Withers v Van Unen
[1998] VSC 151
•24 November 1998
SUPREME COURT OF VICTORIA
PRACTICE COURT
Not Restricted
No. 7257 of 1998
ALEXANDRA VICTORIA WITHERS Plaintiff v. MALCOLM IAN VAN UNEN AND CHRISTINE ANN GLADDIO Defendants (IN THEIR CAPACITY AS EXECUTORS OF THE WILL OF VICTOR
JOHANNES VAN UNEN DECEASED)
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JUDGE: BEACH, J. WHERE HELD: MELBOURNE DATE OF HEARING: 30 OCTOBER 1998 DATE OF JUDGMENT: 24 NOVEMBER 1998 CASE MAY BE CITED AS: WITHERS v. VAN UNEN MEDIA NEUTRAL CITATION: [1998] VSC 151
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CATCHWORDS:
TESTATOR'S FAMILY MAINTENANCE - Application for extension of time to make claim - Reasons for delay - Arguable case - Administration and Probate Act 1958, s.99.
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr. G. Hardy Findlay Arthur Phillips For the Defendants Ms. C. Sparke Adams Maguire Sier
HIS HONOUR:
This is an application brought by the plaintiff against the executors of the estate of her late father pursuant to the provisions of s.99 of the Administration and Probate Act 1958 seeking an extension of time within which to make an application to the Court that adequate provision be made for her proper maintenance and support out of the estate of the deceased.
The background to the application may be summarised as follows.
The deceased Victor Johannes Van Unen had three children by his first marriage to Lynne Monari, the two defendants Malcolm Ian Van Unen and Christine Ann Gladdio, and Andrea Lynne Van Unen. His son Malcolm is now aged 32 and his daughters are aged 34 and 30 respectively.
Following the deceased's divorce from his first wife, the deceased formed a relationship with Faye Frances Withers. The evidence before me is that the relationship commenced in June 1973 and ended in December 1976.
On 1 May 1976 Faye Withers gave birth to the plaintiff Alexandra Victoria Withers. The plaintiff is now aged 22. In May 1976 Fay Withers took proceedings against the deceased in the Magistrates' Court at Melbourne seeking maintenance from the deceased in respect of her daughter.
On 20 May 1976 the Magistrates' Court made a finding that the deceased was the father of the plaintiff and an order that the deceased pay to Fay Withers the sum of $20 per week in respect of the maintenance of the plaintiff.
At some later time the deceased married June Van Unen.
The deceased died on 26 August 1996. On 31 December 1996 probate of his will and estate was granted to the defendants. The deceased's estate consisted of his principal residence at 16 Cassells Road, Research, a unit in Main Road, Research, a unit in Ingrams Road, Research, a half interest in a property at Ballina in New South Wales and approximately $2,225 in two bank accounts.
By his will dated 15 December 1993 the deceased left to his wife June Van Unen a legacy of $5,000 and life interests in his principal residence at Research and the unit in Main Road, Research. The deceased left the residue of his estate to be divided equally between the three children of his first marriage, that is the defendants and Andrea Lynne Van Unen. His will made no provision for the plaintiff.
The evidence before me would suggest that the value of the estate of the deceased which is yet to be distributed is approximately $270,000.
For the plaintiff to succeed with her application she must satisfy me that she has an arguable case and a good reason for her failure to make the application within the period of six months following the grant of probate as required by s.99 of the Act.
The plaintiff has sworn that she did not believe that she had any right to claim against the estate of the deceased until she attended a conference with a barrister who is an acquaintance of her mother, on 17 March 1998. The plaintiff has sworn in her affidavit of 1 May 1998 that prior to that date she did not know that she had any rights as a child of the deceased born outside marriage.
It is relevant to note in this respect that on 31 December 1995 the plaintiff was involved in a serious motor car accident in which she suffered severe head injuries. She was hospitalised for some months after the accident and was then in traction at home for over three months. Her current situation is that she has a plate and six pins in her collar bone, facial scarring which will require plastic surgery and other accident and surgical lacerations which will require further plastic modification. The effect of those disabilities upon the plaintiff is set out in her affidavit of 25 May 1998, paragraph 25 of which reads:
"I have no familiarity with or knowledge of legal matters. Until March 1998 I had not previously consulted a solicitor or received legal advice. Due to my accident, ongoing treatment and my emotional condition arising from my accident and the subsequent hospitalisation and surgery, I did not reflect upon my position as a child of the deceased and did not realise until March 1998 that I might have rights against the estate of the deceased."
The defendants did not give notice requiring the plaintiff to attend for cross- examination. In that situation I have no reason not to accept the plaintiff's testimony in relation to such matters.
What the defendants contend, however, is that as the plaintiff's mother consulted solicitors before the time limit expired with a view to recovering from the deceased's estate the arrears of maintenance owed by the deceased prior to his death, that fact should disentitle the plaintiff to the relief she now seeks. I reject that contention. It is not what may or may not have been known to the plaintiff's mother in this case - and there is no evidence to demonstrate that the plaintiff's mother appreciated that the plaintiff may have a claim against the estate of her father prior to 17 March 1998 - it is what was known to the plaintiff.
In my opinion the plaintiff's explanation for her delay is reasonable. I turn therefore to consider whether it can be said that she has an arguable case.
The principles in relation to this aspect of the application were enunciated by Malcolm, C.J. in Clayton v. Aust (1993) 9 W.A.R. 364. At p.369 he said:
"It is apparent that, in determining whether the appellant had an arguable case, the learned Master took into account the case which would be made against him and appears to have concluded that the conflict of evidence on the affidavits was likely to be resolved against the appellant. In my opinion, with respect, the learned Master was not entitled to adopt this approach in a situation where the evidence of the respective deponents had not been tested by cross-examination. In determining the question in this way and in approaching the matter on the basis that the appellant's case was weak or barely arguable, I am of the opinion that the learned Master erred in the exercise of his discretion.
In my opinion, the question whether the appellant has an arguable case on the merits must be answered against the background of the test formulated by Salmond, J. in Re Allen (deceased) [1922] NZLR 218 at 220-221, who said:
'The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and desserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the court may properly make in default of testamentary provision is that which a just and wise father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of the relevant circumstances'."
At p.370 he continued:
"In my opinion, the learned Master should have held that the appellant had made out an arguable case. That is not to say that it was a case which had to be categorised as strong or weak. It was enough that it was arguable."
I respectfully agree with his Honour's observations.
On the face of it, one would say that a 22 year old daughter in the situation the plaintiff was at the time of her father's death had an arguable case that some provision should have been made for her maintenance and support out of her father's estate. However, counsel for the defendants made the following points in respect of the matter:
(1) The plaintiff had little contact with the deceased during his lifetime whereas the other three children of the deceased maintained "a loving and close relationship". (2) That following the death of the deceased the claim made by the plaintiff's mother in respect of the arrears of maintenance owed by the deceased was settled in about August 1997 on the terms that the estate pay to the mother the sum of $21,800; that the deceased's three children were entitled to assume therefore that in that situation no further claim would be made on the estate of the deceased and that they would each receive their inheritance. (3) That being of the belief that they would receive their inheritance the three beneficiaries have altered their positions and would now be prejudiced if their shares of the residual estate were reduced.
In my opinion such matters may well go to the strength or weakness of the plaintiff's case but in my opinion they do not demonstrate that the plaintiff's case is unarguable.
In the circumstances I propose to grant the plaintiff's application.
I extend the time within which the plaintiff may make an application for relief under Part IV of the Administration and Probate Act 1958 to 4 May 1998.
I reserve the costs of the application.
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