Vogdanos v Kriaris
[2012] VSC 248
•19 June 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT
No. 2553 of 2012
IN THE MATTER of section 99 of the Administration and Probate Act 1958
and
IN THE MATTER of the estate of CONSTANTINOS VOGDANOS in the Will called
CONSTANTINO VOGDANOS also known as CON VOGDANOS (deceased)
| STAMATIOS VOGDANOS | Plaintiff |
| v | |
| ANASTASIOS KRIARIS (who is sued as the executor of the Will of CONSTANTINOS VOGDANOS, deceased) | Defendant |
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JUDGE: | McMillan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2012 | |
DATE OF JUDGMENT: | 19 June 2012 | |
CASE MAY BE CITED AS: | Vogdanos v Kriaris | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 248 | |
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ADMINISTRATION AND PROBATE – Application under s 99 of the Administration and Probate Act 1958 for extension of time to commence application under s 91 of the Administration of Probate Act 1958 – Delay – Merits of the claim – Prejudice to any beneficiaries.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.D. Shepherd | GPZ Pty Lawyers |
| For the Defendant | Ms L. Glass | S. Kourkoulis & Associates |
HER HONOUR:
Introduction
The plaintiff, pursuant to s 99 of the Administration and Probate Act 1958 ("the Act"), makes an application to extend the time within which he may commence an application under Part IV of the Act seeking further provision for his proper maintenance and support from the estate of his late father, Constantinos Vogdanos ("the deceased").
In making this application the plaintiff relies on his two affidavits sworn on 1 May and 22 May 2012. The defendant has not filed any affidavits in this proceeding and did not make any submissions on the merits of the application. At the hearing, counsel for the defendant said that the defendant would abide by the decision of the Court.
Factual background
The deceased died on 22 October 2010, leaving a will dated 26 September 2007. At the time of his death, the deceased was aged 78 years. The deceased's former wife died on 14 April 2012. There are three children of the marriage — the plaintiff born 3 June 1962 and twin daughters, Ms Stella Ferentinos and Ms Agorastoula Vogdanos, born 26 September 1972. The plaintiff deposes that Ms Ferentinos has no children and is divorced and Ms Vogdanos has one child from her first marriage and a second child from her second marriage.
The deceased's will appointed his nephew, the defendant, as his executor. Pursuant to his will, the deceased gave the residue of his estate in equal shares to his three adult children. The three children survived the death of the deceased.
Probate of the deceased's will was granted to the defendant on 8 August 2011. According to the inventory of assets and liabilities filed in support of the application for a grant of probate, the deceased left an estate of $502,007.02 with no liabilities. The principal asset of the estate was the deceased's residence at 6 Hodgkinson Court, Springvale, Victoria. The property has been sold for $461,000. The net estate is now $463,007, which sum is held by the defendant's solicitors.
The Evidence of the Plaintiff
The plaintiff was married in 1988. He had a son born on 23 October 1989. The plaintiff's wife and son died in a car accident in 2001. After the death of his wife and son, the plaintiff was involved in a motor bike accident and suffered substantial injuries, for which he received approximately $32,000 as compensation. The plaintiff used this payment for his general living purposes. As a result of his injuries, the plaintiff is on a disability pension of $630 per fortnight.
The plaintiff says that as well as his physical injuries from the accident, he suffered brain damage, including bruising of the brain and a haemorrhage in the brain. He also had surgery to his lower back. Apart from these injuries, he suffers from epilepsy, asthma, severe depression and anxiety.
The plaintiff says he has no capacity for employment because of these disabilities and has no means of supporting himself other than by the receipt of the disability pension. He has no other assets other than his personal clothing.
Since 14 May 2012, the plaintiff has lived in permanent accommodation with a friend at a property rented by his friend in Noble Park. His monthly household expenditure is $1,047 (made up of rent, gas, electricity and telephone) and his monthly personal expenditure is $940 (made up of food and drink, newspapers, cigarettes, magazines and public transport).
