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Re Winter-Cooke (No 2)

Re Winter-Cooke (No 2)

Case [2021] VSC 806 13 December 2021

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2016 00704

IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic) and the will and estate of SAMUEL ROBERT WINTER-COOKE, deceased
-and-
IN THE MATTER of the Administration and Probate Act 1958 (Vic) and the will and estate of MARCIA WILSHIRE WINTER-COOKE, deceased
ROBERT EDMUND WINTER-COOKE	Plaintiff
v
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	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 & 25 May 2021
DATE OF JUDGMENT:	13 December 2021
CASE MAY BE CITED AS:	Re Winter-Cooke (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 806

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ADMINISTRATION AND PROBATE – Family provision – Extension of time application – Whether claims arguable – Whether delay satisfactorily explained – Whether defendants prejudiced by effluxion of time – Ansett v Moss [2007] VSCA 161; Maher v Maher [2019] VSCA 161.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The Hon D Ryan QC and Mr M McKenzie	Constable Connor & Co Pty Ltd
For the Defendant	Mr R Wells	Kathy Wilson Legal

SCHEDULE OF PARTIES

BETWEEN:

ROBERT EDMUND WINTER-COOKE	Plaintiff
-and-
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)	First defendant
CATHARINE FRANCES 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)	Second defendant
PHILIPPA ROSEMARY RISBEY (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)	Third defendant
WINTER COOKE (MURNDAL) PTY LTD (ACN 004 314 443) (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)	Fourth defendant

HER HONOUR:

Introduction

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.

On 8 April 2009 probate of the deceased’s will dated 26 April 2007 was granted to Marcus, Catharine and Philippa as executors and trustees of the deceased’s estate. At that time, the value of the estate was estimated at $6,693,214.

By originating motion filed 26 February 2016, the plaintiff sought, inter alia:

(a) an extension of time to bring an application for further provision from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’);

(b) further provision from the deceased’s estate; and

(c) orders relating to the plaintiff’s alleged entitlement to certain shares pursuant to the will of the plaintiff’s paternal grandmother, Marcia Wilshire Winter-Cooke (‘Marcia’).

The defendants are…

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 Winter-Cooke (No 2)

Details

AGLC: Re Winter-Cooke (No 2) [2021] VSC 806
Case: [2021] VSC 806
Decision Date: 13 December 2021

CaseChat Overview and Summary

The case of Re Winter-Cooke (No 2) was heard in the Supreme Court of Victoria, where the issue was an application to extend the time limit for a family provision claim. The applicant, a family member of the deceased, sought to extend the time limit for making a claim under the Family Provision Act 1982 (Vic). The application was opposed by the executors of the deceased's estate.

The central legal issues the court had to decide were whether the applicant's claims were arguable, whether the delay in making the claim was satisfactorily explained, and whether the defendants would be prejudiced by the effluxion of time. The court considered these issues in the context of relevant authorities, including Ansett v Moss and Maher v Maher. The court also considered the broader principles of equity and fairness in determining whether to grant the extension of time.

In determining the application, the court considered the nature and strength of the applicant's claims, the reasons for the delay in making the claim, and the extent to which the defendants would be prejudiced if the time limit were extended. The court found that the applicant's claims were arguable and that the delay was satisfactorily explained. The court also found that the defendants would not be prejudiced by the effluxion of time. The court therefore granted the application for an extension of time, allowing the applicant to make a family provision claim.

The court's decision highlights the importance of considering the principles of equity and fairness when determining whether to grant an extension of time for a family provision claim. The court found that, in this case, the applicant's claims were arguable and the delay was satisfactorily explained, and that the defendants would not be prejudiced by the effluxion of time. The court's decision therefore allows the applicant to pursue their claim, subject to the terms and conditions set out in the court's orders.

Orders