DE WINTER v JOHNSTONE

Court of Appeal (NSW)|1994-11-25|Before: Sheller JA

DE WINTER v JOHNSTONE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 25 November 1994, 23 August 1995

TESTATORS FAMILY MAINTENANCE - time for making application Extension of time - Whether sufficient cause shown for application not being made within prescribed period - Matters relevant to exercise of discretion to grant, or to refuse, extension of time

The appellant was one of four daughters of the deceased, who died, aged 85, on 5 September 1988 leaving a will dated 13 August 1988, probate of which was granted to the respondents, two of the appellant's sisters, Meriel Barbara Johnstone and Ailsa Barbara Halliday. Pursuant to s16(1) of the FPA the prescribed period within which an application for an order under the Act must be made, unless extended by the Court, is eighteen months after the death of the deceased person. The appellant's application was made over two years after the expiry of the prescribed period.

The appellant was born on 27 September 1950. In 1971 she married Alexander McCracken Danskine. In April 1991 they separated. At the date of the hearing before the Master she was living in rented accommodation caring for their two children, aged 13 and 10. The two children were being educated at private schools. Her property consisted of an old motor car and some furniture. Her weekly income was $780. Her weekly expenses were $957. Of this $720 was spent on or related to expenses to do with the two children. She had debts and financial commitments in some thousands of dollars. Until January 1992 the appellant's husband assumed sole responsibility for paying the school fees. In January 1992 a consent order was made in the Family Court whereby, it was said, the responsibility for the payment of the school fees for the two children passed from the appellant's husband to her.

The deceased's estate was valued at the date of his death at a net amount of $350,000 and at the date of the hearing of $420,000. By his will the deceased gave his former wife an annuity of $10,000. He left the balance of his estate to "be held UPON TRUST until such time as the youngest of my grandchildren living at the date of this my said will shall attain the age of twenty-five (25) years and I FURTHER DIRECT that on the attainment of such age of twenty-five years the capital as well as the income of my investments shall be divided equally

between such of my said grandchildren who shall then be living......". The deceased had eleven grandchildren whose ages at the date of the hearing ranged from 27 to 10 years. The appellant's two children were the youngest. The only competing claim on the bounty of the deceased seems to have been that of his former wife. There was no evidence that any of the grandchildren of the deceased was an eligible person within the meaning of s6(1) of the FPA.

The Master refused the application for an extension of time because he did not consider that the appellant had established that by the terms of his will the deceased had failed to fulfil the moral duty which he owed to the appellant as his daughter; see Permanent Trustee Co Ltd v Fraser (unreported) Court of Appeal, 24 February 1995. That being so he considered that there was no purpose in extending the time for the making of the application. The Master went on to say that, in the event that he be wrong in that conclusion, he did not consider there had been an adequate explanation by the appellant for not having instituted the proceedings within the prescribed period.

The Master referred to the appellant's income. He observed that this consisted of a gross income, averaging about $250 a week, from her part time business as a horticulturalist, maintenance for herself of $200 a week, pursuant to an order of the Family Court, for a limited period of two years from about February 1992 and $330 a week maintenance for her children. The Master referred to the appellant's list of her expenses and the extent to which those expenses related to the children. He made no express reference to the fact that the list of expenses included no amount on account of school fees and exceeded the appellant's gross income. In her affidavit of 24 March 1992 the appellant said that the weekly amount then available to her was insufficient to meet current living expenses for her and the children. As a consequence various of their living expenses had to be foregone or deferred. She said that the school fees in respect of the children had not been included in her estimate of current living expenses.

The Master did refer to the fact that the appellant and her husband had a strong commitment to educating their children in the private school system, an attitude of which the deceased was aware. He said there was one other factual matter which was relevant to consideration of the merits of the appellant's substantive claim. This concerned the estate of the mother of the appellant's mother, Mrs Canavan (the Kent estate). It appeared, so the Master said, that the interest of Mrs Canavan in her own mother's estate was accelerated and that a distribution was effected in that estate for some reason relating to British Death or Estate duties. The distribution was not to Mrs Canavan but to her four children. Those children set up a company, which was used as a vehicle to purchase a home unit and provide other benefits for Mrs Canavan. According to the Master when the appellant wished to marry she sought to withdraw from the arrangement. The withdrawal of her share had to be met by advances by two of her other sisters. On 2 April 1982 the deceased wrote to the first respondent saying of the appellant "she elected to take her share of the Kent estate and therefore left your mother and to a lesser extent, myself, as beneficiary without income which, particularly in your mother's case, would have helped in her cost of living."

"However, I would reiterate what I have already said, that I have not had all the details concerning that estate placed before me. Its relevance to the present proceedings is essentially that it is suggested that the deceased regarded the conduct of the plaintiff as somehow conduct which affected both her mother and,

to a lesser extent, himself detrimentally, and that that was either conduct disentitling, or conduct which reduced the moral claim which the plaintiff would otherwise have had upon the estate of her father."

The Master applied the principle of moral duty. Having said that the appellant's claim had been precipitated by detrimental alteration in her financial circumstances, consequent upon the arrangement made between her and her husband in January 1992, he continued:

"Every parent is entitled to choose whatever form of education they wish for their children. There can be no criticism of the plaintiff for desiring to have her children educated in the private school system.

It will be observed that the plaintiff was treated no differently by the deceased than were his three other children. her three sisters."

The Master said that he did not consider the appellant had established that the deceased by the terms of his will failed to fulfil the moral duty which he owed to the appellant as his daughter.

The Master's conclusion was that on the evidence before him he would have refused an order under the FPA. It may be that the timing of the application supports a conclusion that it was motivated by the withdrawal of the appellant's former husband's support in paying school fees. But on the evidence quite clearly the appellant had insufficient income to meet the weekly needs of herself and her two infant children. She had no assets of any consequence. The estate was worth $420,000. The only competing claim on the deceased's bounty was that of his former wife to an annuity of $10,000. For my part I can only conclude that the Master misunderstood the evidence. The moral duty said to be owed was not to ensure that the appellant's children were educated at private schools but to ensure that a daughter aged 42 living with two infant children in rented accommodation was not left unable to meet her current living expenses. Had the application been filed within time and come on for hearing before the Master at the same time and on the same evidence I am inclined to think that an order refusing relief would have been wrong. The matter to be determined, in considering whether leave should be given to file the application out of time, was whether the application was bound to fail. Quite obviously it was not. If as a matter of the proper exercise of discretion time should be extended, it will be a matter for the Court hearing the application on the evidence before it to determine whether an order should be made under the FPA and if so its terms.

The Master went on to say that he did not consider there had been an adequate explanation for the appellant's not having instituted the proceedings within the prescribed time. He accepted that the appellant believed the advice she received from a solicitor in late 1989 was that any change to the will would affect only the two-elevenths interest of her own children. He said:

"As I have already observed, the plaintiff received the advice. She chose not to do anything about it during the prescribed period. After the expiration of the prescribed period she - in circumstances which have not been to my view adequately explained - entered into an agreement with her husband, which had

the effect of considerably altering her financial situation to her detriment. The plaintiff then chose to institute the present proceedings.

Whilst there is no prejudice to the other beneficiaries on account of the delay, I consider that the conduct of the plaintiff in that regard is not such as would justify the Court in extending the prescribed period. So, even if I were to be of the view that the plaintiff were entitled to an order for provision under s7, I still would not be disposed to extend the prescribed period."