The plaintiff believes that his sisters are generally well off. They each own property and motor vehicles and appear to be very comfortable. He also believes there would be no prejudice to his sisters were the Court to grant an extension of time.
The Plaintiff’s Relationship with the Deceased
The plaintiff lived with his father from 2006-7 onwards and spent all of his time caring for him. At some point in time, his father was diagnosed with cancer. He cared for his father throughout this illness until his death in October 2010. He cooked for him, kept his house, took him to medical and hospital appointments and, after his father's death, continued to live in his father's home. He gave evidence that his two sisters did very little, if anything, to care for his father or to support his father in his hours of need.
The Plaintiff's Awareness of the Deceased's Will
After the death of his father, the plaintiff was not provided with a copy of his father's will. Until he attended at the office of the defendant's solicitors on 19 April 2012, he was not aware of the terms of the will, that probate had been granted to the defendant or what a grant of probate meant. He was aware that the home had been sold because his sisters made the arrangements for the sale of the property and insisted that he should not be in attendance at the home during the period that the property was marketed for sale.
He became aware of his right to make a claim for further provision as a result of a meeting with his solicitors on 20 April 2012. At that meeting, he was advised that he had a right to contest the provisions of the will. He was advised that he has a strong claim because of his impecuniosity, his health and his care and affection of his father throughout the whole of his life, in particular, during the latter stages of his life when his father was suffering from cancer.
Applications under s 99 of the Act
As stated above, probate of the will was granted to the defendant on 8 August 2011 and therefore, under s 99 of the Act, the time for making a Part IV application expired six months later on 10 April 2012. As a result, the plaintiff has brought an application under s 99 of the Act for an extension of time.
Section 99 of the Act provides:
Time within which application may be made
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):
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 be made before the final distribution of the estate and no distribution of any part of the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon.
Provided further that the time for making an application under this Part shall be extended by a period equal to the period between the commencement of proceedings in an application under Part V and the making of an order by the Court granting or dismissing the application.
The applicant is required to make out a case to justify the granting of an extension of time. The Court's discretion in this regard is broad and unfettered by any "rigid rules"[1] and must be exercised judicially.[2]
[1]Ansett v Moss [2007] VSCA 161, [6] (Buchanan JA).
[2]Menzies v Marriott [2009] VSC 345.
In satisfying the onus of proof in an application for an extension of time,[3] an applicant must show the reasons why there has been a failure to apply within time and why such failure should be excused.[4] An applicant must apply promptly for an extension of time after he or she becomes aware of the right to apply for an extension of time.[5] Further, the actual merits of the claim have relevance to the exercise of the Court’s discretion. Whether a deceased testator failed to make adequate provision for an applicant is determined by consideration of the facts and matters known to the deceased at the time of death. Some evidence which shows that an applicant has an arguable case must be adduced on an application for an extension of time.[6] Another relevant matter for the Court is whether there is prejudice to the beneficiaries if the applicant were successful.
[3]See, for example, Re Lauer (dec’d) [1984] VR 180; Cox v Hammond (SC) (Vic), Tadgell J No 7641/91, 27 June 1991, unreported, BC91000658.
[4]Re Guskett (dec’d) [1947] VLR 212 at 214; Re Nassim (dec’d) [1984] 51 at 55; West v West (1996) 5 Tas R 392 at 397; Ashhurst v Moss & Ors [2006] VSC 287 at [106] citing Re Guskett.
[5]See, for example, Re Guskett deceased [1947] VLR 212 at 214; Re Salmon (dec’d) [1981] Ch 167 at 175; Ashhurst v Moss & Ors [2006] VSC 287 at [106].
[6]See for example, Groser v Equity Trustees Pty Ltd [2007] VSC 27 [36-39].
A final consideration in determining applications under s 99 of the Act is whether the estate has been finally distributed, in such circumstances no extension application can be made. As stated, the estate in the present matter has not been finally distributed.[7]
[7]See above paragraph 5.
