MATTER : Inheritance (Family and Dependants Provision) Act 1972 (WA)

The Estate of GEORGE EDWIN BOCK late of 26 Whitley Crescent, Karrinyup in the State of Western Australia, Retired Company Secretary (Dec)

ADRIAN JOHN EDWIN BOCK as Executor of the Will and Estate of GEORGE EDWIN BOCK (Dec)

Inheritance (Family & Dependants Provision) Act 1972 (WA) - Application for extension of time to bring proceedings - Turns on own facts

Inheritance (Family and Dependants Provision) Act 1972 (WA) s7(2)(b)

Anderson v Teboneras [1990] VicRp 47; [1990] VR 527

Beattie v Beattie [2005] WASC 85

Clayton v Aust (1993) 9 WAR 364

Hawkins v Prestage (1989) 1 WAR 37

Hughes v National Trustees, Executors & Agency Co of Australasia Limited [1979] HCA 2; (1979) 143 CLR 134

Mansfield v Mansfield [2003] WASC 214

McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566

Vigolo v Bostin [2005] HCA 11

Grigoriou v George Nitsos [1999] WASCA 42

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

King v White [1992] VR 417

Young v Kestel [2003] WASCA 190

1 MASTER SANDERSON: This is the plaintiffs' application for an extension of time to commence proceedings under the Inheritance (Family and Dependants Provision) Act 1972 (WA) ("the Act"). The application is brought under s 7(2)(b) of the Act which is in the following terms:

"(2) No application under subsection (1) shall be heard by the Court unless -

(a) ...

(b) the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time."

2 The principles applicable in an application for extension of time are not be in dispute between the parties. They have been discussed in a number of cases including Clayton v Aust (1993) 9 WAR 364, Mansfield v Mansfield [2003] WASC 214 and Beattie v Beattie [2005] WASC 85. I need not restate all the principles set out in these reasons. On behalf of the defendant, it was conceded that the plaintiffs fell within the guidelines such as to justify a grant of leave in all save one respect. It was submitted that the plaintiffs did not have an arguable case. It was on that basis alone that the defendants said this application ought be dismissed.

3 The facts of the case can be briefly stated. The plaintiffs are the two adults sons of George Edwin Bock ("the deceased"). The deceased died on 9 May 2004 and probate of the will was granted to the first defendant on 18 August 2004. The deceased's estate was substantial, containing assets to the value of more than two million dollars.

4 By his Will, the deceased left certain specific legacies to named beneficiaries and his house and contents and money standing in various bank accounts - an amount totalling over one million dollars - to the second defendant. The other asset of the estate was shares in a business known as Hawthorn Press Pty Ltd. These shares had a value of $1,100,000 (according to the statement of assets and liabilities filed with the Court). Pursuant to the will, 25 per cent of the Hawthorn Press shares went to each of the plaintiffs and the remaining 50 per cent went to the second defendants. It is these Hawthorn Press shares which have led to the dispute between the plaintiffs and the second defendant.

5 Each of the plaintiffs has sworn an affidavit in these proceedings and each of the affidavits was sworn on 1 March 2005. They are essentially in similar terms. The facts situation which emerges can be summarised as follows: The deceased commenced the business of Hawthorn Press in March of 1954. The first-named plaintiff joined the business in November of that year. The second-named plaintiff joined in February 1972. Both the plaintiffs were involved in the day-to-day running of the business and it would seem that they were responsible for the business prospering. Both say that the business has, in recent years, "achieved excellent profits". It seems that the deceased was not involved in the business in recent years and that the success and profitability of the business was down to the efforts of the plaintiffs. Nonetheless, the deceased received "excellent remuneration" from the business and it would appear that the assets that he had as at the date of his death were largely as a result of what he had been paid by the business.

6 Both plaintiffs say that they worked in and ran the business on the clear understanding that at the date of the death of the deceased the shares in Hawthorn Press would past to them. The first-named plaintiff puts the position this way (19.7 of his affidavit):

"I have been running the business for the last 30 years. I continued to run the business on the clear understanding that I would receive from my father on his death the life governing shares in relation to the business, that I would manage the business and that on the death of the last of my mother and father to die their shareholding in the company, HAWTHORN PRESS PTY LTD would be divided equally between my brother, ADRIAN and myself".

7 Each of the plaintiffs is soundly placed financially. Each has net assets of more than $3 million dollars. Clearly, neither of the plaintiffs has a call on the estate to secure their position in life. It is to be remembered that even if the will of the deceased is left undisturbed, each of the plaintiffs will receive 25 per cent of the deceased's shareholding in Hawthorn Press. Based upon the present valuation of the company, that means they will receive shares to the value of more than $250,000 each. But they will not own the entire company between them. That it would seem is the source of their complaint.

8 It was the second defendant's position that this was a clear case where the plaintiffs could not succeed in any claim under the Act. It was submitted that the plaintiffs were adult children who had made their way in life and did not need any further provision from the deceased's estate. It was said that it could not possibly be argued that the will of the deceased failed to make adequate provision for the proper maintenance support, education or advancement in life of the plaintiffs.

9 On behalf of the plaintiffs, it was submitted that the will of the deceased did not make adequate provision for the proper maintenance of the plaintiffs. It was said that in circumstances where the deceased had promised that his shares in Hawthorn Press would pass equally to the plaintiffs on his death, the plaintiffs had a "moral claim" which they should be free to put before the Court. In support of this proposition, counsel for the plaintiffs relied upon what was said by Justices Hayne and Haydon in Vigolo v Bostin [2005] HCA 11. In particular, counsel relied upon the following (pars 113 and 114):

"113 We would not be reluctant, at least in some cases, to use the expressions 'moral duty' and 'moral obligation', and to apply the concepts underlying them, which include the idea of 'moral claims'. It seems to us that there are several material indications in the Act that moral considerations maybe relevant. But before we refer to those indications, we should make it clear that a moral claim cannot be a claim founded upon considerations not contemplated by the Act. Nor can it be a claim based simply upon the fact of a preference shown by a testator in his will for another or others, although there may be cases in which disparities in dispositions may be relevant.

114 The first of the indications is the use of the word 'proper'. It implies something beyond mere dollars and cents. Its use, it seems to us, invites consideration of all the relevant surrounding circumstances ..... The use of the word 'proper' means that attention may be given, in deciding whether adequate has been made, to such matters as what used to be called the 'station in life' of the parties and the expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future."

10 Both counsel gave careful consideration to these and other passages in Vigolo and also dealt with numerous other cases including McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566, Hughes v National Trustees, Executors & Agency Co of Australasia Limited [1979] HCA 2; (1979) 143 CLR 134, Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 and Hawkins v Prestage (1989) 1 WAR 37.

11 The guidelines applicable to an application such as this to which I have referred above, make it plain that no detailed consideration should be given to the merits of the application on an application for leave to commence proceedings. There is probably no useful point to be served in attempting to lay down a standard which must be reached by an applicant as to the merits of the application. It is clear that the plaintiffs' claim must be something more than hopeless. Perhaps the best standard to adopt is that which applies on a summary judgment application. A plaintiff must show that there are matters which require a full examination of the facts and circumstances.

12 On that basis, I am satisfied that leave in this ought be given. Having reached that conclusion, it is inappropriate if I make any detailed comments about the plaintiffs' claim. It will suffice if I say that in my view the position is arguable. The plaintiffs should be able to put their case before the Court. I am satisfied the other guidelines for the grant of leave have been satisfied and I will grant leave accordingly.

13 I will hear the parties as to the precise form of orders and as to costs.