Younan v Younan - [2015] VSC 258

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S CI 2015 01637

IN THE MATTER OF Part IV of the Administration and Probate Act 1958

and

IN THE MATTER of the Estate of GEORGE SHABO YOUNAN, deceased

MONA YOUNAN	Plaintiff
v
JOSEPH GEORGE YOUNAN and AKRAM YOUNAN (who are sued as the executors of the estate of George Shabo Younan, deceased)	Defendants

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2015
DATE OF JUDGMENT:	3 June 2015
DATE OF WRITTEN REASONS:	4 June 2015
CASE MAY BE CITED AS:	Younan v Younan and anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 258

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FAMILY PROVISION – whether application for further provision brought within time – meaning of ‘within six months after the date of the grant of probate’ – De Angelis v De Angelis [2003] VSC 83 considered and distinguished – application held to be one day late and originating motion set aside - s 99 and s 101 Administration and Probate Act 1958 (Vic) – s 44 Interpretation of Legislation Act 1984 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Catlin	Marshalls + Dent
For the Defendants	Mr J O’Bryan	Holding Redlich

HER HONOUR:

By originating motion filed 14 April 2015 the plaintiff, who is the daughter of the deceased, sought provision or further provision[1] from his estate pursuant to Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’).
[1]It is not stated in the originating motion whether or not any provision is made in the will for the plaintiff. The Outline of Submissions on behalf of the Defendants states that the deceased left the whole of his estate to the defendants, his two sons.

By summons filed 24 April 2015, the defendants sought pursuant to r 8.09(a) of the Supreme Court (General Civil Procedure) Rules 2005 that the originating motion be set aside. The defendants assert that the originating motion was filed one day out of the time prescribed by s 99 of the Act. The defendants’ application was opposed.

I found for the defendants on the return date of their summons, 3 June 2015, and gave very brief reasons at that time. I indicated that I would give written reasons. These are those reasons.

There is no dispute that the deceased died on 15 August 2013 and that probate of his last will was granted to the defendants on 13 October 2014. Section 99 of the Act is found within Part IV of the Act. Both parties in their written material proceeded on the basis that s 99 as amended by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (‘2014 amendments’) applied. As noted at the hearing, I do not consider that correct. The 2014 amendments principally amended the substantive provisions relating to family provision. The amendment to s 99 were by way of reformulation, rather than substantive change. The 2014 amendments, including the reformulation of s 99, have…

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.

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Details

Case: [2015] VSC 258
Decision Date: 3 June 2015

CaseChat Overview and Summary

The case of Younan v Younan involved a dispute regarding a family provision claim under the Administration and Probate Act 1958 (Vic). The applicant, who was a daughter, sought further provision from the estate of her deceased father, the respondent. The primary contention was whether the application for further provision was brought within the statutory time limit. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were centred on the interpretation of the statutory time limit for bringing a family provision claim. Specifically, the court needed to determine the meaning of the phrase 'within six months after the date of the grant of probate' as stipulated in section 99 of the Administration and Probate Act 1958 (Vic). The applicant argued that the six-month period should be calculated inclusively, while the respondent contended that it should be calculated exclusively. The court also considered the case of De Angelis v De Angelis [2003] VSC 83, which had previously interpreted the same statutory language, but distinguished it on the facts.

The court found that the six-month period should be interpreted as exclusive, aligning with the respondent's argument. It held that the phrase meant the period ended on the day immediately preceding the sixth month from the date of the grant of probate. This interpretation was consistent with the ordinary meaning of the language used in section 44 of the Interpretation of Legislation Act 1984 (Vic). The court held that the application for further provision was one day late, and consequently set aside the originating motion. The applicant's claim was dismissed.

Orders