Taylor v McCardel
[2000] VSC 312
•10 August 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 5007 of 2000
IN THE MATTER of Part IV of the Administration and Probate Act 1958
and
IN THE MATTER of the Will and Estate of Kenneth Lewis McCardel deceased
| CHERRY LOUISE TAYLOR | Plaintiff |
| v. | |
| SAMUEL LEWIS McCARDEL AND CHERRY VERONICA GLEN McCARDEL (who are sued as the Executors of the Will of the abovenamed deceased) | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 AUGUST 2000 | |
DATE OF JUDGMENT: | 10 AUGUST 2000 | |
CASE MAY BE CITED AS: | TAYLOR v. McCARDEL AND ANOR. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 312 | |
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CATCHWORDS: Testators Family Maintenance – Application for extension of time to make claim – Reasons for delay – Arguable case – Administration and Probate Act 1958, s.99.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. R. Boaden | Ralph Lloyd Sampson |
| For the Defendants | Mr. S. Newton | Aaron Zaitman & Associates |
HIS HONOUR:
This is an application brought by the plaintiff against the executors of the estate of her late father pursuant to the provisions of s.99 of the Administration and Probate Act 1958 seeking an extension of time within which to make an application to the Court that adequate provision be made for her proper maintenance and support out of the estate of the deceased.
The deceased died on 10 September 1997. He left assets valued for probate at $3,834,805 and liabilities of $432,699.
Probate of the deceased's will was granted to the plaintiff's mother and brother on 8 May 1998, they being the duly appointed executors and trustees of the deceased's will and estate.
Apart from a pecuniary legacy of $3,000 the deceased left the whole of his estate in trust for the plaintiff, her mother and her brother.
However, by his will the deceased gave his trustees absolute discretion to pay or apply any of the income or capital of the estate for the benefit of any one or more of the beneficiaries in such proportions as they may determine and with no particular requirement that any of the income or capital be paid or made available for any of the beneficiaries.
The provisions of the deceased's will are such therefore, that the trustees could distribute the whole of the estate to themselves if they were so minded. That much was conceded by counsel for the defendants.
It was also conceded by counsel for the defendants that the plaintiff has an arguable case on the merits in that in providing that the balance of his estate be held in trust as he did and by giving his trustees the powers that he did, the deceased failed to make provision for the proper maintenance and support of the plaintiff.
What was contended on behalf of the defendants was that I should not grant the plaintiff the extension she seeks to enable her to make the application.
The foundation for that contention is the content of a letter dated 15 June 1998 faxed from the defendants' then solicitors to the plaintiff. To appreciate the context in which that letter was sent and received by the plaintiff, it is necessary to say something of the plaintiff's background.
The plaintiff was born on 6 December 1959 and was educated in Melbourne.
In 1983 she left Melbourne and proceeded eventually to Turkey where she obtained employment as a flotilla hostess with the Yacht Cruising Association then based in Turkey.
In 1985 she became engaged to the skipper of one of the fleets of boats named Malcolm Taylor.
For the next year or so the plaintiff and Taylor worked for the association first in Yugoslavia and then Greece.
In 1986 the plaintiff and Taylor returned to Melbourne as the plaintiff was then pregnant.
The plaintiff's daughter was born in Melbourne in 1987.
Following the birth of her first child the plaintiff and Taylor obtained employment in Melbourne. On 11 March 1988, which of course was after the death of the deceased, Taylor and the plaintiff married. Shortly afterwards they went to England and then returned to Turkey.
On 10 June 1998 the plaintiff sent a letter to the solicitors acting for the defendants in connection with the deceased's estate seeking certain information concerning the estate (see exhibit CVGM4 to the affidavit of the second defendant sworn 30 June 2000).
By letter of 15 June 1998 faxed to the plaintiff in Turkey, the defendants' solicitors pointed out that as they were acting for the defendants it would be inappropriate to give the plaintiff advice as to her rights concerning her father's estate.
The letter contains the following sentence:
"Clearly, you have 6 months from the date of Probate if you wish to make any claim against the estate and in that respect, and if you wish to find out about your rights, we would suggest that you would need to speak to an independent solicitor."
It was argued on behalf of the defendants that the letter of 15 June 1998 contained a clear notification to the plaintiff of the fact that she was required to make any claim against the estate of her father within six months from the grant of probate and that her failure to do so within the time stipulated by s.99 should now preclude her from being granted any extension.
In her affidavit in reply sworn 26 July 2000 the plaintiff has said this in relation to the letter of 15 June 1998.
"5.I was in turkey at the time, raising two children and coping with a good deal of financial and family stress. I did not know any other lawyer whom I could approach. I spoke to my mother, and she assured me that my brother would make sure that I was looked after and that she was sure he would help me out. I also remained of the hope that my brother would look after me as he had promised in his letter of 26 September 1997 to gift me 10,000 Woodside shares and one seventh of his inheritance from my father's estate. Such gifts have never been formalised or effected.
6.In view of these hopes, and my mother's assurance, I did not seek any independent legal advice until in April of this year, when I consulted my present solicitors and gave instructions for this proceeding to be commenced."
The family stress referred to in paragraph 5 of the plaintiff's affidavit is dealt with in the plaintiff's first affidavit sworn 7 April 2000 the relevant paragraph of which reads:
"24.My husband and I have since separated and divorce proceedings between us are on foot. The money which I inherited was placed in accounts in our joint names, and I am struggling with my husband to recover any of this money, which he has hidden. He has also sold our three yachts to a shelf company. The divorce proceedings were commenced by Malcolm in August 1999 and they are expected to be protracted. A preliminary Court hearing is scheduled to take place on 17 April 2000, and I am advised by my lawyers in Turkey that the matter will finally be heard late in 2000. My husband has indicated through his lawyers that he will not enter into any settlement beforehand, and he is hoping to obtain custody of our children, and therefore a larger share of our joint funds."
In my opinion the plaintiff has satisfactorily explained the reason for her failure to institute an appropriate proceeding during the six month period stipulated by the statute.
I consider that no prejudice has been caused to the defendants by the delay which has occurred in instituting such a proceeding.
As it is clear that the plaintiff has an arguable case for relief I consider that it is in the interests of justice that her application be granted.
The Court orders that:
1.The time within which the plaintiff be permitted to commence an application pursuant to s.91 of the Administration and Probate Act for further provision out of the estate of the deceased be extended to 11 April 2000.
2.Any further affidavits on which the defendants desire to rely herein in opposition to the plaintiff's claim for principal relief be filed and served on the plaintiff by 8 September 2000.
3.Any affidavit on which the plaintiff desires to rely herein be filed and served on the defendants by 6 October 2000.
4.Pursuant to Rule 50.07 of the Rules the proceeding is referred to mediation by a mediator to be agreed between the parties, and in default of agreement to be nominated by the Court, such mediation to take place on or before 31 October 2000.
5. Not more than 14 days and not less than 7 days before the date fixed for
(a) the mediation
(b) the trial
the defendants file and serve on the plaintiff an affidavit setting forth the financial position of the estate.
6.Within 14 days of the date fixed for the mediation by the mediator notify the Associate to the Listing Master whether or not the mediation has concluded.
7.The matter be referred to the Listing Master for a directions hearing to be heard on or after 1 November 2000.
8.Within 7 days after its authentication the solicitors for the plaintiff serve a copy of the order as authenticated on the Associate to the Listing Master.
9. Each party has liberty to apply.
10. The costs of this application are reserved.
11.Authentication of this order by the Prothonotary be dispensed with and the order be signed by a Judge pursuant to Rule 60.04.
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