Williams v Williams
[2018] TASSC 19
•26 April 2018
[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 could have commenced a claim for further provision from the estate expired on 2 August 2016.
By originating application filed 8 December 2016 the applicant seeks an extension of time for the bringing of her application and for further provision from the estate.
By the time of the filing of the originating application there had already been some distributions, but there remains the home at 6 Medea Street and about $180,000, being the net proceeds of the sale of the investment property at 9 Goodwin Street.
The Testators Family Maintenance Act, 1912, s 11 is as follows:
"Time within which application to be made
(1) Except as provided by subsection (2) of this section, the Court or judge shall have no jurisdiction to hear any application, or to make any order under this Act, unless the summons hereinbefore mentioned be taken out before or not later than three months after the date of grant of probate of the will of the deceased person, or letters of administration of the estate of the deceased person, as the case may be.
(2) Notwithstanding anything in subsection (1) of this section, upon application being made in that behalf by a person claiming the benefit of this Act, the Court or a judge may, after hearing such of the persons affected or likely to be affected by that application as it or he may think fit, extend the time limited by that subsection for the taking out of a summons for such further period as the Court or judge may think necessary.
(3) The powers conferred on the Court or a judge by subsection (2) of this section may be exercised notwithstanding that the time limited by subsection (1) of this section for the taking out of a summons may have expired (whether that time expired or expires before or after the commencement of this subsection).
(4) An application under subsection (2) of this section shall be made before the final distribution of the estate of the deceased person, and no distribution of any part of the estate made before the making of an application under that subsection shall be disturbed by reason of that application or of any order made thereon or in consequence thereof."
By order made 19 October 2017 it was directed that the application for an extension of time be heard and determined first. This is my determination of that application.
The principles applicable to the extension of time application
It was common ground that the approach which I should take to the application is as expressed by me in Nicholas v Tubb [2016] TASSC 53 [3] and [4], where I said:
"3 The discretion is not fettered by the terms of the statute and so there is no exhaustive or rigid list of considerations to be applied. In the circumstances of the present application, and consistently with what Underwood J (as he then was) said in Lazenby v McDermott [2000] TASSC 121, there was no disagreement between counsel that the following matters should be taken into account:
- The strength of the claim.
- The length of the delay.
- The reasonableness of the explanation for the delay.
- The prejudice, if any, to the beneficiaries arising from delay.
- Any unconscionable conduct on the part of an applicant.4 The case which an applicant proposes to present, in the event that time is extended, obviously needs to be considered in most cases. If it is clear that a claim lacks viability, no purpose would be served by extending time. In considering the merits of a prospective claim for provision a court will often only have before it materials in skeletal form and so except in clear cases it would be wrong to attempt to undertake a detailed merits assessment so that a prospective claim might be classified as weak or strong or somewhere in between. Plainly a widow without means and without provision for her future maintenance and support having been made in her husband's will would generally be immediately recognisable as an applicant having a strong claim. Conversely, a wealthy adult child seeking provision from a small estate where there are needy beneficiaries would generally be immediately recognisable as an applicant having a weak claim. Usually, however, a merits assessment of cases in between on an extension of time application would not be productive. Initial impressions might change when all of the evidence has been received and full argument on the family provision application has been presented."
The merits of the prospective claim for provision
Section 3(1) of the Act is as follows:
"If a person dies, whether testate or intestate, and in terms of his will or as a result of his intestacy any person by whom or on whose behalf application for provision out of his estate may be made under this Act is left without adequate provision for his proper maintenance and support thereafter, the Court or a judge may, in its or his discretion, on application made by or on behalf of the last-mentioned person, order that such provision as the Court or judge, having regard to all the circumstances of the case, thinks proper shall be made out of the estate of the deceased person for all or any of the persons by whom or on whose behalf such an application may be made, and may make such other order in the matter, including an order as to costs, as the Court or judge thinks fit."
In considering the merits of the prospective claim for further provision it is neither necessary nor appropriate that I make findings of fact. The evidence presented on the extension of time application may not be the same as the evidence ultimately presented or established at a merits based hearing should time be extended. I confine myself to simply referring to the evidence for the purpose of considering whether, if the evidence is presented on the hearing of a substantive application for further provision, it would be sufficient to give rise to a prospect that the claim might succeed.
I begin with the principles applicable upon an assessment of a claim for provision. The law is well settled by numerous cases and there is no need for me to refer to multiple authorities. For the purpose of this application the principles are sufficiently stated in How v How [2015] TASSC 4.
Firstly, there is a jurisdictional question of fact to be determined. Generally, this question is determined based upon the situation at the date of the death of the testator. The question is, whether 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 other persons who have legitimate claims upon his bounty, has the applicant been left without adequate provision for her proper maintenance and support? If this question is answered in the affirmative, a discretion to intervene is enlivened, with the answer to the question of whether, and if so to what extent, further provision should be made influenced by similar considerations to those applicable to the jurisdictional enquiry which resulted in the finding that the applicant had been left without adequate provision.
