Triplett v The Public Trustee - [2009] WASC 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TRIPLETT -v- THE PUBLIC TRUSTEE [2009] WASC 64

CORAM: MASTER SANDERSON

HEARD: 10 FEBRUARY 2009

DELIVERED : 24 MARCH 2009

FILE NO/S: CIV 1882 of 2008

BETWEEN: PHYLLIS MAY TRIPLETT
First Plaintiff
DONALD GEORGE TRIPLETT [Action discontinued 15 August 2008]
Second Plaintiff
GILBERT HAROLD TRIPLETT
Third Plaintiff
AND
THE PUBLIC TRUSTEE as executor of the estate of HILDA JANE TRIPLETT
First Defendant
RODNEY TRIPLETT as executor of the estate of GLEN TRIPLETT
Second Defendant
RODNEY TRIPLETT
Third Defendant

Catchwords:

Inheritance (Family and Dependants Provision) Act 1972 (WA) - Application to extend time - Turns on own facts

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr R J Nash
Second Plaintiff             :     Action discontinued
Third Plaintiff                :     Mr R J Nash
First Defendant              :     Ms S J Culver
Second Defendant         :     Mr D L Jones
Third Defendant            :     Mr D L Jones

Solicitors:

First Plaintiff                  :     Friedman Lurie Singh & D'Angelo
Second Plaintiff             :     Not applicable
Third Plaintiff                :     Friedman Lurie Singh & D'Angelo
First Defendant              :     Public Trustee (WA)
Second Defendant         :     Young & Young
Third Defendant            :     Young & Young

Case(s) referred to in judgment(s):

Clayton v Aust (1993) 9 WAR 364
Duncan v Perpetual Trustees WA Ltd (Unreported, WASC, Library No 940103, 4 March 1994)
Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134
Pugh v Delgado [2006] WASC 267
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11

