Roberts v Stern

[2017] ACTSC 182

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Roberts v Stern

Citation:

[2017] ACTSC 182

Hearing Date:

21 June 2017

DecisionDate:

7 July 2017

Before:

Ashford AJ

Decision:

1.    The application for an extension of time be dismissed.

2.    The second order sought in the Application in Proceeding dated 27 April 2017 be declined.

3.    The question of costs is reserved at this time but recommend the plaintiff pay her own costs and the costs of the defendant come from the Estate.

Catchwords:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Administration of the estate – application for an extension of time – onus of sufficient cause required – “rest and residue of the estate” – application dismissed

Legislation Cited:

Family Provision Act 1969 (ACT), ss 8(1), 9(2)

Parties:

Zoe Roberts (Plaintiff)

Daphne Stern (Defendant)

Representation:

Counsel

In person (Plaintiff)

Ms A Avery-Williams (Defendant)

Solicitors

In person (Plaintiff)

Gil-Jones Baker as agent for Ronald Czinner & Co (Defendant)

File Number:

SC 421 of 2016

ASHFORD AJ:

1. By way of application filed on 27 April 2017, the plaintiff, Ms Zoe Roberts, seeks orders as follows: 

(1) an extension of time for bringing her originating application pursuant to s 9(2) of the Family Provision Act 1969 (ACT);

(2) provision to be made in her favour pursuant to s 8(1) of that Act.

1. Each of those applications is opposed by the defendant.  With no disrespect, I intend to refer to each of the persons in this decision, other than the plaintiff and the defendant, by their first names.

1. The plaintiff, Ms Zoe Roberts, claims she was the partner of Ms Sylvie Stern (Sylvie) who died on 21 January 2015.  The defendant, Ms Daphne Stern, was a sister of Sylvie and is the administrator of her estate.  Ms Debra Stern (Debra) was the mother of Sylvie and the defendant, and of Ms Iris Stern (Iris).  It appears that Debra owned three pieces of real property and in her will had left one piece of property to each of the three sisters. 

1. Prior to her death, Debra needed to be cared for in a nursing home and an agreement was reached that the real property which was to be left to Daphne would be sold and the proceeds used for care of Debra in a nursing home.  The sisters agreed that after Debra's death the bond money from the nursing home would be divided between the three sisters, with the end result being that Sylvie and Iris each received real property and one-third each of the cash and Daphne, the defendant, received one-third cash.

1. In consideration for the defendant not making a claim for provision, the sisters reached an agreement whereby Iris renounced her claim for one-third cash, Sylvie took one‑third cash but agreed to leave the property which had been bequeathed to her by Debra, to Daphne upon Sylvie's death.  That agreement was made in about June 2014. 

1. The cash received by Sylvie from her mother's estate…