Legal Research
Cases
Winter-Cooke v Winter-Cooke

Winter-Cooke v Winter-Cooke

Case [2022] VSCA 264 30 November 2022

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0009

ROBERT EDMUND WINTER-COOKE	Applicant
v
SAMUEL MARCUS WINTER-COOKE (AS EXECUTOR AND TRUSTEE OF THE ESTATE OF MARCIA WILSHIRE WINTER-COOKE, DECEASED, AND AS EXECUTOR AND TRUSTEE OF THE ESTATE OF SAMUEL ROBERT WINTER-COOKE, DECEASED) & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

---

JUDGES:	KYROU, MACAULAY JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2022
DATE OF JUDGMENT:	30 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 264
JUDGMENT APPEALED FROM:	[2021] VSC 806 (McMillan J)

---

ADMINISTRATION AND PROBATE – Family provision – Application for extension of time – Lengthy delay – Whether claim for further provision arguable – Whether satisfactory explanation for delay – Whether other beneficiaries would be prejudiced if extension of time granted – Whether judge erred in refusing extension of time – Leave to appeal refused.

Administration and Probate Act 1958, ss 91, 99.

---

Counsel
Applicant:		Mr MC McKenzie
Respondents:		Mr RC Wells
Solicitors
Applicant:	PVP Legal
Respondents:	Kathy Wilson Legal

TABLE OF CONTENTS

Introduction and summary

Non contentious facts

Background to the Winter-Cooke family and its financial arrangements

Deceased’s will dated 26 April 2007 and assets of his estate

Deeds of agreement dated 28 September 2009

Communications relating to Marcia’s 10,000 shares

Other events after execution of the deeds and before commencement of the proceeding

Applicant’s evidence at trial

Respondent’s evidence at trial

Principles regarding extension of time to make a pt IV claim

Judge’s reasons

Judge’s reasons concerning whether the applicant had an arguable case

Judge’s reasons concerning prejudice to other beneficiaries

Judge’s reasons concerning the applicant’s delay in commencing a pt IV proceeding

Judge’s overall conclusion

Grounds of appeal

Grounds 14 and 15: Applicant’s reasons for delay

Parties’ submissions on grounds 14 and 15

Decision on grounds 14 and 15

Remaining grounds

Conclusion

SCHEDULE OF PARTIES

KYROU JA
MACAULAY JA
J FORREST AJA:

Introduction and summary

Samuel Robert Winter-Cooke (‘deceased’) died on 7 January 2008 leaving a will dated 26 April 2007. He was survived by his wife, Catharine, and his four children: Samuel Marcus Winter-Cooke (‘Marcus’), Phillipa Risbey, Robert Winter-Cooke (‘applicant’) and Arbella Winter-Cooke. Probate of the deceased’s will was granted to Marcus, Catharine and Phillipa as executors and trustees of the deceased’s estate (‘executors’) on 8 April 2009. Accordingly, the final date of the six month period for the making of a claim for family provision under pt IV of the Administration and Probate Act 1958 (‘Act’) was 8 October 2009.[1]
[1]See [85] below.
The members of the Winter-Cooke family have been part of a farming enterprise (‘Murndal partnership’) over many years. At the core of the enterprise is a 6,000 acre grazing property known as ‘Murndal’ near Hamilton. Winter Cooke (Murndal) Pty Ltd (‘company’) is the registered proprietor of Murndal. At the time of the deceased’s death, the Murndal partnership comprised the company, the deceased, Catharine, Marcus, and Marcus’s wife, Julia. The deceased’s mother, Marcia Wilshire Winter-Cooke, was a member of the Murndal…

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 Winter-Cooke v Winter-Cooke

Details

AGLC: Winter-Cooke v Winter-Cooke [2022] VSCA 264
Case: [2022] VSCA 264
Decision Date: 30 November 2022

CaseChat Overview and Summary

The case of Winter-Cooke v Winter-Cooke involved a dispute under the Administration and Probate Act 1958, specifically concerning family provision applications. The applicant sought an extension of time to file a claim for further provision from the estate of the deceased. The matter was heard in the Supreme Court of Victoria. The deceased had passed away some years prior, and the estate was in the process of being administered. The applicant, who was a family member of the deceased, sought to challenge the adequacy of the provisions made under the will, arguing that further provision was necessary.

The central legal issues before the court were whether the applicant's claim for further provision was arguable on the merits, whether there was a satisfactory explanation for the delay in bringing the claim, and whether other beneficiaries would be prejudiced if the extension of time was granted. The applicant argued that the delay was due to the complexity of the estate and misunderstandings regarding the application process. The respondent contended that the delay was inordinate and that granting an extension would prejudice the other beneficiaries who had already settled their interests.

The court considered the relevant statutory provisions under the Administration and Probate Act 1958, including sections 91 and 99, which deal with family provision applications and the discretion of the court to extend time limits. The court found that while the applicant's claim for further provision was potentially arguable, the delay in filing the application was significant and not adequately explained. The court was also concerned that other beneficiaries, who had already settled their interests in the estate, would be prejudiced if the extension was granted. Consequently, the court refused the application for an extension of time. The applicant subsequently sought leave to appeal, which was also refused by the court.

The final orders of the court were that the application for an extension of time to file a claim for further provision from the estate be dismissed, and that the applicant's application for leave to appeal be refused. The court emphasised the importance of timely application for family provision claims and the need for a satisfactory explanation for any delay in bringing such claims.

Orders