MASTER SANDERSON: This is the plaintiffs' application for an extension of time to bring an application under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act). If granted, the application would require the time for bringing the application to be extended for some 23 years. Clearly, such a step is unusual and represents a remarkable case. The place to start then is with the facts.
The first and third plaintiffs (the plaintiffs) are two of nine children born of the union of William Firth Triplett (William) and Hilda Jane Triplett (Hilda) (the second plaintiff discontinued his action on 15 August 2008). Hilda, from a previous relationship, had a child, Elsie Gilbert, who lived and grew up separately from the Triplett family.
William and Hilda moved to Australind prior to William's death. He died on 23 November 1973, leaving a will which provided that all of his assets were to go to his wife Hilda if she survived him. Otherwise, he left all his property to his nine children in equal shares. Hilda survived her husband and inherited all of his property. For the remainder of her life, Hilda lived at her home at 46 Old Coast Road, Australind.
Glen Triplett (Glen) was one of the nine children of the Triplett family, being the sixth eldest. Glen was never married and had no children. He lived with his mother Hilda at the family home at Australind until she died on 3 December 1984.
Shortly following the death of William, Hilda spoke of her intentions to the first plaintiff in relation to her estate. She advised that she wished to leave the family home to Glen, to live in until he died, provided Glen made a will leaving the house to the rest of Hilda's children.
Glen was aware of his mother's wishes with respect to the family home and acknowledged to both his mother and the first plaintiff that he would abide by his mother's wishes. The third plaintiff was also aware of the arrangement between Hilda and Glen. In his affidavit of 25 July 2008 at par 11, he refers to this as 'a common understanding of all family members'.
As at 7 November 1953, Glen had a will leaving all his property to his parents and such siblings as survived him in equal shares. That will appeared to give effect to his mother's wishes and the common understanding within the family. On 28 October 1974, Hilda made a new will leaving the family home, the house contents and her caravan to Glen absolutely. The residue of her estate was left to her nine other children, including Elsie Gilbert. Hilda died on 3 December 1984. The executor of her estate was the Public Trustee, the first defendant. Probate was granted to the Public Trustee on 8 February 1985.
On distribution of Hilda's estate, each of the plaintiffs (and the other surviving siblings) received the sum of $2,334 from their mother's estate. Glen received the family home, the house contents and the caravan. The plaintiffs say, relying upon the common understanding within the family and out of the moral duty to honour their mother's wishes, they determined not to seek to challenge Hilda's will or to seek further provision from her estate under the Act. As at the date of Hilda's death, the plaintiffs were to benefit upon Glen's death in any proceeds arising from the distribution of Glen's estate. At no stage during his lifetime did Glen give any indication that he had or was intending to change his will in such a way that would not honour the family understanding.
Glen died on 18 November 2007. He left all of his property, including the family home, to his nephew Rodney Triplett, the third defendant. Rodney was appointed as trustee of Glen's estate. Glen had made a new will on 20 June 2006, revoking his previous will and, in effect, not honouring the family understanding. The plaintiffs were not made aware of the contents of Glen's June 2006 will until late November 2007. They contacted solicitors seeking advice in December 2007 and met with their solicitors in January 2008. These proceedings were then commenced on 21 July 2008. No grant of probate has yet been made in relation to the estate of Glen. The second defendant has been appointed under the terms of the will as executor.
This version of events is largely taken from the affidavits filed by the plaintiffs in support of this application. Counsel for the defendants took issue with some of the evidence. In particular, it was suggested that evidence as to discussions which took place between the plaintiffs and Hilda may not have given rise to the common understanding within the family as alleged. It is difficult to see how the defendants could challenge that evidence. In an application such as this, one of the matters which the plaintiffs must deal with is that explanation for the delay in bringing the application. They have given evidence as to their understanding of the position. There is nothing in the evidence to suggest that such a view was obviously unreasonable. In my view, there was no basis upon which cross‑examination of the plaintiffs could be ordered, nor was there any basis for rejecting their affidavit evidence. I have therefore dealt with this matter essentially on the basis that the evidence offered by the plaintiffs is as set out above.
The legal principles which govern an application such as this were not in dispute. Section 7(2) of the Act provides:
(2)No application [for provision under the Act] shall be heard by the Court unless -
(a)the application is made within 6 months from the date on which the Administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b)the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
Of course, this is not a case where the plaintiffs seek to challenge the distribution of the estate of Glen. They need to challenge the distribution of Hilda's estate. It was not suggested that any claim could arise under the Act in favour of the plaintiffs in relation to Glen's estate. Rather, what the plaintiffs wish to put is an argument that Hilda's will did not adequately provide for them and that provision should now be made.
