Ansett v Moss & Ors [2007] VSCA 161

2 The appellant is the second son of the deceased. On 18 January 2006, 24 years after the deceased's death, the appellant and his older brother applied to the Supreme Court for an order extending the time within which they could commence an application pursuant to the provisions of Part IV of the Administration and Probate Act 1958 for further provision for their maintenance and support to be made from the estate. The applications were refused by a judge in the trial division. The appellant has been granted leave to appeal from that decision.

3 The appellant is now 71 years old. On leaving school he enrolled at the University of Melbourne and graduated as bachelor of laws in 1957. He completed articles, worked as a solicitor, and in 1961 became a partner in the firm Maurice Cohen & Co. He left the firm in 1969. In 1972 the appellant was employed as an investigating officer by the Law Institute of Victoria, and in 1973 he joined the Gas and Fuel Corporation as a corporate lawyer, where he was employed for several years. Between 1975 and 1977 the appellant had various labouring jobs in Queensland and Victoria. In 1977 the appellant became a partner in the firm Lloyd P. Goode & Co, where he remained until 1979, when he became a sole practitioner. That practice did not last long. From 1980 until 1983 the appellant was, according to an affidavit filed in support of his application, 'mainly unemployed'. In 1983 he became a corporate lawyer for the car hire business operated by his older brother, where he remained for the next seven years. His last significant employment was a six-month contract with the Department of Social Security as a lawyer. The trial judge found that, when his application was heard, the appellant had no assets and no income other than the aged pension.

4 Section 99 of the Act provides that no application for relief under the Act shall be heard unless the application is commenced within six months after the date of the grant of probate of the will. The section also provides that the time for making an application may be extended for a further period by the court, but no application for extension of time is to be made after the final distribution of the estate. No distribution made prior to the application is to be disturbed.

5 The trial judge accepted the findings as to the assets that remained undistributed made by another trial judge, who heard an application for extension of time under s 99 which was brought by one of the deceased's daughters. That judge found that the assets were funds of $750,000 and certain land. It appears from the transcript of the hearing before the trial judge, however, that the parties in this case accepted that the estate remaining undistributed may have had a significantly greater value than that ascribed to it by the first judge. The issue was left to be debated on another occasion. The bulk of the undistributed estate is held on trust for charity.

6 The trial judge accepted that, if the appellant satisfied him that he failed to apply for relief under Part IV of the Act in time because he was ignorant of his right to claim relief, it would be unjust to penalise him for delay in instituting proceedings. The trial judge held that the appellant had not discharged this burden.[1] In my view, the discretion conferred by s 99 should not be confined by any rigid rules and accordingly, there is no requirement, in every case, that delay be

satisfactorily explained.[2] His Honour said that, although in his practice as a solicitor the appellant had little to do with wills or probate law, if he was ignorant of the provisions of Part IV of the Act he was negligent, for those provisions were everyday, run-of-the-mill law which should be known by a practitioner in a firm such as Maurice Cohen & Co. The trial judge continued:**

I cannot in these circumstances accept that Mr Ansett has discharged the burden to prove on the balance of probability that he is ignorant of the rights which are to be found in Part IV of the Administration and Probate Act. My conclusion is strengthened by the circumstance that Mr Ansett never, in any of the affidavits sworn by him in this proceeding, directly states that he did not know about Part IV. The nearest he comes to making such a statement is in paragraph 8 of his affidavit of 13 February 2006. He there deposes merely that he "did not give consideration to my father's will or to any further entitlement I might have had to his estate until 5 May 2005". Given that he bears the onus of the burden of proof, the affidavit has a significance that is not removed by evidence given in cross-examination, when Mr Ansett denied that he "as a competent legal practitioner would have known well before 1989 that he had rights to pursue".

In fact, in the affidavit referred to by the trial judge, the appellant deposed, in another paragraph, as follows:

I received a $50,000 legacy from my father's estate and I accepted the money, unaware of both the contents of the will or any avenue open to me to challenge the contents of the will.

The appellant's denial in cross-examination of knowledge of an ability to claim further provision from the estate referred to by the trial judge was repeated and unshaken. The trial judge expressed no concluded view as to the appellant's credibility as a witness.