The applicant's evidence is that she had assisted her husband with labour for the construction of the couple's home and that as at the date of Mr Williams' death she was unemployed, having resigned from her part-time employment about two years earlier to care for her husband whilst he was receiving treatment for leukaemia. She owned an investment property at 54 Hart Street, Newstead, having a government valuation of $260,000 and returning a rental income of about $235 per week. She had about $17,000 in superannuation investments and about $27,500 in share investments and about $8,000 in cash, with the cash comprised mostly of money which Mr Williams had given to the applicant shortly prior to his death.
There is evidence that, as a result of being married to Mr Williams, the applicant became entitled to receive a war widow's pension of $433 per week upon the death of her husband.
In the event that the applicant wishes to cease residing in the home at 6 Medea Street and wishes to purchase another home, perhaps a home that is low maintenance and near to relatives and medical services, she may or may not have sufficient capital resources to do so and if she is able to move home she may be left without an adequate capital fund as a buffer against the vicissitudes of life and to enable access to the occasional luxury, such as a holiday.
The observation of Kirby P in Golosky v Golosky (unreported New South Wales Court of Appeal 5 October 1993) at 10 and 11 is pertinent, namely:
"It has been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies.
…
A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence the spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator who is both wise and just."
The estate was large enough to accommodate the needs of the applicant.
Mr Williams' daughter and son have claims competing with the claim of the applicant. The evidence is that, although at the date of Mr Williams' death both the son and daughter owned their own homes, the daughter's home was subject to a mortgage. The daughter had a history of ill health. She had three children and, aside from her home, had no assets of significance.
There is evidence from Mr Williams' son that he had a back complaint which occasionally affected his ability to work and which may require surgery in the future. His evidence is that he contributed to the improvement of the major estate asset, being the six residential units at Circassian Street, by helping his father with the building work.
Counsel for the respondents submitted that the evidence shows that the applicant out of her own assets, the bequest of a one-third interest in the investment property at Goodwin Street, the right to continue to occupy the home and the receipt of the war widow's pension was provided with enough for a comfortable retirement and, accordingly, having regard to the competing claims of Mr Williams' daughter and son, the applicant has failed to demonstrate that she has an arguable case.
I do not accept the submission. If the applicant wishes to, or needs to, move out of the family home she may be left without sufficient funds to purchase suitable alternative accommodation with an excess sufficient to provide a financial buffer against life's contingencies. The estate was large enough for the applicant to receive further provision. The competing claims of the daughter and son are not plainly so strong as to make it clear that the applicant cannot succeed.
I am satisfied that the applicant has an arguable case for further provision.
The length of the delay and the explanation for it
Probate issued on 2 May 2016. The time for bringing an application for provision expired on 2 August 2016. The application was filed on 8 December 2016.
There is no dispute that the parties, through their solicitors, were in negotiations from early May 2016. There were offers and counter offers.
The applicant's former solicitor gave evidence that he was sure that he would have told the applicant, prior to time expiring, that she had three months in which to bring a claim. However, he could not recall what he had told the applicant and his evidence was that when time expired on 2 August 2016 he was under the misapprehension that the last day for filing a claim was 25 August 2016. The applicant's evidence, which was not disputed, was that she did not become aware that time had expired until 19 August 2016 when her former solicitor sent her an email attaching a letter to him from the respondents' solicitors dated 17 August 2016 saying that time had expired on 2 August. In the email attaching the letter, the applicant's former solicitor said that the applicant would "need to take the emotion and personalities involved out of [her] considerations". He said that it seemed to him that "The court could reasonably accept the terms of the original will" and that he thought that her "husband thought that he was adequately providing for [her]".
The applicant responded in an email which she sent on 21 August saying that she rejected the most recent offer put on behalf of the respondents and she said that she knew that Mr Williams' daughter and son "want to buy me out cheaply".
The applicant's former solicitor responded by saying that bringing an application would be "very expensive".
The applicant took advice from a friend of her late husband and as a result instructed her former solicitor that she would not be pursuing a claim. On 26 August 2016 the applicant's former solicitor notified the respondents' solicitors that no claim would be made.
Shortly after instructing her former solicitor that a claim would not be pursued, the applicant spoke with her accountant who offered the opinion that the applicant should engage new solicitors. New solicitors were instructed on 23 September. On 12 October the applicant's new solicitors wrote to the respondents' solicitors expressing the opinion that the applicant would be successful in a claim for further provision and advising that "Senior Counsel's" advice was being sought.
On 11 November the applicant's new solicitors wrote to the respondents' solicitors saying that advice had been obtained from senior counsel and that as a result the applicant had issued instructions to them to take out an application for provision and an application for an extension of time.
The originating application was filed on 8 December and a notice of appearance was filed on 14 December 2016.