The principles to be applied on an application for leave to apply out of time are dealt with in Clayton v Aust (1993) 9 WAR 364, 366 ‑ 367. They are:
(1)The discretion is unfettered but is one that is to be exercised judicially and in accordance with what is just and proper.
(2)The onus lies on the plaintiff to establish sufficient grounds for taking the case out of the general rule and depriving those who are protected by its benefits.
(3)The time limit in the Inheritance Act is a substantive provision and not a mere procedural time limit. The burden on the plaintiff is not trivial.
(4)It is material when considering the application to consider:
(a)how promptly and in what circumstances the plaintiff has sought the permission of the Court after the time limit has expired;
(b)whether or not there have been negotiations with the defendant. If negotiations were commenced within the time limit and time has run out while they are proceeding, this is likely to encourage the Court to extend the time. Negotiations commenced after the time limit will also aid the plaintiff if the defendant has not taken the point that the time has expired.
(5)It is relevant to consider whether or not the estate has been distributed before a claim was made or notified.
(6)It is relevant to consider whether refusal to extend the time would leave the plaintiff without redress against anybody.
There is one further qualification. An applicant must show that there is an arguable case for relief. However, it is inappropriate in an application for an extension of time to assess the merits of the substantive claim. These principles were discussed in some detail in Pugh v Delgado [2006] WASC 267 [67].
Of the six criteria set out in Clayton v Aust, points 4 and 6 can be put to one side. Given the length of time that has expired since Hilda's death, it is not really relevant to consider how promptly action was taken. It is sufficient to say that, after Glen's death, the plaintiffs took advice and brought this action within a reasonable period. It is not really surprising that it should have taken some time for a decision to be made to initiate this application and, insofar as there has been any delay, it has been adequately explained, in my view, by the affidavit of Neville Friedman sworn 10 November 2008. There is, of course, no question of the plaintiffs having a right of action against anyone else if this application is unsuccessful.
In relation to the distribution of the estate, it is the fact that Hilda's estate was distributed many years ago. But the main asset of that estate, the family home, passing as it did to Glen, remains intact. At law, the asset has been distributed - it passed to Glen pursuant to the terms of Hilda's will. But this is a different case, to one where there was, say, a fund of money which has been distributed. If leave is given to proceed in that circumstance, and the claim is successful, then it may be the beneficiaries would have to disgorge funds consequent upon a successful application. But that is not the case here. There is only one person who would be affected, and that is Rodney Triplett. In one sense, there has been no 'distribution' to him. In short, the fact of the distribution of the estate is not a factor which, in my view, would preclude an extension of time being granted.
That then leaves three questions, the answers to which determine this application. Really, the first two can be taken together. Are there sufficient grounds for taking this case out of the general rule and depriving those who are protected by it of its benefits? In answering this question, the court must be satisfied that the burden on the plaintiffs is discharged and the burden is by no means trivial. The third and final consideration is whether or not there is an arguable case for relief.
It is convenient to consider the last of these questions first. When considering a claim under the Act, the court embarks on a two‑step process. The first step is to determine whether the jurisdiction of the court, to make provision (or further provision) out of the estate for the claimants, has been enlivened: this is the jurisdictional question. If the court is satisfied that its jurisdictional power has been enlivened, then the second step is for the court to exercise its discretion to determine what further provision is required to be made from the estate in order to satisfy the requirement that adequate provision for the proper maintenance, support, education and advancement in life is made for the benefit of the claimants. Whether or not the jurisdictional test is satisfied is a question of fact. The court must consider the claimants' financial circumstances and needs and consider them in the light of all the competing claims upon the testator's bounty. The jurisdictional issue is determined as at the date of death of the testator, whereas the exercise of the court's discretion must have regard to facts as at the date of the exercise of that discretion. These principles, which were accepted by all parties, emerged from a number of cases including Vigolo v Bostin [2005] HCA 11.
In Singer v Berghouse (1994) 181 CLR 201, Mason CJ, Deane and McHugh JJ said, in considering whether adequate provision had been made, the court was required to consider:
… what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty (210).
There is no special approach which courts adopt to claims made by adult children. Difficult financial circumstances or modest means of an adult child will often justify the making of a significant provision under the Act. Ultimately, however, the size of the estate, the financial circumstances of the claimants at the relevant time, a comparison of the claimants financial circumstances to other claimants and beneficiaries, and the totality of the circumstances will be factors relevant to the court's consideration: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134.
The greater the inadequacy of the claimants' financial position to provide for his or her proper maintenance, the greater the assessment is likely to be. That is always subject to other considerations, including the capacity and the size of the deceased estate to meet the claim and any other competing claims on the testator's bounty.
