Fennessy v Fennessy [2002] VSC 66

Supreme Court of Victoria|2002-03-21|Before: BEACH, J.

This is an application brought by the plaintiffs against the executors of the estate of their late father pursuant to the provisions of s.99 of the Administration and Probate Act 1958 (the Act) seeking an extension of time within which to make an application to the Court that adequate provision be made for their proper maintenance and support out of the estate of the deceased.

It is trite law that applicants seeking such extensions must provide a sufficient reason explaining the delay in making the application (see Brown v. Holt[1] and Shannon v. Public Trustee[2]) and must make out an arguable case that the deceased had a responsibility to make provision for the proper maintenance and support of the applicants but failed to do so (see s.91 of the Act and Clayton v. Aust).

The determination of those matters requires some brief statement of the background to the matter, all the more so as the case put forward on behalf of one of the plaintiffs is quite different from the case put forward on behalf of the other.

At some unspecified time but prior to February 1978 the deceased Raymond Thomas Fennessy commenced a de facto relationship with Joanne Thompson. At that time the deceased was employed as a ship's steward by the Trans Tasman Line. The parties lived together in a Ministry of Housing flat in Port Melbourne.

On 27 February 1978 the first plaintiff Ryan John Richard Fennessy (Ryan) was born.

Ryan is now aged 24 and is a ship's steward earning a gross salary of $48,000 per annum.

In 1988 the second plaintiff Teagan Aliesha Fennessy (Teagan) was born.

Teagan is now aged almost 14 and attends the Academy of Mary Immaculate School in North Fitzroy.

Both Ryan and Teagan live with their mother in the Ministry of Housing flat in Port Melbourne. Ms. Thompson works on a permanent part-time basis as a customer service assistant for the TAB at the Elsternwick Hotel earning a gross income of $22,861.41 per year.

On some unspecified date the deceased purchased a property at 56 Charlotte Street, Newport. According to Ryan the property was initially purchased as an investment but with a view to it ultimately becoming the parties' family home.

However, in an affidavit sworn by the brother of the deceased, the first defendant Richard Hugh John Fennessy (Richard) has sworn that the deceased purchased the Newport property when he realised that his relationship with Ms. Thompson was crumbling and he knew that he would require a place to live.

Again, although there is a dispute as to the precise year this occurred it would appear that towards the middle of the 1990's the deceased developed cancer and separated from Ms. Thompson.

For some 18 months the deceased lived with another brother Gary Fennessy then moved into the Newport property. In October 1996 the deceased's brother Richard moved into the property with him.

The deceased died on 30 August 2000. Probate of his will and estate was granted to the deceased's brother Richard and Francis Ruggiero on 9 October 2000.

The deceased's will provides that after payment of all debts etc. the deceased's Newport property is to be held by his trustees to allow his brother Richard to occupy it until Teagan reaches the age of 25. The property is then to be sold and the nett proceeds divided equally between his two children Ryan and Teagan.

The residue of the deceased's estate is also to be held by his trustees until Teagan reaches the age of 25 and is then to be divided equally between Ryan and Teagan.

For practical purposes the residue of the deceased's estate consists of the sum of $26,271.84 superannuation received by the estate from the trustees of the Seafarers Retirement Fund. It is the intention of the trustees of the deceased's estate to invest that sum for the benefit of the deceased's children in accordance with the terms of the deceased's will.

Finally so far as this aspect is concerned the deceased's will gives his trustees power to pay the whole or any part of the income or capital of the beneficiaries' share, while such beneficiary is under the age of 25, in or towards the beneficiaries' maintenance, education, welfare and benefit in life.

And so for practical purposes the deceased left his estate equally to his two children but endeavoured to preserve the substance of it until Teagan attained the age of 25.

The reason the deceased did so is sworn to by the first defendant in his affidavit of 20 December 2001. In summary Richard contends that the deceased did not want his children to have access to any capital sums from the estate until they were mature enough to manage a substantial sum of money and had the strength to resist their mother's demands for cash.

On 14 September 2001 the plaintiffs filed their originating motion in the Court, that is, some five months after the six months limitation period had expired.

Teagan's mother who is also her litigation guardian has sworn that the first time she saw a copy of the deceased's will was when she received a copy of it from the defendants' solicitors on or about 31 July 2001; that at that time she did not know that any application for further provision out of the deceased's estate could be made by Teagan or that it had to be made within six months from the date of probate; and that it was not until she contacted her present solicitors on 3 September 2001 that she ascertained that Teagan could make such a claim but that she would have to make application for an extension of the six month period.

Ryan has sworn that he did not know that it was possible for him to make a claim for further provision until he obtained advice concerning the matter in September 2001. (The affidavit of his mother is to the effect that Ryan accompanied her when she consulted her solicitors on 3 September 2001. I assume that it was at that time he received the advice.)

Clearly if it is otherwise appropriate to do so, an extension of time should be given to Teagan. A 13/14 year old girl could not be expected to know of the six month period of limitation and would be dependent upon her mother in regard to such matters.

As to Ryan - there is no challenge to his evidence to the effect that he did not know of his entitlement to make a claim until September 2001 and in the circumstances although he is now 24, I consider that he has given a sufficient reason for the delay.

The real question in this case is can it be argued that in making the provision he did for Ryan and Teagan the deceased failed to fulfil the moral duty which rested upon him to make provision for the proper maintenance and support of his children.

The reality of the situation is that the deceased left the whole of his estate to be divided equally between Ryan and Teagan. The only restriction the deceased placed on the distribution was that it is not to occur until Teagan reaches the age of 25 and that in the meantime his brother Richard is to be permitted to occupy the property at Newport.

When one considers the contribution Richard made to the welfare of the deceased between 1996 and the date of death of the deceased one could not be in any way critical of the deceased's actions in that regard.

When Richard came back from Sydney to live with his brother at Newport he suffered a substantial drop in salary and loss of the rental subsidy he was receiving from his employer.

Whilst living with the deceased Richard paid board and paid for one half of all household expenses including the costs of gas and electricity.

It is hardly surprising in those circumstances that he received a benefit from the deceased's estate albeit a modest one.

Ryan is an adult in secure employment earning $48,000 gross per year. In my opinion it can hardly be said that he is unable to support himself. In any event the deceased's will does not provide for what is to happen if either Ryan or Teagan dies before Teagan attains 25 years of age. In that situation whilst Ryan and Teagan presently have a vested interest in one half of the deceased's residuary estate, upon Teagan reaching the age of 18 years both she and Ryan can call on the trustees to distribute the corpus to them of the trust set up in clause 8 of the will. See Saunders v. Vautier [4] and Williams on Wills, 7th Edition, Volume 1 at pp.328-329 and 806.

Teagan of course is still attending school. Pursuant to the power given them to pay the whole or any part of the income or capital of the beneficiaries' share while such beneficiary is under the age of 25, in or towards the beneficiaries' maintenance, education, welfare and benefit in life - the executors have paid Teagan's school fees at the school she is presently attending. There is no reason to believe that they will not continue to do so.

I am not persuaded that it is arguable that by his will the deceased failed to make provision for the proper maintenance and support of his children. Indeed I consider the contrary to be the situation. The plaintiffs' application for an extension of time therefore is refused.

I order that the plaintiffs' summons filed 14 September 2001 be dismissed.

I order that the defendants' costs of the application including any reserved costs be taxed on a solicitor client basis and paid to them from the residuary estate of the said deceased.

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