"The plaintiff's husband has been paying, and still continues to pay, maintenance for the two children. That maintenance is in a total amount of $330 a week. The plaintiff said that her husband has never shirked his responsibilities concerning payment of maintenance, and has never been in arrears in the payment of maintenance, and that until the end of January 1992, he had always paid punctually the school fees of the children.

However, the consent order which was made in the Family Court in January had the effect that after 31 January 1992, the responsibility for the payment of the school fees of the two children passed from the plaintiffs husband to the plaintiff. No adequate explanation was given as to why the plaintiff agreed to such an arrangement. The plaintiff said, in cross examination, that she did not know why she agreed that her husband's responsibility for the children's school fees would terminate on 31 January 1992. She also said, in her re-examination, that she formed the view that her husband could afford to continue paying for their children's education, but that certain additional documents, which had not been included in the pleadings and affidavits in the Family Court proceedings, had been produced to the plaintiff's legal advisers to show that her husband could not afford to pay those school fees. Those two answers, in re-examination, seemed to me to be somewhat inconsistent. Mr Raoul Wilson of Counsel, for the plaintiff, attempted to explain that apparent inconsistency, in that the view that her husband could afford to continue paying for the children's education was an historical view, which the plaintiff had held until she was confronted by this additional material (which had not been included in the documents filed in the Family Court).

For whatever reason, however, the plaintiff did agree that the responsibility for the payment of the school fees of the children should pass from her husband to herself at the end of January 1992. It is clear that it is that fact which motivated the plaintiff into giving further consideration to her rights to bring a claim against her father's estate. She said that it was in conversation with the Counsel who was appearing for her in the Family Court that she became aware for the first time that any claim which she might make against her father's estate would not be limited to that part of the estate which would otherwise, under the Will, pass to her own children. It will be appreciated that it was a matter of only two and a half months after the making of the order in the Family Court that the present proceedings were instituted by the filing of the summons.

I do not see anything unusual in the explanation given by the appellant as to why she made the arrangement she did with her husband. She had counsel acting for her. She was advised and no doubt persuaded that her husband was unable to continue to provide the school fees. Acting on this advice she agreed to the arrangement. If the unspoken suggestion is that she did so in order to make or bolster a claim under the FPA that seems to me unlikely. In any event there is not a shred of evidence to support such a suggestion beyond the fact that she did not make her application until after the arrangement was agreed. However the

evidence shows that whether she was responsible for the school fees or not she had insufficient income to meet her needs. The reason she gave for not applying earlier was that she thought any order she might obtain would affect only the interests of her own children. Believing that it is scarcely surprising that she made no application. She said that it was in the course of conversation with the counsel who was appearing for her in the Family Court that she became aware for the first time that any claim which she might make against the deceased's estate would not be limited to that part of the estate which would otherwise, under the will, pass to her own children. If this evidence is accepted her delay and change of heart is explained.

In his judgment the Master pointed out that it was only under cross examination that the appellant revealed that she had sought and obtained legal advice concerning her rights to make a claim against the estate in the latter part of 1989 from a solicitor, Mr Winston Readford. This advice was given by letter. The Master was unimpressed by the appellant's choice not to place before the Court a copy of the letter. The Master said he would be most surprised if the advice did not address itself to the question of the existence of a limitation period under the FPA. I agree. But this had nothing to do with the appellant's

explanation for not applying. She did not wish to affect her children's interests. Equally it is probable that the terms of the letter did not support the appellant's belief as the Master found it to be. Her explanation for the delay and late application involved no belief one way or the other about the limitation period.

In my opinion the Master's exercise of discretion proceeded upon a mistaken understanding of the facts or was so unreasonable, upon a true understanding of the facts, that this Court can infer that in some way there has been a failure properly to exercise the discretion; House v The King (1936) 55 CLR 499 at 505 and see Neil v Nott (1994) 68 ALJR 509 at 511 where the High Court allowed an appeal from the rejection of an application for an extension of time under Pt4 of the Administration and Probate Act 1958 (Victoria). Accordingly it is necessary, in my opinion, for this Court to determine whether a further period of time should be allowed up to and including 8 April 1992 within which the appellant can make her application under s7 of the FPA.

S5(1) of the Testators Family Maintenance and Guardianship of Infants Act 1916 provided, relevantly, that no application under that Act should be heard by the Court unless made within twelve months from the grant of probate of the will. Subs(2A)(a) provided that the time for making an application might be extended for a further period by the Court after hearing such of the parties affected as the Court thought necessary. In Re Dun (Deceased) (1956) 56 SR (NSW) 181 at 183, which was an application for extension under that Act, Myers J said:

"Tf an extension of the time for applying will cause no injustice to any person taking under the will, the time should, in my opinion, be extended. If it appears that an application for maintenance would be bound to fail it would be unjust to extend the time for applying, because that would delay the administration of the estate and involve it in expense to no purpose at all. But where it is not unreasonable to suppose that the application may succeed, the time should, in my opinion, be extended unless there are other circumstances showing prejudice to the beneficiaries or conduct on the part of the applicant himself which would justify a refusal. If he had elected to be bound by the will or, knowing his rights to make an application for an extension of the time, delayed for a long period in doing so, or lulled the beneficiaries into a false sense of security so that they

ordered their affairs on the basis that their legacies could not be disturbed, or induced them to refrain from requiring a speedy distribution, that might be conduct which would disentitle an applicant to an order extending the time."

In Re Guskett Deceased (1947) VLR 212 at 214 Herring CJ said that it was for an applicant to make out a case that would justify the granting of the indulgence sought. The applicant has to show reasons why the failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for the applicant to be penalised for being out of time. At 215 his Honour remarked that the strength of the applicant's claim for relief could not be taken into account when considering whether or not the discretion to extend the time should be exercised. See Hatton v Hatton (unreported) 6 September 1977 per Powell J, as he then was.

These and other cases were discussed by Young J in Massie v Laundy (unreported) 7 February 1986. His Honour pointed out that s16(3) of the FPA provides: "The Court shall not make an order under subs(2) allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless sufficient cause is shown for the application not having been made within that period."

Young J was of the view that when looking at sufficient cause one looks at the same factors as were dealt with in cases under the old Act. These included whether the reason for making a late claim was sufficient, whether the beneficiaries under the will would be unacceptably prejudiced if the time were extended and whether there had been any unconscionable conduct on either side which would enter into the equation.

In the present case the Master found that there was no prejudice to the other beneficiaries on account of delay and that finding is not seriously challenged. The Master referred to unconscionable conduct and said:

"Unconscionable conduct in this context, of course, relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate, and has then decided after the limitation period has expired, to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period."

With all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is here directed towards a deliberate holding off designed to lull the beneficiaries into a false sense of security. There is nothing to suggest anything of that sort in the present case.

This leaves two matters to be taken into account. First, in my opinion, on the evidence before the Master the appellant's application was not bound to fail. Secondly it is necessary to consider whether, within the meaning of subs(3), sufficient cause was shown for the application not having been made within the prescribed period. I accept the appellant's explanation. It is both reasonable and understandable. There is no other satisfactory explanation for her not applying within the prescribed period and for her then changing her mind. Despite the length of time that elapsed after the expiry of the prescribed period, in the circumstances where there is no prejudice to any other beneficiary, an acceptable and reasonable explanation for delay is given and, on the evidence, the appellant's application is not bound to fail, I consider that the time for making the application under s7 should be extended up to and including 8 April 1992.

