Fanning v Harding [2013] VCC 570

County Court of Victoria|2013-05-28|Before: Mr J

**1 In this proceeding, there were summonses before me. The first was the defendant's summons filed 8 April 2013 seeking to strike out the plaintiff's claim under Part IV of the Administration and Probate Act 1958 ("the Act"). The defendant's application was made under rule 23.01(1) of the County Court Civil Procedure Rules 2008 and s62 of the Civil Procedure Act 2010 ("the CPA").

2 The second was the plaintiff's application by summons filed 19 April 2013 seeking an order for an extension of time, pursuant to s99 of the Act, in which to bring her Part IV application seeking provision for her proper maintenance and support from the estate of her late sister, Lillian Yvonne Kitchingham ("the deceased").

3 I determined to hear the plaintiff's application.

4 In support of her application, the plaintiff relies on her affidavit sworn 21 March 2013, and two affidavits of her solicitor, Simon Parsons, sworn 19 April and 1 May 2013. In opposition to the plaintiff's application, the defendant relies on two affidavits sworn 8 and 24 April 2013, and two affidavits sworn by Richard Kent of 8 and 24 April 2013.**

**5 The deceased died on 4 February 2007, leaving a will dated 2 September 2005. At the time of her death, the deceased was aged sixty-seven years. The deceased died leaving two children, her son, the defendant, and her daughter, Tania Freeman, from whom she was estranged.

6 Prior to the death of the deceased, the plaintiff was aware that the deceased made a will in September 2005.

7 The deceased's will appointed the defendant as her executor. Pursuant to her will, after payment of her just deaths and testamentary expenses, including a loan of $35,000 from the plaintiff, the deceased left the balance of the estate to the defendant.

8 The deceased's original will was lost and, ultimately, probate was obtained of her copy will after the plaintiff made application to the Supreme Court under s15 of the Act for the defendant to show cause why he should not bring the will into Court and why he should not renounce probate of the will. The proceeding was resolved by consent orders in December 2010 which required the defendant to forthwith apply for probate of the copy will.

9 Probate of the deceased's copy will was granted to the defendant on 1 July 2011. According to the inventory of assets and liabilities filed in support of the application for a grant of probate, the deceased left a net estate of $126,650.22, comprising of her property at Lot 631 Bluff Drive, Loch Sport, Victoria ("the Loch Sport property"), valued at $160,000, less the $35,000 loan owed to the plaintiff.**

**10 The plaintiff is the elder sister of the deceased. The plaintiff says that the deceased had ongoing problems with bowel cancer and depression for twelve years, which made it difficult for her to care for herself.

11 The defendant disputed this evidence. He deposed that the deceased had polyps removed from her bowel in the mid 1980s and that she was never diagnosed with bowel cancer. He did not believe she was diagnosed with depression, but said she was incredibly lonely after her husband's death. The plaintiff sold her property at Tootgarook, near Rosebud, and moved to Loch Sport in January 2004 to be near the deceased.

12 Also, in January 2004, the plaintiff said that she advanced the deceased the sum of $35,000 for repairs to the deceased's house. The sisters spent time together playing lawn bowls, cards and going out. The plaintiff and the deceased travelled to Europe for a holiday in December 2004, which was funded by the plaintiff. In July 2005, the deceased was diagnosed with terminal pancreatic cancer and the plaintiff suggested she stay with the plaintiff overnight. The deceased never returned to her own property. The plaintiff cared for the deceased, provided food and maintenance and paid some accounts on the deceased's property until her death.**

The Plaintiff's Application Seeking Provision from the Estate of the Deceased

**13 Probate of the deceased's copy will was granted to the defendant on 1 July 2011. Pursuant to s99 of the Act, the time for making a Part IV application expired six months later, on 1 January 2012; however, because of the Court vacation, by the latest 10 January 2012, by operation of the County Court Rules.[1]

14 On 23 February 2012, the plaintiff filed an originating motion seeking provision from the deceased's estate.

15 In letters dated 2 March and 9 March 2012, the defendant's solicitor informed the plaintiff's solicitor that an application for extension of time should be made under s99 of the Act. On 6 July 2012, a further letter was sent by the defendant's solicitor to the plaintiff's solicitor in respect to the plaintiff's claim seeking provision.

16 Although the affidavit of the defendant disclosed that the plaintiff lodged a caveat over the Loch Sport property on 10 June 2010 claiming an interest in estate in fee simple in the whole of the Loch Sport property on the grounds of an alleged constructive trust, it was not clear on what basis the plaintiff claimed a constructive trust or whether the claim was relevant once the plaintiff issued proceedings seeking provision from the estate of the deceased. In my view, the subsequent claim by the plaintiff seeking provision from the deceased's estate contradicts the plaintiff's constructive trust allegation.**

The Plaintiff's Application Seeking an Extension of Time

**17 Notwithstanding the notice given by the defendant's solicitors in March and July 2012, it was not until 19 April 2013 that the plaintiff issued her application by summons seeking an extension of time.