**7 In my opinion, the trial judge's mistaken reliance upon an absence of a claim to ignorance in the appellant's affidavit was a material error which vitiated the exercise of his Honour's discretion, for it appears to have been an integral part of the reasoning leading to that decision.

8 Counsel for the respondents submitted that the trial judge's statement that the appellant did not depose in any affidavit that 'he did not know about Part IV' was correct, for the appellant did not refer to Part IV, but rather to his ability to challenge the contents of the will. I do not accept that his Honour had in mind such a distinction. The absence of the word and the figure 'Part IV' is of no moment when the appellant employed other words to the same effect.

9 Although his Honour considered that the appellant's failure to satisfy the trial judge that he was ignorant of his ability to claim further provision from the estate of the deceased was sufficient to dispose of the application, his Honour went on to hold that the appellant had no arguable case for relief under the Act. His Honour said that, when the deceased died, the appellant was a 45-year-old lawyer with 20 years' practice, principally as a partner in a respectable firm. He continued:**

He was unemployed in December 1981 and had been so for several years. Whether his father knew this is uncertain. There had been no contact between father and son since some time before John's second marriage, which I take it occurred in about 1979. Even if the father had known of his son's unemployment, he may not have known the reason for it. It is therefore not open to conclude that this was a circumstance that should have brought into play any testamentary duty owed to John by his father.

10 The trial judge referred to evidence by the appellant. He was out of work due to heavy drinking and a depressed state, so he deposed, but said that it was not apparent that drinking or depression amounted to either a medical condition or a mental illness. His Honour referred to the unexplained gap in the appellant's employment history between 1969 and 1972, and said that it was possible that the deceased regarded his son's unemployment as a deliberate lifestyle choice, or that, for some other unidentified reason, the deceased saw a legacy of $50,000 as sufficient. His Honour concluded:

There is no evidence showing the extent, if any, by which John Ansett's proper maintenance and support required more than $50,000 given to him. Moreover, there is in December 1981 a history of many years' employment as a partner in private legal practice, with prospects of further such employment in the future. In these circumstances, it cannot be said that Mr Ansett had in 1981 an arguable case for relief.

**11 The strength of an applicant's claim for relief is a relevant factor to be considered, together with other factors, in an application to extend the time for applying for further provision to be made from the estate of a deceased person. The trial judge in this case, however, used this factor to determine the application. That required a high threshold to be met, namely, that the appellant's case was hopeless.[3]

12 In my opinion, the appellant's prospects of success were far from negligible. At the date of the deceased's death, the appellant was in a somewhat parlous financial position. He was unemployed and had been unemployed for some time. He was qualified to work in the law and there was a prospect of gaining work in that field. Nevertheless, in my view, it was clearly arguable that a testator with a considerable estate, who had no competing claims upon his bounty which could serve to exclude the appellant, owed the appellant a moral duty to make provision for him in the event that a successful legal career did not materialise. His Honour had regard to the possibility that the deceased saw the appellant as having made a deliberate choice not to work and toyed with other possibilities, without identifying them, saying -**

or it may be that for some other reason Sir Reginald saw it, with justification according to his lights, as not warranting a greater disposition in John's favour than the $50,000 given to him by Sir Reginald in his will.

The trial judge also referred to lack of evidence of the extent to which the appellant needed more than $50,000 left to him in the will. That is the language of a decision disposing of an application under the Act. It does not warrant the conclusion that the appellant had no prospects of success in such an application. In my view, it is at least arguable that a wise and just testator, with very large means at his disposal, was under a duty to make better provision for the vicissitudes of life facing a son currently without significant financial means.

13 Counsel for the respondent relied upon the delay of seven months which ensued between the date upon which the appellant learned of his sister's proceeding, and thus became aware of his ability to make a claim upon the estate, and the date of this application. The trial judge said that it was significant that the appellant had not

satisfactorily explained the eight months' delay. In fact, the appellant did explain the delay. In an affidavit filed in the proceeding, the appellant deposed that his lawyers took time to ascertain whether the appellant had signed a release, and if so the terms of the release, take detailed instructions and draft and settle affidavits. A Christmas vacation also intervened. The explanation is not altogether satisfactory, but I do not consider that the delay necessarily doomed the application to failure, or, in combination with any other circumstances, led to such a result.