Set aside the orders made on 22 October 1992 by Master McLachlan;

In lieu pursuant to s16(2) of the Family Provision Act 1982 extend the time for the filing of a summons seeking an order pursuant to s7 up to and including 8 April 1992;

Remit the application for an order pursuant to s7 of the Family Provision Act 1982 for hearing by the Equity Division;

The appellant's costs of the application before Master McLachlan for an extension of time to be costs in the application under s7;

The respondents' costs of the application for an extension of time to be paid out of the estate of the deceased on the trustee basis;

The costs of the appellant of this appeal and of the respondents of this appeal to be paid out of the estate the former on the common fund basis and the latter an the trustee basis.

Powell JA Two questions arise for determination upon the hearing of this Appeal from the refusal of Master McLaughlin to order, nunc pro tunc, that the time within which the Appellant might commence proceedings seeking, pursuant to the provisions of s7 of the Family Provision Act 1982 ("the FP Act") an order for the making of provision for her maintenance, education and advancement in life out of the estate of her late father ("the deceased"') be extended, and from the Master's dismissal of the Appellant's Summons in which, in addition to such an extension of time, the Appellant had also sought substantive relief. Those questions are:

whether the Master erred when he held (Appeal Book 220) that no adequate explanation for the Appellant not having instituted proceedings within the prescribed period had been established; and

whether the Master erred when he held (Appeal Book 220, 223) that the Appellant had failed to establish that the deceased, by his will, had failed to make adequate provision for her proper maintenance, education and advancement in life.

The facts which, as it seems to me, need to be borne in mind when determining those two questions are as I set out below.

The deceased (Graham Routh Canavan) died on Sth September 1988, having first made and published his last Will and Testament bearing date 13th August 1988, Probate No 103877/89 whereof was, on 16th June 1989, granted by this Court in its Probate jurisdiction to the Defendants - who were two of his four daughters - the Executrices and Trustees in the said Will named.

By his said Will, the deceased, after directing payment of his just debts, funeral and testamentary expenses and any duties, State or Federal, payable as a consequence of his death, directed his Trustees to hold the residue of his estate upon trust, first, to invest the said residue and to pay out of the income to be derived therefrom all expenses and income tax due in relation to such income, second, out of such income, to pay to his former wife, Barbara Mary Canavan ("Mrs. Canavan"), the sum of $10,000.00 per annum, such sum to be paid in quarterly instalments, and to reinvest any residue of the income as if it were capital; and from, and after, the death of his former wife, as to capital as well as to income, to hold the same until such time as the youngest of his grandchildren living at the date of his Will should attain the age of 25 years and thereafter to pay the capital and income of his investments to such of his said grandchildren

as should then be living in equal shares, there being a proviso for gift over in relation to the children of any grandchild who had died before attaining a vested interest.

The Estate of the deceased appears to have been sworn for Probate in the sum of about $350,000.00, the make-up of the Estate, at that time, not being revealed by the material contained in the Appeal papers, although the material in the Appeal papers would appear to indicate that, as at the date of the application for the grant of Probate, the nett value of the estate remained of the order of $350,000.00 the principal assets being what was described as a "Money Market Access Account" with AGC Ltd ($264,500.00) and what was described as a "Bill of Mortgage" ($75,000.00). As at the date of the hearing of the application which was dealt with by Master McLaughlin, the value of the investments held by the Respondents as trustees of the deceased's Estate appears to have been of the order of $420,000.00.

The deceased, who was 85 years of age at the date of his death, appears to have been married once only during his life, namely to Mrs Canavan, that marriage seemingly having taken place in London in 1936, at which time the deceased seems to have been a member of the Royal Air Force.

The deceased and Mrs Canavan appear to have had four children of his marriage, all daughters, they being the First Respondent ("Meriel"), born 7th August 1938, another daughter ("Christina") born 19th July 1942, the Second Respondent ("Ailsa"), born 2nd November 1944 and the Appellant born 27th September 1950. Each of the deceased's daughters, in her turn, married and had children, Meriel having had three sons, Christina having had a son and daughter, Ailsa having had three daughters and a son and the Appellant having had a son and a daughter. Although the evidence is not entirely clear, it would seem that, as at the time of the commencement of the proceedings which were dealt with by Master McLaughlin, two only of the grandchildren - they being two of Meriel's sons - had attained 25 years, the ages of the remainder ranging from 20 to 7 years, the two youngest in age being the Appellant's son then aged 10 and the Appellant's daughter, then aged 7.

Although the evidence is less than clear, it would appear that, at some stage, the deceased, Mrs Canavan and such of his children as had then been born emigrated to New Zealand where they continued to live until about 1965. At that time the deceased, Mrs Canavan, Christina and the Appellant immigrated to this country and took up residence at Darling Point in a property which the deceased had bought a year or two earlier. At the time when the deceased, Mrs Canavan and two children moved to Sydney, Christina, who would by then have been about 23 years of age, had apparently qualified as a nursing sister, while the Appellant was still a school girl - she appears to have concluded her secondary education as a pupil at Ascham School and thereafter, having earlier successfully completed a secretarial course at a business college, to have undertaken some course which qualified her as a horticulturalist.

The deceased and his former wife appear to have separated toward the end of 1969 - their marriage appears to have been dissolved, in about March 1972. At that time Woodward J appears, pursuant to the provisions of s87(1)(k) of the Matrimonial Causes Act 1959-1966 (Cth), to have approved a Deed made between the deceased and Mrs Canavan, in which deed Mrs Canavan abandoned any claim to maintenance.

As is apparent from what I have written above, each of the deceased's daughters were, in due time, to marry. At the time of the commencement of the proceedings, Meriel was living with her husband on a rural property near Hamilton in New Zealand; Christina was said to be living in a property at Fairlight, but whether she was still married is not clear; Ailsa was said to be living with her husband in a property at Niagara Falls; Canada, while the Appellant was living with her husband and two children in a rented property at Crown Road, Pymble. It is perhaps not without point to note, here, that, although the Appellant, in her principal Affidavit in support of her application, seemed to suggest that the reason why she, her husband and children were then living in rented accommodation was due to the fact that their financial affairs had come under strain, and although, to my knowledge, the Crown Road Primary School would have been located in close proximity to any house which the family then occupied, the Appellant made a point of recording in her Affidavit that each of her children, since the age of 3 years, had attended a private preparatory school, and, from the age of 7 years had commenced, in the case of the Appellant's son, as a pupil at Knox Grammar School, Wahroonga and, in the case of the Appellant's daughter, as a pupil at Abbotsleigh School at Wahroonga.

The financial stringency to which the affairs of the Appellant and her husband

Alexander McCracken Danskine, an accountant by profession, whom the Appellant married in February 1971 - had become subject was, so the Appellant seemed to suggest, the result of the purchase by her former husband, in 1982, of an accountancy practice at Chatswood, and litigation which flowed from that purchase, in consequence of which the Appellant's husband later relinquished his interest in the practice, and, after a time, acquired another practice in the Western Suburbs, and also in consequence of which, the Appellant and her former husband sold the property at Rosebery Road, Killara, which they had earlier purchased, and in which they and the children then lived, the proceeds of sale of that property being substantially expended in repaying the moneys which had earlier been borrowed to enable the Appellant's then husband to acquire, first, the practice at Chatswood, and then, the practice in the Western Suburbs and the costs involved in the litigation which had occurred.

