IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic) and IN THE MATTER of the WILL AND ESTATE OF SAMUEL ROBERT WINTER-COOKE deceased
-and-
IN THE MATTER of the Administration and Probate Act 1958 (Vic) and IN THE MATTER of the WILL AND ESTATE OF MARCIA WILSHIRE WINTER-COOKE deceased
SAMUEL MARCUS WINTER-COOKE (as executor and trustee of the estate of MARCIA WILSHIRE WINTER-COOKE and as executor and trustee of the estate of SAMUEL ROBERT WINTER-COOKE) and others according to the attached schedule
Samuel Robert Winter-Cooke (‘the deceased’) died on 7 January 2008. He was survived by his wife, Catharine, and his four children: Samuel Marcus Winter-Cooke (‘Marcus’), Philippa Risby, Robert Winter-Cooke (‘the plaintiff’) and Arbella Winter-Cooke. Probate was granted to Marcus, Catharine and Philippa as executors and trustees of the deceased’s estate on 8 April 2009. At that time, the estate was estimated to have a value of $6,693,214.
By originating motion filed 26 February 2016, the plaintiff commenced this proceeding seeking, inter alia:
(a) an extension of time to bring an application for further provision from the deceased’s estate, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’);
(b) further provision from the deceased’s estate;
(c) an account of profits of the Murndal partnership, of which Marcia Wilshire Winter-Cooke (‘Marcia’) was a partner;
(d) an order pursuant to the Corporations Act 2001 (Cth) that the register of Winter Cooke (Murndal) Pty Ltd (‘the company’) be amended to register his entitlement to the shares in the company held by Marcia, his paternal grandmother, who died on 7 October 1990; and
(e) costs.
Samuel, Catharine and Philippa (‘the defendants’)…
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.
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AGLC
Re Winter-Cooke [2020] VSC 588
Case
[2020] VSC 588
Decision Date
CaseChat Overview and Summary
The case of Re Winter-Cooke was heard by the Supreme Court of Victoria and involved an application by the plaintiff for summary judgment in a family maintenance proceeding out of time. The plaintiff sought to commence the proceedings against the defendants, who were the executors of the estate of the deceased. The dispute centred around the validity of two deeds of compromise previously executed by the parties and their effect on the plaintiff’s claim. The defendants applied for the plaintiff's claim to be summarily dismissed, arguing that the deeds of compromise were binding and the plaintiff had no real prospect of success in their application.
The court was required to determine the enforceability of the deeds of compromise and whether the plaintiff's claim was barred by those deeds. Additionally, the court needed to consider whether the deeds were entered into under unconscionable conduct or undue influence. The court also had to assess whether the plaintiff had a real prospect of success in their application for summary judgment.
In examining the arguments, the court noted that the deeds of compromise did not explicitly address the plaintiff's application for family maintenance. Furthermore, the court found that the deeds were not necessarily binding on the plaintiff, as they did not cover the specific claim for maintenance. The court held that the plaintiff had a real prospect of success because there were genuine issues of fact concerning the enforceability of the deeds and the circumstances under which they were executed. The court dismissed the application for summary dismissal, emphasising that the plaintiff's claim should proceed to a full hearing.
The court concluded that the application for summary dismissal was not appropriate given the complexities of the case and the need for a full hearing to determine the enforceability of the deeds of compromise, the presence of any unconscionable conduct, and the validity of the plaintiff's claim. The court’s decision was based on the principle that the plaintiff should not be precluded from pursuing their claim if there were genuine issues to be resolved.