| 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 |
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| 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) |
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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.
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| 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…
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- AGLC
- Winter-Cooke v Winter-Cooke [2022] VSCA 264
- Case
- [2022] VSCA 264
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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