The applicant's affidavit in support of her application for an extension of time and in support of her application for provision generally was filed on 14 March 2017. On 9 June affidavits in response from Mr Williams' daughter and son were filed. There followed a mediation session on 5 July. On 6 July the applicant filed an affidavit responding to the affidavits from Mr Williams' daughter and son. On 19 August an order was made that the extension of time application be heard and determined first. The applicant filed a further affidavit on 27 November and on 7 December an order was made that the application for time be set down for hearing. The hearing date allocated was 18 April 2018 and the hearing proceeded on that day.
Counsel for the respondents submitted that the delay had not been fully explained and in particular referred to the time between the filing of the originating application in December 2016 and the hearing of the time application on 18 April 2018.
Based upon my experience, I am of the opinion that the gaps between the various steps taken by the applicant to progress her originating application since the time of filing were not so large as to be unusual and calling for any particular explanation or justification.
The delay in filing the application from the time of the grant of probate was about seven months. Initially the delay was due to the parties engaging in negotiations and the applicant's former solicitor having a misapprehension as to when time would expire. The applicant's decision in August 2016 to instruct her former solicitor not to pursue a claim was understandable in the context that she had by then been told that time had expired. Her solicitor had no real confidence in a claim being successful and had told the applicant that the bringing of an application would be very expensive. The applicant reactivated the potential claim promptly after her accountant had suggested that she engage new solicitors. As I said earlier, the delay thereafter, in my experience, was not outside the ordinary run of litigation.
The delay has been satisfactorily explained.
The prejudice to the beneficiaries arising from the delay
If the application for provision had been made within time I would expect that it would have been heard and determined by now. Beneficiaries have an interest in estates being administered promptly and keeping them out of the benefit of the provisions made for them for a substantial period of time will almost always cause some inconvenience or even prejudice to them.
Here the applicant remains in occupation of the home and so it cannot be sold with the proceeds being paid to Mr Williams' daughter and son until the applicant ceases to occupy it as her principal residence. Accordingly, the beneficiaries have not been disadvantaged by delay in respect of the sale of the couple's home.
Mr Williams' son has already obtained title to the six residential units at Circassian Street. Under the terms of the will the taking of title was conditional upon him paying to his sister the sum of $130,000 and paying to the benefit of his sister's three children the sums of $40,000 each, which sums may be used prior to the children attaining the age of 21 years for their education, advancement, support and care. These sums have been paid so that the family of Mr Williams' daughter already has the benefit of the receipt of $250,000 under the will.
The only delay in distribution referred to by counsel for the respondents is the distribution of the net proceeds of the sale of the investment property at 9 Goodwin Street. The property was sold prior to the filing of the applicant's application and produced net proceeds of about $180,000. Under the terms of the will each of the applicant, the son and the daughter are to receive one-third, namely a sum of about $60,000 each.
No doubt, an early distribution would have benefited the son and the daughter, but there is no evidence of either of them having an immediate or urgent need for the money.
Having regard to the distributions already made and the fact that the children of Mr Williams' daughter already have had their benefits paid in full, I do not regard the delay in any further distributions, which may occur as a result of time being extended, as being likely to result in any significant prejudice to the son and daughter.
Is it unconscionable for the applicant to seek to pursue a claim which she had previously advised would not be pursued?
The applicant's decision not to pursue a claim was only made after a time limit had expired without fault on her part and on the basis that her former solicitor appeared to have little confidence in a claim being successful and had advised that litigation would be very expensive. The evidence of the applicant's former solicitor was that prior to receiving instructions not to pursue the claim he had not furnished the applicant with researched or detailed advice either in writing or orally.
The applicant's change of mind was due to her new solicitors causing the merits of her potential claim to be assessed by senior counsel and was in accordance with the advice which she received.
There was no unconscionable conduct by the applicant.
Conclusion and orders
I am satisfied that the applicant has a viable claim. Her delay has not been inordinate and has been satisfactorily explained. Any prejudice to the other beneficiaries by reason of delay has been substantially mitigated by the distributions already made. There has been no unconscionable conduct on the part of the applicant. A refusal to extend time by leaving the applicant only with a potential claim against her former solicitor for professional negligence would result in prejudice to the applicant. The possibility of such a claim, in the ordinary course, is not to be given much weight as it would not afford perfect redress. See, for example, Collingwood v Bishop Davies Court [1999] TASSC 94 at [14]. In these circumstances, I am persuaded that the justice of the case rests with time being extended.
These are the orders:
1The time for the taking out of the application seeking further provision under the Testators Family Maintenance Act 1912 is extended to the date of the filing of the originating application, namely 8 December 2016.
2The parties have 14 days in which to apply for an order dealing with the costs of the application for the extension of time and if no application is accordingly made, the costs of the extension of time application are to be reserved to the hearing and determination of the application for provision.
3There is a certificate for the attendance of counsel at the hearing on 18 April 2018.
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