For present purposes then, the question then is first, whether the plaintiffs have an arguable case that they can satisfy the jurisdictional test. In answering this question, the court must have regard to the financial position of the plaintiffs at the time of Hilda's death. The affidavit material filed by the plaintiffs shows that, as at the date of Hilda's death, the first plaintiff and her husband were living on a pension. Their assets comprised their home at 98 Winfield Street, Hamilton Hill, an old car worth $1,000 and a second‑hand caravan worth about $11,000. They had savings of $5,000. The value to be ascribed to these assets is their value as at the date of Hilda's death.
The third plaintiff, at the relevant time, was living with his wife and three sons in a house in Esperance. The house is said to have been worth $38,000, and had a mortgage of $13,000. The couple owned a caravan on which they owed $4,000. They owned a Mitsubishi utility on which they owed between $4,000 and $5,000. The third plaintiff was working as a bull dozer driver and says that he was living 'from pay to pay'.
The evidence does not disclose the value of the Australind property. However, it was submitted on behalf of the plaintiffs that its value, even in 1984, would have been such as to allow adequate provision to be made for the plaintiffs and for Glen. On balance, I am satisfied that the plaintiffs have an arguable case on this question. It is certainly not a situation where, in 1984, the plaintiffs were so well placed that it is possible to say, with certainty, the courts jurisdiction would not be enlivened. Once that point is reached, the matter need not be taken any further.
It is also arguable, in my view, that as at the date of any decision, the plaintiffs will not be so well placed as not to require any further provision from Hilda's estate. There is some evidence in the plaintiffs' affidavits which suggests they both are modestly placed at present. Of course, they are elderly and what the position might be when this matter eventually gets to trial is difficult to assess. But the so‑called second question - that is to say, whether any distribution ought be made to the plaintiffs and, if so, how much - is a matter for discretion. In my view, the evidence is not so lacking as to be able to finally conclude that neither of the plaintiffs would succeed in persuading a court they were entitled to a distribution. The matter is arguable.
That then leads to the final and all important question - are there sufficient grounds to warrant the extension of time being granted. It is important first to identify what the circumstances are that the plaintiffs say warrants the extension of time. Put simply, it is the plaintiffs' case that they were misled into believing they would benefit from Hilda's estate on Glen's death. That belief was dependent upon their trusting Glen. Hilda's will did not leave the family home to Glen for his life with the property to pass to such of his siblings as might survive him. There was never any doubt about the absolute terms of Hilda's will. Really, the complaint is that Glen played the plaintiffs' false. Is that fact sufficient to take this matter out of the ordinary and justify the extension of time?
There have been a surprising number of cases where the delay in making an application ran to many years. In Duncan v Perpetual Trustees WA Ltd (Unreported, WASC, Library No 940103, 4 March 1994), Bredmeyer M dealt with an application that was 24 years late. The learned master referred to a number of cases, where varied substantial periods of delay, ranging from 10 years through to 22 years, had existed, yet leave to bring an application out of time was granted. So while the delay here is very long, and is undoubtedly a factor against leave being granted, this is by no means a unique situation. Indeed, in the Duncan decision, Bredmeyer M granted an extension of time despite the delay. It must be said, however, that the Duncan decision, and others, are of limited value. Each case must be treated on its merits and the undoubted discretion be exercised based upon the facts in each particular case.
In this case, the facts against the grant of the extension are the length of the delay, the fact the plaintiffs were aware at all times that Hilda's will did not guarantee them any interest in the family home and the difficulties associated with determining a claim so long after the death of the deceased. The problems are compounded by the fact that only two of Hilda's children have brought an application. In all, there are nine potential claimants, some of whom may decide to advance their argument, others of whom may not. Any application may take years to resolve and may be complex and expensive.
On the other hand, the plaintiffs genuinely believed that they would ultimately benefit from Hilda's estate. While they could have taken some action after Hilda's death, they did not do so because they trusted Glen. No one could suggest that reposing such trust in their brother was unreasonable. The plaintiffs are of modest means and have an arguable case. While they are elderly, if their claim is made out, it is possible their circumstances will be materially improved. Although the estate has been distributed, the family property remains intact and can be accessed to enable a distribution to be made.

There is no doubt that this case is finely balanced. In the end, I have determined that leave ought be refused. On consideration of the respective merits of the parties arguments, I am satisfied the factors against the grant of leave marginally outweigh those in favour. While there is no one single factor that is determinative, it seems to me the length of the delay is such in this case that is just would not be appropriate for leave to be granted.
In the circumstances then I would dismiss the plaintiffs' application. I will hear the parties as to costs.