| 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…
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- AGLC
- Re Winter-Cooke (No 2) [2021] VSC 806
- Case
- [2021] VSC 806
- Decision Date
CaseChat Overview and Summary
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
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
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