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Valbe v Irlicht

Valbe v Irlicht

Case [2001] VSC 53 8 March 2001

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SUPREME COURT OF VICTORIA
COMMERCIAL AND EQUITY DIVISION PRACTICE COURT	Not Restricted

No. 4290 of 2000

IN THE MATTER of the Estate of Mary Oniman, deceased

TSIRLIA VALBE	Plaintiff
v
TADEUSZ IRLICHT (in his capacity as executor of the estate of Mary Oniman, deceased)	Defendant

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 February 2001
DATE OF JUDGMENT:	8 March 2001
CASE MAY BE CITED AS:	Valbe v Irlicht
MEDIUM NEUTRAL CITATION:	[2001] VSC 53

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Part IV – Administration and Probate Act – testator's family maintenance – s.99 – extension of time – principles – merits – no arguable case – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Bravender-Coyle	Law Partners
For the Defendant	Mr T. Irlicht	Irlicht and Broberg

HIS HONOUR:

Application by summons in a proceeding instituted by originating motion by the plaintiff seeking an order extending time pursuant to s.99 of the Administration and Probate Act 1958 ("the Act") to enable her to bring a proceeding pursuant to Part IV of the Act.

On 30 November 1990, Mary Oniman ("the deceased") executed her last Will. She subsequently executed three codicils during the period from November 1993 to November 1996.

She died on 31 December 1998 aged 86 years.

Probate of her last Will and codicils was granted by this court on 22 April 1999 to the executor, Tadeusz Irlicht, ("the defendant") who is defendant in this proceeding.

The plaintiff, Tsirlia Valbe, ("the plaintiff") is an elderly woman. She is no relation of the deceased.

The Will and codicils made no provision for her.

The estate was valued at the date of death in the sum of $671,211.41. Some $160,000 has been distributed and at present the value of the estate is approximately $600,000.

The estate was left to four nephews and nieces who reside overseas.

The plaintiff contends that she is entitled to a share of the estate of the deceased and wishes to make application pursuant to Part IV of the Act. She is now out of time. I interpolate to note that the originating motion in fact makes the application pursuant to Part IV although out of time.

The first part of s.99 of the Act provides –

"No application shall be heard by the court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will or of letters of administration (as the case may be)."

It follows that the plaintiff should have made her application on or before 21 October 1999.

Section 99 goes on to provide –

"Provided that the time for making an application may be extended for a further period by the court after hearing such of the parties affected as the court thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall…

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 Valbe v Irlicht

Details

AGLC: Valbe v Irlicht [2001] VSC 53
Case: [2001] VSC 53
Decision Date: 8 March 2001

CaseChat Overview and Summary

Valbe v Irlicht was a matter heard by the Supreme Court of Victoria. Valbe brought proceedings against Irlicht to seek a determination in relation to the administration of the estate of a deceased individual. Specifically, Valbe sought to be recognised as a creditor of the estate for unpaid maintenance payments under section 99 of the Administration and Probate Act 1958 (Vic). Irlicht opposed Valbe’s application on the basis that it was not made within a reasonable time, and sought to have it dismissed. The court was required to determine whether Valbe’s application for an extension of time to be recognised as a creditor should be granted.

The court noted that section 99 of the Act provided that creditors of an estate had to make their claims within a reasonable time after the issue of the grant of probate. The court considered the principles which guided the decision to extend time, including whether there was an arguable case that the delay was justified, and whether the delay had caused any prejudice to the respondent. The court also considered whether there were any merits to the application, and whether it was in the interests of justice to grant the extension. In this instance, the court found that Valbe had not made out an arguable case that the delay was justified, and that there were no merits to the application. Accordingly, the court dismissed the application.

The court ordered that Valbe pay Irlicht’s costs of and incidental to the proceeding.

Orders