial. I am however satisfied that the plaintiff has some financial need. He was unemployed for nearly two years and reliant on social security payments. The plaintiff has now obtained employment again. However, during the time he was unemployed, he withdrew money from his superannuation entitlements to meet living expenses. He defaulted on his mortgage. Although he has assets, they are encumbered. The plaintiff also has credit card debts. He has a credit card debt of more than $5,000 and has very little savings.[72] The plaintiff has three adult children and assists one with medication expenses. On the other hand, there is no evidence of any financial need from Debbie Ross, who is entitled to 55% of the deceased estate. Nor is there any evidence of competing financial need from any other beneficiaries. I accept that this evidence may emerge now that the matter will proceed to trial.
[71]Administration and Probate Act 1958 (Vic) s 90 (definition of ‘eligible person’).
[72]Exhibit P1, 1.
Conclusion
I will make orders extending the time for the plaintiff to make an application for family provision orders. I will allow the parties to make submissions on the orders consequential to this ruling.
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