**14 In my view, the appropriate course for this Court to take is to remit the application to the Trial Division. The appellant's claim of ignorance of his rights is important, and that claim can only be determined by a tribunal before whom the appellant gives evidence.

15 For the foregoing reasons I would allow the appeal and remit the matter to be determined by a different judge of the Trial Division in accordance with law.

16 I would make the orders proposed for the reasons advanced by the learned presiding judge. There are two further observations I wish to make.

17 As Buchanan JA has said, the learned trial judge, in error, thought that the appellant had not deposed in his affidavit to the fact that he was unaware of the rights conferred by Part IV. His Honour considered the absence of such a claim in his affidavit to be significant. Though his Honour expressed his reasons as to the appellant's credibility in a sequential manner, it did not follow that his Honour had not considered all of the evidence before reaching his conclusion that the appellant had not established that he was ignorant as to Part IV.[4] It is not possible to exclude this error as contributing to his Honour's conclusion that he could not accept the appellant's explanation for the delay. A process of reasoning as to the**

credibility of a witness will rarely be linear.[5]

**18 The appellant's failure to establish that he was ignorant as to Part IV was referred to by the trial judge as a failure to discharge the burden which rested upon him. In substance the respondent submitted that this burden required proof that the delay was excusable, and that the appellant could not succeed unless he established that there was a satisfactory explanation for the delay. The consequence of failing to provide a satisfactory explanation should not be laid down in such absolute terms. The cases to which the respondent has referred[6] should not be viewed as authority for such a broad principle. The absence of a satisfactory explanation will in some circumstances be decisive but in others it will not.

19 I too would make the orders proposed by Buchanan JA, for the reasons expressed by him; and I agree also with the further comments of Redlich JA. The only additional comment I would make is that I would reject the alternative argument advanced today by Dr Hardingham in support of the proposition that the learned trial judge was not in error in finding that Mr Ansett had never in any of the affidavits sworn by him in the proceeding directly stated that he did not know about Part IV. Dr Hardingham submitted that his Honour was really saying that Mr Ansett's affidavits had included no claim of relevant ignorance except in relation to a brief period shortly after his father's death; and he further submitted that the affidavits should indeed be read in that way. I see no indication in his Honour's reasons that his Honour was making any such distinction. Nor do I see any basis for reading Mr Ansett's affidavits in the manner suggested. It seems to me that his**

Honour was simply in error in asserting that Mr Ansett had 'never' in any of the affidavits sworn by him in this proceeding directly stated that he did not know about Part IV.

2. The judgment and orders made below on 4 April 2007 are set aside.

3. The proceeding, including the question of the costs of the trial, is remitted to the Trial Division to be heard and determined by a judge other than the trial judge.**

[1] I doubt that there is an onus upon an applicant to prove ignorance of an ability to claim upon the estate of a deceased. Rather, ignorance is a relevant factor, the weight of which will vary according to all the circumstances.

[2] Compare Dix v Crimes Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297; Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441. See also Valbe v Irlicht [2001] VSC 53.

[3] See Re Walker [1967] VicRp 116; [1967] VR 890, Re Guskett [1947] VicLawRp 28; [1947] VLR 212, Re Barrot [1953] VicLawRp 45; [1953] VLR 308.

[4] Re MIMA; Ex parte S20-2002 [2003] HCA 30; (2003) 198 ALR 59, 63 [14] (Gleeson CJ); Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, [86].

[5] VAAD v Minister for Immigration & Multicultural & Indigenous affairs [2005] FCAFC 117, [79].

[6] Re Guskett, [1947] VicLawRp 28; [1947] VLR 212; Re Barrot [1953] VicLawRp 45; [1953] VLR 308; Re Lauer [1984] VicRp 14; [1984] VR 180; Re Will of Trescowthick [1999] VSC 409; Ashhurst v Moss & Ors [2006] VSC 287; (2006) 14 VR 291. Cf Dix & Anor v Crimes Compensation Tribunal [1993] VicRp 21; [1993] 1 VR 297; Valbe v Irlicht [2001] VSC 53; Groser v Equity Trustees Ltd [2007] VSC 27.