"99 Time within which application may be made

No application shall be heard by the Court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will or of letters of administration (as the case may be):

Provided that the time for making an application may be extended for a further period by the Court after hearing such of the parties affected as the Court thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall be made before the final distribution of the estate and no distribution of any part of the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon."

**19 The plaintiff is required to make out a case to justify the granting of an extension of time. The Court's discretion in this regard is broad and unfettered by any "rigid rules"[2] and must be exercised judicially.[3]

20 An applicant bears the onus of proof in showing the reasons why there has been a failure to apply within time and why such failure should be excused.[4]

21 An applicant must apply promptly for an extension of time after becoming aware of the right to apply for an extension of time.[5] A strong case for an extension of time may be lost if the applicant delays unduly after becoming aware of the right to apply for provision.[6]

22 The merits of the plaintiff's case have relevance to the exercise of the Court's discretion as it is obviously futile to let a claim proceed which is flawed or hopeless.[7]

23 It is also relevant for the Court to consider whether there is prejudice to the beneficiaries if an applicant were successful.

24 A final consideration in determining applications is whether the estate has been finally distributed. In such circumstances, no extension application can be made as it would be futile. In this proceeding, the estate has not been finally distributed.**

**25 Counsel for the plaintiff submitted that the reason for the delay was an oversight of the plaintiff's solicitor, which was contributed to by a computer problem, and that the delay of 54 days is not excessive. Further, the time between the issuing of the originating motion and bringing the application for extension of time is explained by negotiations between the parties.

26 The affidavit of the defendant disclosed that the plaintiff had been legally represented since November 2010 when she issued proceedings against the defendant because he had not obtained probate at that time.

27 Counsel for the defendant conceded there was a short delay in filing the originating motion after the time for making application under Part IV expired, but submitted there had been substantial delay in the plaintiff bringing the application for an extension of time, namely sixteen months. This was so, particularly in the circumstances where the defendant's solicitor had informed the plaintiff's solicitor in March, and then July 2012, that the plaintiff's application under Part IV was out of time and that the plaintiff was required to seek an extension of time, and then no steps were taken by the plaintiff to rectify the situation until the defendant issued an application to strike out her claim by summons filed 8 April 2013. In response, the plaintiff issued an application by summons dated 19 April 2013 seeking an extension of time.

28 I accept the explanation of the plaintiff for the delay in filing the originating motion. In argument before me, there was a dispute as to the extent of the 'without prejudice' negotiation between the parties. On the evidence before me, those negotiations took place between December 2012 and February 2013. In my view, this is not a reasonable explanation for the delay, because a competent and prudent solicitor would have issued the extension application, at the very latest, after he received the defendant's letter on 9 March 2012. In my view, the delay is the fault of the plaintiff's solicitor.**

The Merits of the Plaintiff's Claim for Provision

**29 The merits of the plaintiff's claim have relevance to the exercise of the Court's discretion. In McCann v Ward,[8] Dixon J stated that the merits of the plaintiff's potential claim have some relevance to applications of this nature, because it would be futile to permit a claim to proceed which is hopeless or destined for failure.

30 In support of her claim for provision, the plaintiff relies on the close sisterly relationship that existed between the deceased and her, and the care she provided after the deceased was diagnosed in July 2005 with pancreatic cancer.

31 The defendant disputed the extent of the "close relationship" that existed between the plaintiff and the deceased. He described the relationship between the plaintiff and the deceased as "on and off". He deposed that there were long periods when the plaintiff and the deceased were not on speaking terms and that between 1993 and 1997, the plaintiff and the deceased were estranged.

32 It was not in issue on the evidence that the deceased commenced to live with the plaintiff in July 2005; however, the defendant disputed the deceased's level of activity and financial dependence on the plaintiff.

33 The defendant deposed that until April 2006, the deceased was active, contributing to household chores and cooking meals. The defendant deposed that he visited the plaintiff and the deceased regularly on a monthly basis and was in contact by telephone on a weekly basis. The deceased's health deteriorated in August 2006, when he visited more regularly.

34 The plaintiff is aged eighty three, having been born in 1930, and is retired. She receives a tax free pension through ComSuper of $150.00 per week and a War widows' pension of $508.00 per week. She rents a house in Loch Sport at $160.00 per week. Her other assets are a 1996 Mitsubishi motor vehicle worth approximately $2,000, and cash in the bank of approximately $150,000. In addition, the plaintiff is entitled to repayment of the loan of $35,000 from the deceased's estate. The plaintiff says she has a number of health concerns. She is asthmatic and diabetic. She has had her thyroid removed and has constant bowel problems, and her gallbladder is diseased. Because of her response to an anaesthetic, she cannot have further anaesthetics, which means her gallbladder cannot be removed. She requires a walker for mobility purposes.

35 The plaintiff deposed that she had made some financial contribution to the estate of the deceased in the form of payments to handymen for gardening and maintenance and payment of rates and utilities on the estate property. The details of any such contribution is scant in her affidavit material. The plaintiff said she supported the deceased financially in the time the plaintiff lived with her. This was disputed by the defendant.