Although it would seem that, between 1982 and mid-1990, the Appellant had been accustomed to assist her former husband in the conduct of his practice, by carrying out book-keeping and general administration, after mid-1990 the Appellant commenced to expand her business as a horticulturalist which, as it would seem, she had been conducting on a part-time basis for some time.

As will be apparent from what I have earlier written, the time within which the Appellant might, without the need to seek an extension of time, have commenced proceedings seeking an order pursuant to the provisions of s7 of the FP Act for provision out of the estate of the deceased expired in early March 1990.

In his Judgment, the Master records (Appeal Book 210):

"Tn the instant case, it appears that very shortly after the death of the deceased, the plaintiff received a copy of his Will. She was aware within a matter of a few days of his death of the contents of his Will."

In the Affidavit which she swore on 24th March 1992 in support of her application for an order extending the time within which she might bring an application for provision out of the deceased's estate, the Appellant deposed (inter alia) as follows (Appeal Book 14):

"At the time of the death of the deceased, I considered whether it was possible for me to make an application for provision from his estate. However, at that time it was my belief that any such claim by me would be limited to the portion of the capital of the estate which would ultimately be distributed to my children under the provisions of the deceased's will. I also believed that any provision which was made to me would have the effect of reducing the amount which my children would ultimately receive. I was therefore must reluctant to make any such claim. It was only when I was speaking informally to Counsel retained to act for me in the recent hearing in the Family Court of Australia that I was informed that it was not necessary that any order made by this Honourable Court in my favour would only be made from that part of the estate to which my children might otherwise be entitled.

Further, at the time of death of the deceased my husband was meeting the living expenses of the children and me and I did not need provision from the estate's funds to the extent that I now do. It is for this reason and as a result of my present financial position that I am now making a claim for maintenance and advancement out of my father's estate."

This passage would seem to indicate that, despite the fact that it contains no reference to the Appellant seeking advice as to her rights, if any, in relation to the Deceased's estate, she was, from a very early stage, aware that it was open to her to make application for provision out of the Deceased's estate. In her Affidavit, no suggestion was made by the Appellant that she had sought, and obtained, legal advice in this respect - this was, to say the least, somewhat curious, a fact WhiCh no doubt led to the Appellant being cross-examined in this respect when the application came before the Master, who dealt with this part of the Appellant's Affidavit and her cross-examination in the following way in his Judgment (Appeal Book 210-211): "''In her affidavit evidence the plaintiff said that she gave consideration to the possibility of making a claim. The material set forth in this regard in the affidavit was, however, somewhat sceptic. Under cross examination it was revealed for the first time that the plaintiff had, in fact, sought and obtained legal advice concerning her rights to make a claim against the estate of the deceased. She had at a time which was not precisely identified but which she said she thought was about an order (sic) after her father's death - that would probably be in the latter part of 1989 - consulted a solicitor, Mr Winston Readford, concerning her rights. The plaintiff did not have any face to face contact with Mr Readford, arrangements for the consultation being in the hands of her husband. However, she said that she received from Mr Readford a letter of advice. She apparently is no longer able to locate that letter. The plaintiff said that, as a result of receiving that letter, she was under the belief that any right which she might have to make a claim against the estate of her father would be a right which would be against only that share which, under the Will, went to her own two children; and that she was not prepared to make any claim which would detrimentally affect the share of her own children in the estate of their grandfather."

(One should, however, observe that, in the course of that cross-examination, the Appellant appeared to give two versions of how it came about that she was given advice in the matter, the first version (Appeal Book 88) appearing to suggest that it was the Appellant, in person, who had sought the advice from a Mr Winston Readford, a solicitor with a practice at Ryde, and the second (Appeal Book 89) suggesting that it was the Appellant's then husband who, on her behalf,

sought advice from Mr Readford, which advice was contained in a letter - written "a few weeks after I had spoken to him" - that being approximately a year after the death of the deceased.)

In April 1991 - that is, more than a year after the expiration of the time within which an application for relief pursuant to the provisions of s7 of the FP Act might be brought without the need of obtaining an extension of time - the Appellant and her husband separated. Although, at the time of their separation, the Appellant, her husband and their children had been living in a rented home in Stephens Street, Pennant Hills, within a short time each of the Appellant - who appears to have been the one to leave the property at Pennant Hills, taking the children with her - and her then husband both moved elsewhere, the Appellant taking up residence at a property at Kintore Street, Wahroonga which she then rented. After the separation, the Appellant's husband paid to her a weekly amount towards the support of the children, that amount being calculated as his liability under the provisions of the Child Support (Assessment) Act 1989 (Cth).

After the Appellant and her husband had separated, the Appellant brought proceedings in the Family Court of Australia seeking (inter alia) Orders:

For a settlement of property for weekly payments for herself and for a variation, by way of increase, of the amount of child support then being paid to the Appellant by her husband, the amount sought being sufficient to cover the fees payable for the children attending Knox Grammar School and Abbotsleigh School.

As part of those proceedings the Appellant sought Orders pending the final determination of the proceedings -

(a) that her husband pay forthwith the amounts sought to be recovered from her in proceedings in the District Court by the Deputy Commissioner of Taxation: and

(b) that her husband pay the fees payable in respect of the children attending Knox Grammar School and Abbotsleigh School. as well as a number of other Orders.

The Appellant's application for interim Orders was as it seems, listed for hearing on 16th September 1991. After what are said to have been "extensive negotiations" on that day, the application was resolved by consent. For present purposes, it should be noted that as part of the matters then agreed upon:

(a) there was made an Order that the Appellant's husband indemnify her in relation to the amount for which she had received a tax assessment for the year ended 30th June 1990 (that amount including the amount sought to be recovered in the District Court proceedings to which I have earlier referred);

(b) it was noted that the Appellant's husband would meet the school fees for the children until 31st January 1992.

The Appellant's application for final Orders was listed for hearing in the Family-Court on 20th and 21st January 1992. Again, the Appellant's application was compromised and there were made, by consent, a number of Orders. For present purposes it is sufficient to note that the Orders agreed upon included Orders:

(a) that the Appellant's husband transfer to the Appellant a Mercedes Benz motor vehicle;

(b) that the Appellant's husband pay to the Appellant

(i) maintenance for the children in the sum of $330.00 a week such sum to be payable until the parties' son attains the age of 18 years, following which the amount to be paid for maintenance for the parties' daughter "(be) such amount as may be appropriate";

(ii) for the Appellant, herself, the sum of $200.00 per week (nett of tax) for a period of 2 years on and from Ist February 1992, provision being made for the commutation of that sum if, within 6 months from the date of the making of the Orders, the Appellant's husband were to pay her an amount equivalent to 75 per cent of the total amount that would be payable over that period of 2 years;

(c) that the Appellant's husband indemnify the Appellant in respect of her tax liability for the year 1989/1990 (including the amount sought to be recovered in the District Court proceedings to which I have earlier referred) and (in substance) against the Appellant's tax liability for the taxation year ended 30th June 1991.

