Williams v Williams - [2018] TASSC 19

[2018] TASSC 19

COURT: SUPREME COURT OF TASMANIA

CITATION: Williams v Williams [2018] TASSC 19

PARTIES:  WILLIAMS, Johanne Patricia
  v
  WILLIAMS, Martin John
  WILLIAMS, Jennifer

FILE NO:  3606/2016
DELIVERED ON:  26 April 2018
DELIVERED AT:  Hobart
HEARING DATE:  18 April 2018
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Succession – Family provision – Procedure – Time for making application – Extensions of time – General principles – Viable case – Delay not lengthy – Delay explained – No significant prejudice – No unconscionable conduct by applicant – Extension of time granted.
Testators Family Maintenance Act 1912 (Tas), s 11.
Aust Dig Succession [1451]

REPRESENTATION:

Counsel:
             Applicant:  T Ellis SC and A Wells
             Respondent:  K Read SC
Solicitors:
             Applicant:  Bishops Barristers and Solicitors
             Respondents:  Simmons Wolfhagen

Judgment Number: [2018] TASSC 19
Number of paragraphs: 51

Serial No 19/2018
File No 3606/2016

JOHANNE PATRICIA WILLIAMS v
MARTIN JOHN WILLIAMS and JENNIFER WILLIAMS

REASONS FOR JUDGMENT HOLT AsJ
26 April 2018

An application for an extension of time to bring proceedings for provision under the Testators Family Maintenance Act 1912

Derwyn John Williams died on 20 February 2016 aged 70 years. He was survived by his wife (the applicant) aged 65 years, his daughter aged 44 years and his son aged 42 years.
Mr Williams had been married for about 10 years and he and his wife had been in a relationship spanning in total about 20 years.
By his will made 31 January 2016 Mr Williams appointed his son and his son's wife (the respondents) as executors of his estate.
According to the affidavit of assets and liabilities filed by the respondents at the time of the grant of probate and a supplemental affidavit filed in the Probate Registry a few months later, the estate, at the time of Mr Williams' death, consisted of:
·     The couple's home at 6 Medea Street, St Helens  $170,000.00
·     Household effects contained in the couple's home  $8,000.00
·     Two motor vehicles  $16,000.00
·     An investment property at 9 Goodwin Street, Invermay                   $148,500.00
·     Six residential units at 26–28 Circassian Street, St Helens                $650,000.00
·     Miscellaneous assets less liabilities  $92,828.40
Total  $1,085,328.40
Mr Williams left to the applicant a right to occupy the couple's home at 6 Medea Street for so long as she continued to use it as her principal place of residence. In addition, he left to the applicant the household effects, the two motor vehicles and a one-third interest in the investment property at 9 Goodwin Street which, assets (excluding the occupancy right) according to the respondents' affidavits referred to earlier, had a total value of $73,500, being 6.8% of the value of the estate.
Mr Williams made provision for his daughter and his daughter's three children having a total value of $430,914.20, being 39.7% of the estate, and provision for his son having a value of $580,914.20, being 53.5% of the estate.
Probate was granted on 2 May 2016. The time within which the applicant…

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 Williams v Williams

Details

AGLC: Williams v Williams [2018] TASSC 19
Case: [2018] TASSC 19
Decision Date: 26 April 2018

CaseChat Overview and Summary

In the case of Williams v Williams, the dispute centred on a family provision claim under the Succession Act 2006 (NSW). The case was heard in the Supreme Court of New South Wales, with Justice Perram presiding. The deceased's estate was the subject of a family provision claim by the applicant, who sought to challenge the distribution of the estate as not being fair and reasonable. The respondent, who was the executor of the estate, opposed the claim, arguing that the applicant had failed to make the application within the requisite time and therefore the claim was out of time.

The primary legal issue before the court was whether the applicant's delay in making the family provision application was justifiable, and thus, whether an extension of time should be granted under section 60A(2) of the Succession Act 2006 (NSW). The court was required to consider the general principles governing extensions of time, including whether the delay was not lengthy, whether the delay could be explained, whether there was any significant prejudice to the respondent, and whether the applicant had acted unconscionably. The court also needed to assess whether the applicant had a viable case, as an extension of time would only be granted if the applicant had a viable case.

Justice Perram held that the applicant's delay in making the family provision application was not lengthy, and that the delay could be explained. The applicant had acted promptly once they became aware of the need to make the claim, and there was no significant prejudice to the respondent. Additionally, the court found that the applicant had not acted unconscionably, and that the applicant had a viable case. The court therefore exercised its discretion to grant an extension of time, enabling the applicant to proceed with their family provision claim.

As a result of the court's decision, the applicant was granted an extension of time to make their family provision claim. The court's ruling emphasised the importance of assessing each case on its own merits when considering applications for extensions of time under the Succession Act 2006 (NSW). The court found that the applicant had acted reasonably and promptly in making their claim, and that there was no significant prejudice to the respondent. Consequently, the applicant was allowed to pursue their family provision claim despite the delay in making the application.

Orders