Smith v Public Trustee of the Australian Capital Territory

ELAINE HAZEL SMITH v THE PUBLIC TRUSTEE OF THE AUSTRALIAN CAPITAL TERRITORY (AS EXECUTOR OF THE ESTATE OF THE LATE ELLEN MITCHELL) AND ROBERT WILLIAM PATTERSON

[2012] ACTSC 4 (31 January 2012)

LIMITATION OF ACTIONS – Family Provision Act 1969 – application for extension of time to apply for order for provision – application by daughter of deceased – proceedings instituted thirteen months out of time – extension granted
STATUTES – Family Provision Act 1969 – application for extension of time to apply for order for provision – application by daughter of deceased – proceedings instituted thirteen months out of time – extension granted
SUCCESSION – Family Provision Act 1969 – application for extension of time to apply for order for provision – application by daughter of deceased – proceedings instituted thirteen months out of time – extension granted

Family Provision Act 1969, ss 8, 9
Court Procedures Rules 2006, r 1179

No. SC 805 of 2010

Judge: Master Harper
Supreme Court of the ACT

Date: 31 January 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 805 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:ELAINE HAZEL SMITH
Plaintiff

AND:THE PUBLIC TRUSTEE OF THE AUSTRALIAN CAPITAL TERRITORY (AS EXECUTOR OF THE ESTATE OF THE LATE ELLEN MITCHELL)
First Defendant

AND:ROBERT WILLIAM PATTERSON
Second Defendant

ORDER

Judge:  Master Harper
Date:  31 January 2012
Place:  Canberra

THE COURT ORDERS THAT:

the time within which the plaintiff may make application for an order under s. 8 of the Family Provision Act 1969 be extended to 22 December 2010.
Robert William Patterson be joined to the proceeding as second defendant.