As will be noted from what I have just recorded, the final Orders made by the Family Court on the Appellant's application contained no provision for the payment by the Appellant's husband of the children's' school fees or any part thereof.

Although it seems clear enough that the application with which the Master was concerned to deal was filed as the result of the Appellant's lack of any significant success in her application to the Family Court, and although the Affidavit which the Appellant swore in support of her application was sworn by her a little over 2 months from the date of the making of the Consent Orders in the Family Court of Australia, that Affidavit contained no explanation of the reasons which motivated the Appellant to consent to the Orders which were made. In this respect, the Master, in the course of his Judgment, said: 'The plaintiff said that the situation had, however, changed quite considerably after the proceedings in the Family Court of Australia, to which I have already referred. Up to that time the plaintiff's husband had had the sole responsibility for paying the school fees of their two children. Those two children attend private schools, the son Guy, attending Knox College (sic), and the daughter Hillary (sic) attending Abbotsleigh School. The school fees for Guy are presently S9,300 a year, and for Hillary (sic) presently $8,260 a year.

The plaintiff's husband has been paying, and still continues to pay, maintenance for the two children. That maintenance is in a total amount of $330 a week. The plaintiff said that her husband has never shirked his responsibilities concerning payment of maintenance, and has never been in arrears in the payment of maintenance, and that until the end of January 1992, he had always paid punctually the school fees of the children.

Those two answers, in re-examination, seemed to me to be somewhat inconsistent. Mr Raoul Wilson of Counsel, for the plaintiff, attempted to explain that apparent inconsistency, in that the view that her husband could afford to continue paying for the children's education was an historical view, which the plaintiff had held until she was confronted by this additional material (which had not been included in the documents filed in the Family Court).

For whatever reason, however, the plaintiff did agree that the responsibility for the payment of the school fees of the children should pass from her husband to herself at the end of January 1992. It is clear that it is that fact which motivated the plaintiff into giving further consideration to her rights to bring a claim against her father's estate. She said that it was in conversation with the Counsel who was appearing for her in the Family Court that she became aware for the first time that any claim which she might make against her father's estate would not be limited to that part of the estate which could otherwise, under the Will, pass to her own children. It will be appreciated that it was a matter of only two and a half months after the making of the order in the Family Court that the present proceedings were instituted by the filing of the summons."

When he came to consider the question of whether or not the Appellant had made out a case for the extension of time, the Master, after referring to, inter alia, the Judgment of Young J in Ball v Newey! - overruled on the ground that his Honour erred in finding the then applicant not an eligible person (Ball v Newey?)

in which his Honour had said that the guidelines which the Court applies on such an application include:

(a) is the reason for making a late claim sufficient;

(b) would the beneficiaries under the Will be unacceptably prejudiced if the time were extended; and

and to the Judgment of Hodgson J in Basto v Basto3 in which his Honour had said:

"In my view there are three main elements to this overall question, namely, explanation of the delay, the question of prejudiced beneficiaries caused by the delay, and the strength of the plaintiff's case."

Usually, where there is an application for extension of time, the party making the application states expressly in the affidavit evidence in support, whether or not that party was, during the limitation period, aware of the existence of such a limitation period.

In that instant case the affidavit evidence was silent in that regard. However, under cross examination, the plaintiff said that she did not remember being informed by Mr Readford of any limitation period under th Family Provision Act.

It is clear that the essential reason for the plaintiff not making the application within time is that, almost two years after the expiry of the limitation period, the plaintiffs financial circumstances altered to her detriment; not on account of anything which had to do with her father's estate, but solely on account of an arrangement made by her with her husband concerning the responsibility for the payment of the school fees of their two children.

The next matter, which must be considered in the application for extension of time, is whether there is any prejudice to the beneficiaries which is caused by the delay. In the instant case the estate has not been distributed. There will be no distribution during the life time of the former wife of the deceased, Mrs Canavan, who is presently aged 84. Accordingly, I do not consider that there is any prejudice to the beneficiaries under the Will if there be an extension of time.

The third matter is whether there has been any unconscionable conduct on the part of the plaintiff in relation to this matter. Unconscionable conduct in this context, of course, relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate, and has then decided after the limitation period has expired, to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period.

It is also, in my view, of relevance to consider the strength of the merits of the plaintiffs claim for an order for provision. For, of course, if it will be appreciated that if there is no prospect of the plaintiff succeeding in the substantive claim for an order for provision, then the court will not make an order for the extension of time."

and, later, having expressed the view that the Plaintiff had failed to make out any case that the deceased, by the terms of his Will, had failed to fulfil the moral duty, which he owed to the Plaintiff as his daughter, continued (Appeal Book 220-222):

"However, in the event that I be wrong in that conclusion, it is appropriate that I should express some views concerning the extension of time. I do not consider that there has been an adequate explanation for the plaintiff not having instituted the proceedings within the prescribed period. The plaintiff received legal advice from a solicitor. She has chosen not to place before the Court a copy of the letter from the solicitor. Even if she is not able to locate the original, there is not the slightest reason why she should not have obtained a copy of Mr Readford's letter (which must have been sent to her no more than 3 years ago). She had not suggested that she requested a copy. She has not sought to subpoena Mr Readford to produce a copy. That letter would set forth the precise nature of the advice. I would be most surprised if the advice did not address itself to the question of the existence of a limitation period. I accept the statement by the plaintiff that she believed the advice was that any change to the Will would affect only the two elevenths interest of her own children in the estate. But whether or not that belief is based upon the advice which she received, is quite another question. If that advice had been before the Court, these speculations as to the nature of the advice would have been unnecessary.

As I have already observed, the plaintiff received the advice. She chose not to do anything about it during the prescribed period. After the expiration of the prescribed period she - in circumstances which have not been to my view adequately explained - entered into an agreement with her husband, which had the effect of considerably altering her financial situation to her detriment.

The plaintiff then chose to institute the present proceedings.

(It should be noted, in this regard, that, in his Written Submissions (Submissions at 8-9), counsel for the Appellant, who referred to the Judgments of Young J in Ball v Newey', and Massie v Laundy> and the Judgment of Hodgson J in Basto v Basto® accepted that the relevant considerations in an application for an extension of time pursuant to s16 of the FP Act are: (a) whether there is a sufficient reason for the claim not having been brought within time;

(b) whether the beneficiaries under the Will would be unacceptably prejudiced if time were extended;

(c) whether there had been any unconscionable conduct on either side; and (d) whether the claim, if permitted, has prospects of success.)

When he came to consider the question of the Appellant's prospect of success in the application, the Master, after referring to a number of factual matters, continued (Appeal Book 218-220):

It will be appreciated that in approaching and exercising the discretion vested in it by s7 of the Family Provision Act, the Court applies the principle of moral duty. That is, the Court considers whether the deceased by the terms of his Will fulfilled the moral duty which he owed to a person in the situation of the present plaintiff. If he did not, the Court considers what order should be made to remedy that omission on the part of the deceased.

It seems to me that, as I have already observed, the present claim of the plaintiff has been precipitated by a detrimental alteration in her financial circumstances, consequent upon the arrangement made between herself and her husband in January of this year - almost two years after the expiration of the limitation period - concerning the responsibility for the payment of school fees of their children, totalling $17,620 a year. In regard to those school fees, it should also be observed that there are currently school fees for the 1992 school year which have been incurred but not yet paid, in an amount for Guy of $8,000 and an amount for Hillary (sic) of $7,000. Every parent is entitled to choose whatever form of education they wish for their children. There can be no criticism of the plaintiff for desiring to have her children educated in the private school system.