36 Ordinarily a sibling relationship is not sufficient, in the absence of special circumstances, to provide the basis for a successful claim under Part IV.[9] Marshall v Spillane[10] is the only reported case of a successful claim by a sibling where a brother was found to have enjoyed a relationship with his sister as a "dutiful son" and she to him as a "loving mother" over the whole period of his life. A claim by a sister that provision be made for her from the estate of her brother was dismissed in Sanderson v Bradley.[11]

37 A critical issue in all Part IV cases is whether the relationship gives rise to the relevant moral duty. In Schmidt v Watkins,[12] a claim was made by a male plaintiff against the estate of the woman who had been his business partner and whom he alleged was his defacto spouse. Harper J rejected the plaintiff's claim on the facts; however, he said:[13]**

"In the context of this case (as will be seen when the facts are examined) it is relevant to observe that friends, neighbours and even mere acquaintances not infrequently provide to another assistance of an extraordinarily generous kind over an extraordinarily long period; but neither they, nor the recipients of their generosity, nor the community, would necessarily or even ordinarily conclude that as a result the recipients had a responsibility to make adequate provision in their wills for the proper maintenance and support of their benefactors."

**38 In the present proceeding, the plaintiff provided love, support and care for her sick sister for a period of eighteen months. I accept that the support provided was for a limited time and the existence of such a relationship of its own would not necessarily be sufficient to provide an arguable foundation for a successful claim. It would seem that the plaintiff made some financial contribution to the estate of the deceased, albeit that the detail of such contribution is particularly scant in the affidavit material.

39 The plaintiff must demonstrate need. Need is a threshold issue which must be demonstrated before the Court's jurisdiction under Part IV is enlivened. The plaintiff has a combined tax-free pension of $650 per week, $150,000 in the bank and an entitlement to $35,000 from the deceased's estate. Her rent is $160 per week. In my view, it is difficult to see how the plaintiff could demonstrate need in such circumstances.

40 In my view, the prospects of a successful claim by the plaintiff cannot be characterised as strong. Based on the evidence before me, taking the best possible view of the plaintiff's evidence, I am not satisfied that the plaintiff has an arguable case.

41 In addition, the deceased's estate is very modest, approximately $126,000. If this proceeding is allowed to continue, the estate will be quickly diminished. While the likely costs of the proceeding is not "prejudiced" in the sense used in the cases, it is a relevant matter, especially where the estate is very modest. I adopt the words of Kaye J in Stanley v State Trustees Limited:[14]**

"... If the plaintiff's application were granted, the estate would incur additional costs, which are disproportionate to the size of the estate. The plaintiff's claim is weak. The plaintiff has not, on the materials before me, produced any sufficient basis upon which an indulgence should be granted in his favour. In those circumstances, in the exercise of my discretion, I consider that the justice of the case requires that I refuse the application by the plaintiff for an extension of time within which to bring an application under Pt 4 of the Administration and Probate Act."

42 Finally, the defendant, being the son of the deceased, was the natural object of the deceased's testamentary disposition. His claim to the estate as part of the deceased's immediate family is greater than the plaintiff's claim.

**43 The question ultimately is whether, in the exercise of my discretion, I should grant the plaintiff an extension of time within which to issue proceedings under Part IV of the Act. In this case, the delay by the plaintiff in issuing her originating motion was relatively short and the explanation for that delay is reasonable. However, there was a substantial period of delay of the plaintiff issuing an application for extension of time. As stated, a competent and prudent solicitor would have issued the extension application in March 2012 after this was brought to his attention by the defendant's solicitor. I also take into account the fact that this matter was brought to the plaintiff's solicitor's attention on a number of occasions and that the extension application was only brought after the defendant issued a strike out application, which ended up being a substantial delay. It was only after the strike out application was issued that the plaintiff filed an affidavit in support of her extension application.

44 Having considered all the evidence before me, including the nature of the relationship, the merits of the plaintiff's claim, her financial situation, the fact that she had been legally represented since 2010, the delay by the plaintiff's solicitor, the very modest size of estate and the defendant's relationship with the deceased, I dismiss the plaintiff's application for an extension of time within which to bring an application under Part IV of the Act.

[2] Ansett v Moss [2007] VSCA 161 at [6] per Buchanan JA

[3] Menzies v Marriott [2009] VSC 345

[4] Re Guskett (decd) [1947] VicLawRp 28; [1947] VLR 212 at 214; Re Nassim (dec'd) [1984] VicRp 5; [1984] VR 51; West v West [1996] TASSC 17; (1996) 5 Tas R 392 at 397; Ashhurst v Moss & Ors (2006) 14 VR 291at [106] citing Re Guskett (decd)

[5] See, for example, Re Guskett (decd) (ibid) at 214; Re Salmon (decd) [1981] Ch 167 at 175; Ashhurst v Moss & Ors (ibid) at [106]

[6] Lazenby v McDermott [2000] TASSC 121

[7] McCann v Ward [2010] VSC 452 per Dixon J

[9] Re Will and Estate of Marotte (decd) [2011] VSC 324 per Zammit AJ at [49] - application by a sister against deceased's brother's estate

[14] [2012] VSC 24 at paragraph [38]

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