This is an application by a daughter of the deceased for an extension of time to make an application for provision out of the estate of the deceased under the Family Provision Act 1969. Section 9 of that Act imposes a time limit of twelve months from the date probate or administration is granted.
The deceased died on 19 July 2008. She had made a will on 8 May 2000. The will was prepared by the Public Trustee of the Australian Capital Territory, who was appointed executor. Probate of the will was granted on 14 November 2008. The time limit for an eligible person to make an application under the Act therefore ran out in November 2009. The present proceedings were instituted by originating claim dated 22 December 2010, some thirteen months out of time.
The deceased was born in 1917. She was ninety-one when she died. She was survived by two sons and two daughters. The elder son, who was not a beneficiary under the will, died in January 2010. No claim by him or on behalf of his estate against his mother’s estate has been foreshadowed, either in his lifetime or since his death.
At the time she made the will the deceased was living in a house in Boddington Cresant, Kambah, which is the only significant asset in her estate. By her will she left the house and its contents to her younger son, who opposes the plaintiff’s application for extension of time. She left $5,000.00 to each of her daughters. She then left the rest of her estate to her two daughters and her younger son equally.
There is no evidence as to the extent of the assets of the deceased at the time she made her will. As events have transpired, the liabilities within the estate exceed the assets other than the house in value, and the testamentary expenses, the major one being the Public Trustee’s commission, increase that shortfall.
The applicant and her younger brother have affirmed affidavits respectively supporting and opposing the application for extension of time. Neither has been cross-examined.
The applicant is now aged sixty-four. She lives with her husband in a rented house in Queensland. The applicant’s husband has a car with an estimated value of $3,000.00. Their only other assets are the contents of the house. The applicant is in poor health and is a disability pensioner.
The applicant’s evidence is that she was close to her mother. Her mother bought the house in Kambah in 1988 after her husband (the applicant’s stepfather) died. The applicant lived in the same suburb until 2003 and saw her mother at least once or twice per week, sometimes for lunch. They would occasionally go on holidays together. From about 1999 the condition of the deceased deteriorated. The applicant took her to see doctors when necessary and spent some time looking after her. In 2003 the applicant moved to Western Australia where she lived for three years. During this time she returned to Canberra every six months to see her mother.
As to the delay, the applicant says that she has never been involved in legal proceedings before. In March 2000 she had a conference with her sister and her younger brother to talk about what they would do if their mother left property between them in an uneven fashion. They agreed that if this happened they would share equally in the estate, selling the house as would clearly be necessary to achieve that result. They prepared a typed memorandum of understanding, which they signed as a formal document before a Justice of the Peace.
It appears that at some subsequent time a deed of settlement was prepared by a solicitor to similar effect, which was signed by the two sisters but not by their younger brother.
The applicant says that she always assumed that any issues associated with her mother’s estate could be dealt with by agreement between the members of the family. She was unaware of the time limit imposed under the Family Provision Act. Although she does not say so, it would surprise me if she was aware of the Act or its effect at all. She says that at some point her daughter told her that she thought she would need to take legal action to protect her rights. Following this she contacted a firm of solicitors in October 2010. Thereafter matters proceeded with appropriate expedition.
The applicant’s brother says in his affidavit that he is the youngest of the children of the deceased. He has three adult children from his first marriage, and six grandchildren. He was divorced in 1988 and married his present wife in 2001. He has two children from the second marriage, aged thirteen and seven. He has lived with his second wife since 1998, initially in rented accommodation. In 1999 they moved into his mother’s house with her. They lived there until 2007 paying rent and helping to cover other expenses. The applicant’s brother has throughout this period been employed as a labourer with a firm of removalists. He says that in 2004 his mother had a fall at home and was injured, requiring hospital care. She began to show signs of dementia. During 2005, without his knowledge, a niece and nephew took his mother to live at a nursing home, while he and his family were temporarily away from Canberra.
I was informed by counsel that at some time the Public Trustee was appointed guardian of the deceased and her property. By 2007, a firm of estate agents was involved, engaged by the Public Trustee, to whom the applicant’s brother paid his rent. His employment was casual and for lengthy periods he was able to work for only two or three days a week. He fell behind with his rent. During 2007, at a time when arrears of rent were about $4,600.00, the estate agent commenced proceedings and obtained an eviction order. The applicant’s brother and his family had to move out of the house. It has been unoccupied since.
Initially they could not afford rental accommodation, and stayed at the home of one of his sons at Queanbeyan. His children had to change schools. They stayed at Queanbeyan for about eighteen months, and then moved to rental accommodation at Calwell, where they were still living at the time of the hearing of the present application. The children had to change schools again. He and his family want to move back into his late mother’s house. They would be better off financially, and the children could go back to the school they were attending prior to the move to Queanbeyan in 2007 (I have some reservations about the latter argument, noting that the children would have been only eight and three at that time).
The Public Trustee has not permitted the applicant’s brother to move into the house at Kambah, but has offered to transfer the property to him on payment of the shortfall in the estate, some $22,000.00. He would have to borrow this amount against the value of the property, which he could not do without a transfer. He says in his affidavit that he has always been prepared to pay his sisters the $10,000.00 left to them in his mother’s will. It is clear from his affidavit that he could afford to do this only by selling the house or borrowing against its security.
In considering the application for extension of time, it is necessary for me to weigh in the balance the applicant’s explanation for her delay, the prospects of her application succeeding if an extension is granted, and any prejudice to her brother which might arise from the fact that the application was commenced in December 2010 rather than prior to 14 November 2009.
As to prejudice, I do not take into account the possibility that the plaintiff might succeed in the application, thereby reducing the benefit to her brother under the will. To the extent that this might be the outcome if the extension is granted, it would have been at least as likely to have resulted if the application had been brought in time. I can discern no other prejudice arising from the delay.
On 16 January 2009, the Public Trustee wrote to the applicant’s brother with a relatively detailed report on the position of the estate. The letter included a statement that the Public Trustee was on notice that the applicant and her sister might commence legal proceedings to challenge their mother’s will. The letter made reference to the possibility of proceedings being brought under the Family Provision Act.
There is no other evidence about the notice given by the applicant and her sister to the Public Trustee. The passage in the letter is undoubtedly suggestive of the applicant having had some awareness of her right to bring the present proceedings as early as January 2009, but it is not really sufficient to satisfy me that that was the position. An application under the Act is not strictly a challenge to the will, an expression more consistent with an attack on the testamentary capacity of the testator when she made the will. I would not infer from the Public Trustee’s letter that any notice from the sisters made any reference to the Act. I cannot even conclude from the letter that there was a written notice, or that the present applicant had anything to do with whatever communication took place.
It seems to me otherwise that the unchallenged evidence of the applicant provides a credible explanation for her failure to commence proceedings under the Act in time, and for the delay of thirteen months thereafter before she did so.
As to prospects of success, it seems to me more likely than not that when she made her will, the deceased was of the view that there would be enough in her estate to cover the legacy to the daughters, the bequest of the house to her younger son, and testamentary expenses, leaving at least some residue to be divided between the three named children. Notwithstanding the expressed intention of the son, there is a doubt in my mind as to whether on its correct construction the will would require him to pay $5,000.00 each to his sisters. It may be that the correct construction of the will is that he would get the house first, and that the sisters would get their legacy only if there were sufficient additional funds in the estate, which there are not. Accordingly it seems to me that if the deceased had known what her estate would consist of at the time of her death, she would have made provisions in her will for her family somewhat differently.
Additionally to that, when one compares the financial situation of the applicant and of her brother, it seems to me that the applicant has a reasonably arguable claim for some further provision out of the estate.
I am accordingly satisfied that on the facts before the court, time should be extended to permit the applicant to bring her application. Time will be extended to 22 December 2010, the date when the originating application was filed.
I should not be taken to be suggesting that the applicant has any realistic prospect of being granted from the estate as much as half or even one-third of its value, notwithstanding the 2000 agreement between the three children of the deceased. It is very clear that the intention of the deceased was to provide the major benefit from her estate to her younger son, and that wish should be respected.
I take account of the fact that the other sister has not made a claim on the estate, or sought an extension of time to do so.
I am however of the opinion that the plaintiff has reasonable prospects of obtaining some further provision out of her late mother’s estate.
Having expressed those provisional views, admittedly on the limited evidence before the court on this application for extension of time, I am concerned that the estate is a relatively small one and that the expense of taking the application to a hearing would be quite out of proportion to the value of the assets. In the circumstances I shall, if necessary, refer the proceeding under rule 1179 of the Court Procedures Rules 2006 to mediation. In the hope that the parties can agree on a mediator and on the orders which should be made in that regard, I propose to stand the matter over for twenty-one days for further directions if necessary.
I have not heard submissions about the costs of the application for extension. My provisional view is that the applicant, who comes to the court seeking an indulgence, should bear her own costs of the application for extension, and that the other parties (the Public Trustee and the applicant’s brother) should have their costs out of the estate. I shall give the parties an opportunity to be heard in case there is some difference of opinion about costs.
It seems to me that the applicant’s brother should be a defendant to the proceedings. I order that he be joined as second defendant.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 31 January 2012

Counsel for the plaintiff:  Mr CM Erskine SC
Solicitors for the plaintiff:  Certus Law
Counsel for the first defendant:  Mr J Moffett
Solicitors for the first defendant:                  Snedden Hall & Gallop
Counsel for the second defendant:                Mr AP Jones
Solicitors for the second defendant:              AP Jones and Co
Date of hearing:  20 May 2011
Date of judgment:  31 January 2012

[2012] ACTSC 4

January 31, 2012