I query, however, whether the moral duty which the deceased might be said to owe to his daughter, extends to ensuring that her children are educated at private schools. Certainly it is relevant to the moral duty of the deceased towards the plaintiff that her responsibilities for her children be taken into account. But I am not satisfied that in carrying out his moral duty as a wise and just parent, the deceased was required to ensure that the plaintiff was able to continue educating her children in the private school system, at a cost of more than $17,500 a year. It will be observed that the plaintiff was treated no differently by the deceased than were his three other children, her three sisters. This is evidence before the Court by the mother of the plaintiff - the former wife of the deceased - that she desired no alteration in the terms of the Will of the deceased. Similarly, none of the other children of the deceased, and none of the adult grandchildren of the deceased, have expressed any desire to make a claim against the estate. Indeed, a number of the grandchildren have expressly said that they wish the terms of the Will to be carried out.

Ball v Newey (unreported, Young J, 19 June 1987); Massa v Laundy (unreported, Young J, 7 February 1986); Basto v Basto (unreported, Hodgson J, 8 September 1989).

I do not consider that the plaintiff has established that the deceased, by the terms his Will, failed to fulfil the moral duty, which he owed to the plaintiff as his daughter. That being so, I consider that there is no Purpose in extending the time for the making of the application."

It should be noted that, notwithstanding the reference by the Master to the deceased's "moral duty", and notwithstanding that, by the time the appeal came on for hearing, the decision of the High Court in Singer v Berghouse (No 2)7 had been delivered and published in the Law Reports, counsel for the Appellant, in his Written Submissions in support of the Appeal (Submissions at 5-8), did not suggest that the Master erred in his use, in this context, of the concept of "moral duty", but, rather, submitted that, in determining whether or not the deceased's "moral duty" was, in the circumstances, discharged, the Master had taken into account irrelevant considerations.

For the reasons set out by him in the various passages from his Judgment which I have recorded above, the Master dismissed the Appellant's Summons with costs.

In due course, the Appellant filed a Notice of Appeal in which, as one has come to accept in such cases, a multitude of errors was attributed to the Master. In the event, however, the grounds of appeal now advanced on behalf of the Appellant seem to have been reduced to two, they being:

that the Master erred in failing to find that a sufficient explanation for the Appellant's not bringing proceedings within time had been established, that error being due, at least, in part, to the fact that, in his consideration of that question, the Master took into account irrelevant matters; and

that the Master erred in determining that the Appellant had failed to make out a case that the deceased had failed in his moral duty to her, that error being brought about, at least in part, by the Master taking into account irrelevant matters.

On the hearing of the Appeal, the Respondents filed a Notice of Contention in which it was asserted that the Master's decision ought to be affirmed on grounds other than those relied upon by the Master, those grounds being:

the Master erred in holding that there would be no prejudice to the beneficiaries under the Will if there were to be an extension of time; and

the Master should have found that upon the Affidavit of Mrs Canavan and the Affidavit of John Haneman, an accountant, who appears to have had the day to day management of Mrs Canavan's affairs, insufficient funds would remain available to maintain the life-long annuity provided to Mrs Canavan from the estate, so that prejudice would be occasioned to her, if any Orders for provision were to be made in favour of the Appellant.

The substance of the two Affidavits was that that Mrs Canavan who, in 1992, was 84 years of age, lived in a Nursing Home; that she had no property or assets of any commercial value; that her income was derived solely from the annuity under the deceased's Will and a part-pension; that her income was barely sufficient to meet her out-goings; that if interest payable on trustee investments

that being the nature of the investments in which the Estate was invested - fell, the Estate might not be capable of producing from income an amount sufficient to fund her annuity, and that if, the Appellant be awarded a legacy in any significant sum - such as the $100,000.00 which the Appellant had apparently

sought - the Estate would, in any event, be incapable of producing income sufficient to fund Mrs Canavan's pension.

Although - since there appears to have been no dispute on the hearing before the Master, as there was no dispute between the parties on the hearing of the Appeal (but see my comment at Transcript at 2-3) as to the matters to be considered in determining whether or not an Order for the extension of time be granted - I do not consider it open to me to give effect to my own views as to the approach which is now proper to be taken to that question, I should record my view that the approach which should now be taken is, first, to determine whether or not an adequate explanation for not commencing proceedings within time is given; and, second, whether, in all the circumstances, it is fair and just that an extension of time be granted. I say this since the various matters to which Young J in Ball v Newey' and Hodgson J in Basto v Basto® referred as being relevant are derived from a series of cases dealing with applications for an extension of time pursuant to the provisions of s5(2A) of the Testators Family Maintenance and Guardianship of Infants Act 1916 ("the TFM Act") or its interstate equivalents, at a time when any application for an extension of time had to be made and determined prior to the commencement of an application for substantial relief (Re Guskett!0: Re Dun!!; Re Newton!2 in which case, by reason of that circumstance it would have been unjust to an applicant for an extension of time to refuse him an extension of time if, at that stage, he had been able to establish that, if an extension of time were granted, he had reasonable prospects of success in any later application for substantive relief. Such an approach, as it seems to me, is quite inappropriate at the present time, when, as is almost invariably the case, and as was the case here, the application for an extension of time and the application for substantive relief are joined together in the same Summons and dealt with together on a single hearing. In such a case, so it seems to me, no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief.

In this regard, it is not without point to note that, although in its Report which led to the ultimate enactment of the FP Act (Report on the Testators Family Maintenance and Guardianship of Infants Act 1916 LRC 28 1977), The Law Reform Commission proposed to include in s14 - that is the section providing for the time within which proceedings ought to be brought - of its draft Bill a subsection in the following terms:

"(2) Subject to subs(3)(b) and subs(4) and to any order under s15, the court may, on the application of any person who adduces prima facie evidence that he is an eligible person and who shows sufficient cause, extend the time within which he may commence proceedings for an appointment for provision under s9, that proposed subsection finds no place in the FP Act." s16 of the FP Act contains no reference to "prima facie evidence".

Be all that as it may, for the reasons which I have earlier given, I do not consider it open to me to give effect to my own view, and, thus, I turn to deal with the question of whether or not an extension should have been granted, applying to that question the principles which the parties have chosen to adopt for the

Appeal Book, at 214P-214U.
Appeal Book, at 215B.

