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Sheppard v Heathcote (No 3)

Sheppard v Heathcote (No 3)

Case [2010] VSC 190 6 May 2010

Limitation Periods

Testator Family Maintenance

Prejudice

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No 8243 of 2008

IN THE MATTER of an application under 99 of the
Administration and Probate Act 1958

SUZANNE LOUISE SHEPPARD	Plaintiff
and
BERNARD DAVID HEATHCOTE (who is sued in his capacity as the executor of the will and trustee of the estate of Robert Digby Haliburton Smith Sheppard deceased)	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 April 2010
DATE OF JUDGMENT:	6 May 2010
CASE MAY BE CITED AS:	Sheppard v Heathcote (No 3)
MEDIUM NEUTRAL CITATION:	[2010] VSC 190

ADMINISTRATION AND PROBATE – application for extension of time to make a testator family maintenance (“TFM”) application – application three and half years after statutory time limit of six months elapsed – applicant involved in her mother’s TFM application which was resolved before she made TFM application – prejudice to other beneficiaries – whether delay should be explained – application allowed – section 99 Administration and Probate Act 1958

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R E Cook	Fong & Co
For the Defendant	Mr R C Wells	Ellinghaus Weill

Cases cited:

Amos v Amos [1966] VR 44
Ansett v Moss [2007] VSC 92
Ansett v Moss [2007] VSCA 161
Ansett vMoss [2008] VSC 277
Ashhurst v Moss (2006) 14 VR 291
Barrot, Re (1953) VLR 308
Borg v Hawke [2004] VSC 279
Day v Raudino [2009] VSC 463
Fyffe v Fyffe [2001] VSC 48
Groser v Equity Trustees Ltd [2007] VSC 27
Guskett, Re (1947) VLR 212
Lauer (deceased), Le [1984] VR 180
Leahy v Trescowthick [1999] VSC 409
Marland (deceased), In re [1957] VR 338
Nassim (deceased), Re [1984] VR 51
Valbe v Irlicht [2001] VSC 53
Walker v Walker [2004] VSC 94

HIS HONOUR:

The plaintiff, Ms Sheppard, applies under s 99 of the Administration and Probate Act 1958 (“the Act”) for an extension of time to bring a testator family maintenance (“TFM”) claim against the estate of her late father, Robert Digby Haliburton Smith Sheppard, deceased.

Her late father died in 2004 at the age of 93. He was survived by his former second wife, Mrs S M Sheppard and three daughters. His eldest daughter, Mrs Beverly Heathcote was a child of his first marriage and was born in 1937. His second and third daughters are children of his marriage to Mrs S M Sheppard: the plaintiff, who was born in 1952 and her sister, Mrs Diane MacDonald born in 1951. The defendant, the executor and trustee of Mr Sheppard’s will and estate is the husband of Mrs Heathcote and the son in law of the deceased.

At the time of his death, Mr Sheppard lived with his former wife, Mrs S M Sheppard, in his home at 671 Orrong Road Toorak despite their divorce in 1960. She cared for him in his old age for many years until his death. Mr Sheppard made his last will on 1 October 1991.…

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 Sheppard v Heathcote (No 3)

Details

AGLC: Sheppard v Heathcote (No 3) [2010] VSC 190
Case: [2010] VSC 190
Decision Date: 6 May 2010

CaseChat Overview and Summary

The applicant sought an extension of time to make a testator family maintenance application. The dispute arose from an application made three and a half years after the statutory six-month time limit had elapsed, and the applicant was involved in a separate TFM application concerning her mother. The application was heard in the Supreme Court of Victoria. The primary issue before the court was whether the significant delay in making the TFM application should be condoned under section 99 of the Administration and Probate Act 1958, considering the potential prejudice to other beneficiaries.

The court considered the criteria for condonation under section 99, including the length of the delay, the reason for the delay, and whether the delay would cause prejudice to other interested persons. The applicant argued that the delay was due to her involvement in another TFM application and that there was no prejudice to other beneficiaries. The court also considered the applicant's explanation for the delay, which was that she was involved in another TFM application concerning her mother. The court found that the applicant had provided a satisfactory explanation for the delay and that there was no significant prejudice to other beneficiaries.

The Supreme Court allowed the application for an extension of time, finding that the applicant had provided a satisfactory explanation for the delay and that there was no significant prejudice to other beneficiaries. The court held that the delay was not so inordinate as to warrant refusal of the application for an extension of time. The applicant's explanation for the delay was deemed sufficient, and the court was satisfied that the applicant had acted reasonably in waiting until the conclusion of the other TFM application before making the current application. The court also found that there was no significant prejudice to other beneficiaries, as the estate had not been distributed, and the delay did not impact the rights of other beneficiaries.

The court's final order was that the application for an extension of time to make a TFM application was granted. The applicant was permitted to proceed with her application, despite the significant delay, as the court found that the delay was sufficiently explained and that there was no significant prejudice to other beneficiaries. The court's decision in this case highlights the importance of providing a satisfactory explanation for delays in making TFM applications and the need to consider the potential impact on other beneficiaries when deciding whether to grant an extension of time.

Orders