Delay
In this case, the period of delay in making the application for extension of time was 25 days - the time for making an application expired on 10 April 2012 – the originating motion and summons in this proceeding were filed on 4 May 2012.
When the plaintiff became aware of his rights to make a claim for further provision on 20 April 2012, his solicitors forwarded a fax to the solicitors for the estate on the same day giving notice that the plaintiff intended to make an application for a greater share of the estate and put the solicitors for the defendant on notice that no distribution of the estate should be made in light of his intention to make a claim for further provision. Before obtaining advice from his solicitors on 20 April 2012, the plaintiff was ignorant of the contents of the will of the deceased.
In my view, the delay is short, there is a credible explanation by the plaintiff for his delay and the plaintiff acted promptly once he became aware of his rights. Ignorance of the ability to claim upon an estate has been accepted as a reasonable excuse for delay.[8] The period of delay is minimal in the circumstances of this case.
[8]Ansett v Moss [2007] VSCA 161 at [6], per Buchanan JA; Keil v Cook and anor [2008] VSC 53, per Hollingworth J.
Merits of the Claim
In addition to the issue of delay, the actual merits of the claim, which show the applicant has an arguable case, have relevance to the exercise of the Court's discretion.[9] In considering the merits of the claim, the Court must have regard to the criteria set out in s 91(4)(e)-(p) of the Act.
[9]See, for example, Valbe v Irlicht [2001] VSC 53; Groser v Equity Trustees Ltd [2007] VSC 27 at [36]; Ansett v Moss [2007] VSCA 161 at [11], per Buchanan JA.
For the purposes of this application, I am not required to determine the claim for further provision and my view has no binding force on the ultimate issue at any trial. As an adult child of the deceased, the deceased, prima facie, had a responsibility to make provision for the plaintiff's proper maintenance and support. In his will, the deceased did make provision for the plaintiff. Whether or not further provision over and above his one third share of the estate should be ordered is a matter for the trial judge. Having regard to the evidence of the plaintiff[10] as it relates to s 91(4)(e)-(p) of the Act, in my view, the plaintiff has established that he has an arguable case, and not a hopeless case.
[10]See paragraph 7 – 10 above.
Prejudice to other beneficiaries
As stated above, the plaintiff gave evidence that there would be no prejudice to the defendant in granting this application[11] and no evidence was provided by the defendant to the contrary.[12] I therefore find that there would be no prejudice to the beneficiaries and the plaintiff should be granted an extension of time.
[11]See paragraph 10 above.
[12]See paragraph 2 above.
Further matter
There is a further matter upon which I will express my view, although it is not necessary for the determination of this application. During the course of his submissions, counsel for the plaintiff contended that, in the event that an extension of time is granted, the plaintiff will claim the whole of the estate for his proper maintenance and support.
In my view, such a claim is a bold claim. It is bold because it fails to strike the necessary balance in dealing with applications under Part IV of the Act. In claiming the whole of the estate, the plaintiff completely disregards the intentions of the deceased. As was stated by Dixon CJ in The Pontifical Society for the Propagation of the Faith and St. Charles Seminary, Perth v Scales:[13]
All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.
[13](1962) 107 CLR 9, 19.
Whilst I have concluded that an extension of time should be granted to the plaintiff, I observe that the net estate of the deceased is modest. Prolonged litigation in maintaining what, in my view, is an overly ambitious claim will substantially deplete the size of the estate, to the detriment of all of the deceased's intended beneficiaries.
I consider the most expedient and cost effective manner for the future conduct of the proceeding is to order a mediation before an Associate Justice before the filing of any further affidavits. The position of the adult daughters of the deceased can be presented adequately at mediation without the filing of affidavits at this stage.
Conclusion
Accordingly, I will make the orders as sought by the plaintiff in the minutes of proposed orders with the exception of order 4 and 5 which are in relation to the defendant filing affidavit material prior to a mediation being conducted.
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