Appeal Book, at 220L-2200.
(1959) 76 WN 479

With respect to those who may be of a different view, I do not consider that the Master erred in holding that the Appellant had failed to establish sufficient cause for an application for substantive relief not having been made within the prescribed period. In this regard, it is sufficient, in my view, to note:

that, notwithstanding the clear provisions of s16(3) of the FP Act, the Appellant, in the Affidavit which she swore in support of her application, offered no explanation whatsoever for her application not having been made within the prescribed period;

that, even when the application came on for hearing before the Master, and despite the fact that some additional evidence was led in chief from the Appellant, no attempt was then made, to lead any evidence in chief going to the question of the reasons for there having been no application for substantive relief brought within the prescribed period;

that, when the question was raised in the course of cross-examination, the Appellant's responses were, to my mind, quite unsatisfactory. Thus:

(a) when referred to that paragraph (para31) of her Affidavit in which she had deposed that, at the time of the deceased's death, she considered whether it was possible for her to make an application, she, at first, said that she had spoken to, and instructed, Mr Readford to look into the matter, that being at a time prior to any of the family law matters affecting her husband (Appeal Book at 88) and that the matter was put aside after one consultation with Mr Readford (ibid);

(b) that, within a short time thereafter (Appeal Book 88-89) the Appellant asserted that the approach to Mr Readford was made about 12 months after the death of the deceased, that approach being made, however, not by her, but by her husband, and the advice, which was given by letter - which was not produced - although seemingly referring to the FP Act, seemingly had no relationship to the reason for her not then bringing an application, which reason was that she believed - it being solely her personal belief - that any provision which was made for her would have the effect of reducing the amount which he children would ultimately receive (Appeal Book at 89-90);

(c) that it was not until the time of the hearing of her application for final relief in the Family Court of Australia that she was disabused of her prior belief;

(d) later on (Appeal Book 91-92), that the reason why she had not earlier brought to the attention of her then legal advisers the fact that she had earlier sought advice was that the advice she had sought related to challenging the Will on the basis of the interest of her children and not of herself;

(e) that it was not until the conclusion of her application for final relief in the Family Court that she thought about bringing proceedings for substantive relief (Appeal Book 97).

These matters, in my respectful view, do not provide any explanation, let alone any adequate explanation, for the Appellant not having commenced proceedings for substantive relief within the prescribed period. On this basis alone, therefore, the Master was justified in dismissing the Appellant's application.

Let it be assumed, however, that, inadequate though the evidence is, it provided an adequate explanation for the Appellant's failure to bring her application within the prescribed period, there remains the question whether, as the Appellant submits, the Master erred in the exercise of the discretion, which he undoubtedly had, to grant, or to refuse, an extension of time.

Although it is my view that when he came to consider how he should exercise discretion, the Master may have erred - but in a manner which favoured the Appellant - in relation to the matters to which he ought to have regard when

considering how he ought to exercise his discretion, I do not consider that the Master erred in the proper exercise of that discretion. The matter to which I have just referred is the Master's statement:

... [do not consider that there is any prejudice to the beneficiaries under the Will if there be an extension of time."

(Appeal Book 214; see also 211) if, by that statement the Master, intended to refer not only to the deceased's grandchildren, but to Mrs Canavan. It may be, however, that the Master did not intend his comment to extend to Mrs Canavan for, later in his Judgment, he said (Appeal Book 222-223): "Some attempt has been made on behalf of the plaintiff to suggest that, because the financial and material circumstances of other persons receiving a benefit under the Will are better than those of the plaintiff, that fact somehow improves the plaintiff's case. It cannot be too strongly emphasised that in a claim of this nature the plaintiff must establish her own case upon its own merits. The fact that the chosen objects of the testamentary bounty of a testator are financially better off than the plaintiff and would, if the roles were reversed, not be in a position to obtain an order themselves, cannot in any way improve the claim of the plaintiff.

If the circumstances of the beneficiaries are not good, then that fact may reduce, or extinguish, the benefit which a plaintiff might otherwise receive. But the fact that beneficiaries may be financially in much more comfortable and affluent circumstances than the plaintiff, cannot ever increase the entitlement of a plaintiff to an order under the Act.

In the instant case, however, the situation of the plaintiff's mother must be considered. Various calculations have been placed before the Court showing the income which must be received by the estate, in order to provide the annuity of $10,000 a year to the plaintiff's mother, who is now living in a retirement home.

It seems to me that were I to have held that the plaintiff had established entitlement to an order, then I certainly would not have made an order of the nature sought on behalf of the plaintiff, which was an order that she receive a legacy in the sum of about $100.000 to provide her with the wherewithal for educating her children, a new motor vehicle for her horticultural activities and a sum sufficient to pay a deposit on the house property.

Such a legacy would have substantially reduced the assets of the estate to a point where there might well be doubt in these days of decreasing interest rates, as to whether the estate could bear the annuity which has to be paid to the plaintiff's mother."

For my part, it is my view that the fact that making any present order on the Appellant's application for substantive relief would, or at least would be likely to, put at risk the annuity to which Mrs Canavan was entitled - (Mrs Canavan's claim upon his testamentary bounty clearly having been regarded by the deceased as of a higher status than that of anyone else, a view, of correctness of which the Appellant appeared to concede in the course of her cross-examination (Appeal Book 98):

"Q. What is your proposal in relation to the making of this application so far as your mother's welfare is concerned?

A. That that portion which is required to maintain her annuity, he left intact.") provided a sufficient reason for not making any provision for the Appellant on her application. One adds, that if the payment of any provision to the Appellant were to be deferred until after the death of Mrs Canavan - which determined, but, in the circumstances, totally misguided, pursuit of a private school education -

determined to continue her lemming-like rush to her financial self destruction, will, in all probability be bankrupt, in which event any provision will be unlikely to be any use to her.

In all the circumstances, therefore, I am of the opinion that the Orders proper to be made on this Appeal are:

ORDER that the Appellant pay the Respondent's costs of the Appeal.

Cole JA Mrs Veronica Graham de Winter has appealed from a decision given by Master McLaughlin on 22 October 1992 dismissing a summons in which the appellant sought an order pursuant to s16(2) Family Provisions Act 1982 extending the period within which the appellant might make application for an order pursuant to s7 of that Act, and for an order pursuant to s7 that provision be made for her out of the estate of her deceased father, Graham Routh Canavan.

The deceased died on 5 September 1988. The prescribed period for bringing an application for provision pursuant to s7, absent any extension granted by the Court, is eighteen months from the death of the deceased.!3 The application was thus required to be brought by 5 March 1990. In fact it was filed on 8 April 1992. Pursuant to s16(2) the Court has a power to extend the time to bring such an application but: "The Court shall not make an order under subs(2) allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless sufficient cause is shown for the application not having been made within that period." !4

"T do not consider that there has been an adequate explanation for the plaintiff not having instituted the proceedings within the prescribed tune." !5

In expansion of this finding, the learned Master wrote:

"The plaintiff received legal advice from a solicitor. She has chosen not to place before the Court a copy of the letter from the solicitor. Even if she is not able to locate the original, there is not the slightest reason why she should not have obtained a copy of the Mr Readford's letter (which she must have been sent to her no more than 3 years ago). She has not suggested that she requested a copy. She has not sought to subpoena Mr Readford to produce a copy. That letter would set forth the precise nature of the advice. I would be most surprised if the advice did not address itself to the question of the existence of a limitation period.

I accept the statement by the plaintiff that she believed the advice was that any change to the Will would affect only the two elevenths interest of her own two children in the estate. But whether or not that belief is based upon the advice which she received, is quite another question. If that advice had been before the Court, these speculations as to the nature of the advice would have been unnecessary.

The learned Master concluded his judgment in the following terms:

"But, in any event, I do not consider that in the circumstances of this case the prescribed period should be extended; where, first, the plaintiff can be regarded as having been aware of her rights, but has chosen not to exercise them within that period, and, second, where the altered circumstances which had given rise to the making of this claim have been brought about by an express decision on the part of the plaintiff herself.""!7

Prior to expressing the views which are quoted above, the Master had, in accordance with prior authority!8 held that in considering an application for extension pursuant to s16 regard should be had to:

(a) explanation of the delay in bringing the application;

(b) any prejudice to beneficiaries either caused by the delay or consequent upon the granting of an extension;

The Master found that as the estate had not been distributed, nor could be distributed during the life of the former wife of the deceased who had a life annuity, there was no prejudice to the beneficiaries under the will if an extension of time was granted.20 The Master did not express a concluded view regarding any unconscionable conduct on the part of the plaintiff. He wrote:

Although it is unnecessary to express a concluded view, it must be doubted whether such a change of mind constitutes unconscionable conduct.

The Master then considered the fourth circumstance, namely, the "strength of the merits of the plaintiff's claim for an order for provision''22. His conclusion was:

"T do not consider that the plaintiff has established that the deceased, by the terms of his will, failed to fulfil the moral duty, which he owed to the plaintiff as his daughter. That being so, I consider that there is no purpose in extending the time for the making of the application."23

Ball v Newey (unreported, Young J, 19 June 1987); Massa v Laundy (unreported, Young J, 7 February 1986); Basto v Basto (unreported, Hodgson J, 8 September 1989).

The High Court in Singer v Berghouse4 has endorsed the view of Kirby P expressed in Golosky v Golosky?5 that:

"Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be brought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."

The majority in the High Court in Singer have upheld the President's view that the principles governing appellate review of discretionary decisions apply to an appellate review of what has been called the jurisdictional question on a s7 application.26 The jurisdictional question requires a determination whether "the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty."

Just as the principles enunciated in House v the King?' apply to an appellate review of the jurisdictional question, so equally they apply to an appellate review of the exercise of discretion by a Master to decline to grant an extension of time. As was said in House v The King:

"Tt is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has materials for doing so. It may not appear how the primary judge has reached the result embodied in his order but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."28

In essence, three grounds of attack were mounted upon the Master's exercise of discretion. First, it was said that the Master made a wholly erroneous assessment of the applicant's prospect of success. Second, it was contended that there was "an erroneous and impermissible finding that the deterioration in the applicant's financial circumstances should be attributed to a voluntary disadvantageous act by herself, namely the family law settlement with her

(unreported, Court of Appeal, 5 October 1993 at 13-14).
Singer v Berghouse (1994) 181 CLR 201 at 212.

husband.29 Third, there was an erroneous finding unsupported by the evidence that the applicant knew of the limitation period and knowingly did not bring proceedings within that time.3°

The Master recorded that the income of the appellant to support herself and two teenage children totalled $780 per week, comprising earnings of $250 per week, maintenance from her former husband of $200 per week and maintenance for the children of $330 per week. Her own maintenance was for a limited period of two years from February 1992.3! The Master also referred to the appellant's expenses listed in her affidavit sworn 24 March 1992.32 Those expenses totalled $957.50 per week including rental of $375 per week. Of that $957.50, $720.50 was attributed by the appellant to provision for her two children, apportioning $250 rent to them. In cash terms, the appellant thus had a deficiency of $177.50 per week for herself and her children but had an excess if she be considered alone.

Having referred to the appellant's income and expenditure, although the financial equation enunciated above was not expressed by the Master in his reasons, it must be assumed that the comparison of income and expenditure was to mind.

Much of the evidence, and the Master's judgment, concentrated upon one aspect of the property settlement agreed between the appellant and her former husband in early 1992. The two children of the marriage had always attended private schools. As an interim measure the husband had agreed to pay the private school fees until 31 January 1992. Thereafter there was a property settlement in which, upon the basis of legal advice, the appellant agreed to a settlement which made no provision for the former husband continuing to pay the children's private school fees. That was said to have occurred in circumstances where documents had been produced to the appellant or her legal advisers which indicated or suggested that the former husband was unable to continue to meet private school fees for the two children. The settlement was reached on legal advice after consideration of those documents. The appellant, shortly after the settlement, commenced the Family Provision Act proceedings with the intent of seeking funds to enable her to maintain her children at a private school. School fees totalled approximately $17,650 per year. At the hearing before the Master the 1992 fees of approximately $15,000 remained unpaid.

Much time was spent in evidence, and in the Master's reasons, addressing this issue. The Master stated:

"T query, however, whether the moral duty which the deceased might be said to owe to his daughter extends to ensuring that her children are educated at private schools. Certainly it is relevant to the moral duty of the deceased towards the plaintiff that her responsibilities for her children be taken into account. But I am not satisfied that in carrying out his moral duty as a wise and just parent, the deceased was required to ensure that the plaintiff was able to continue educating her children in the private school system, at a cost of more than $17,500 per year."33

Appeal Book, at 11-12, para27.
Appeal boot at 219-220.

In my view the Master was correct in his finding that the appellant's claim upon the estate had been "precipitated by a detrimental alteration in her financial circumstances, consequent upon the arrangement made between herself and her husband in January of this year - almost two years after the expiration of the limitation period - concerning the responsibility for the payment of school fees of their children, totalling $17,620 a year."

That finding was not attributing blame to the appellant for her action: it was a mere statement of the fact that prior to the settlement with her husband her children's private school fees were paid by him and after the settlement they were not. Her desire to keep them at private schools undoubtedly precipitated her application. The appellant said so in terms: Q. "It is true to say, of course, so far as your priorities attached to this application are concerned, the vast bulk of it goes to the schooling of your children."

I am also of the view that the Master was correct in doubting, and not being satisfied, that, in the circumstances of this case, such claim as the applicant might have upon the testator does not extend to accommodating her desire to keep her children at private schools. In my view the aspect of the cost of private schooling for the appellant's children can be put to one side to a significant extent in considering the strength of the appellant's claim.

It does not follow that because the appellant's living expenses exceed her income that it can be said that the jurisdictional question involved in a s7 application must necessarily be answered in her favour. The prohibition upon making a s7 order contained in s9(2)(a) prohibits an order unless the court is satisfied that "the provisions (if any) made in favour of the eligible person by the deceased person either during his lifetime or out of his estate... is, at the time the court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the eligible person".

No provision had been made by the deceased for his appellant daughter during his lifetime or by his will. All of his estate had been left to be divided amongst his eleven grandchildren, including two children of the appellant. All of his four daughters had been treated equally: no provision was made for them by his will. "Proper maintenance" involves considerations other than of adequacy.35 Regard must be had to the size of the estate, here some $400,000, the demands of others upon the testator, here an annuity of $10,000 per annum for the deceased's former wife and mother of the appellant; the claims of the grandchildren beneficiaries, and the totality of the relationship between the appellant and the deceased. That relationship was not good. The appellant regarded her father as having a "most combative personality". She said:

"Tn view of his personality, it was not possible for any member of the family to have a warm or dose relationship with him. My relationship with the deceased was respectful. However, I did not have any major falling out with him, and we maintained a father/daughter relationship until the end of his life. At no time was the relationship suspended or ended."36

Singer v Berghouse (1994) 181 CLR 201 at 210; Bosch v Perpetual Trustee Co [1938] AC at

Rightly, or wrongly, her father regarded her conduct in relation to an aspect of the Kent estate as disadvantaging the appellant's mother and to some extent himself. This less than close relationship was a factor which the Master, rightly, considered in determining the strength of the appellant's claim.

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