Fyffe v Fyffe [2001] VSC 48

5. The deceased, Jeffrey James Fyffe, died on 25 June 1999. Probate of his will dated 28 August 1998 was granted to Roslyn Gail Fyffe on 6 March 2000.

8. Sarah Fyffe and Mark Fyffe are the daughter and adopted son of the deceased, respectively. The deceased's will made no provision for them but contained a declaration by the deceased that he had "... made sufficient provision to (sic) them during my lifetime".

11. The first plaintiff was born on 21 September 1982 and is the daughter of the deceased by his second wife, Marion Joy Fyffe. The second plaintiff was born on 18 October 1973 and is the son of Marion Joy Fyffe by a former relationship. He was legally adopted by the deceased.

14. The defendant, Roslyn Gail Fyffe, is the third wife of the deceased.

17. The first plaintiff's upbringing appears to have been somewhat tumultuous. Her family life appears to have been dysfunctional and her schooling disrupted. She lived with her parents until they separated in October 1995 after which she lived with her mother. Her education concluded at secondary school in Year 10 although she subsequently undertook some TAFE studies.

20. After her father's death the first plaintiff discussed his estate briefly with a solicitor in the context of attempting to obtain the return of personal items of hers allegedly retained by the defendant. She has no recollection of her solicitor telling her about a six month time limit for claims such as that which she now seeks to pursue. She was undergoing counselling at the time and found her situation confusing.

23. Some time after her eighteenth birthday in September 2000 the first plaintiff's mother arranged for her to retain her current solicitor to advise her generally. Initially that advice concerned the disposal of a superannuation fund in which the deceased had an interest with AXA Australia. For some considerable time a question remained unanswered as to whether that fund (some $750,000) would be paid to the deceased's estate thereby rendering it solvent or to other beneficiaries in which case the deceased's estate would be unable to meet its obligations, especially those to the first plaintiff's mother pursuant to orders of the Family Court of Australia. It has only recently become clear that the $750,000 from AXA Australia will in fact be paid into the estate.

26. The second plaintiff left home in 1988 after an argument with his father and has, since 1995, lived in Perth, Western Australia. After the deceased's death the second plaintiff sought no legal advice concerning the estate but believed that there was little money in it by reason of amounts owed to his mother under orders of the Family Court and other business debts. He took advice concerning his position only in late 2000.

29. An affidavit filed by the defendant, Roslyn Gail Fyffe, exhibits two letters from her solicitors to AXA Australia Ltd. Although the date on the first of those letters is not discernible, I infer from the first paragraph of the second letter that the first letter was probably written on 25 August 2000. That letter acknowledges the possibility of "TFM claims" being made against the deceased's estate. Further, the plaintiff's present solicitor, Andrew Pickles, has deposed that in a letter dated 20 October 2000 from him to the defendant's solicitors the following paragraph appears:

"On the basis of our instructions it appears that the estate is insolvent. It would only be in a position to pay the pecuniary legacies under the will and to fully discharge its obligations to Ms Fyffe if the death benefit was paid to it. Further, only then could claims under Part IV of the Administration and Probate Act against the estate be considered. On our instructions, it appears that Ms Fyffe does have such a claim. She has not brought one to date because of the apparent insolvency."

33. The legislation which I must apply contemplates that the court must be satisfied of circumstances which should induce it, acting fairly and properly upon relevant materials and in relation to relevant considerations, to excuse the applicant from what would otherwise be the privative operation of the section as a result of his or her delay (Re Lauer [1984] VicRp 14; [1984] VR 180 per Young CJ at 185 citing Re Barrot [1953] VicLawRp 45; [1953] VLR 308; Amos v Amos [1966] VicRp 61; [1966] VR 442).

36. In Re Nassim [1984] VicRp 5; [1984] VR 51 Nicholson J, as he then was, held that the lack of knowledge by an applicant of the size and extent of the testator's estate which is not caused or contributed to by any fault or lack of action on the applicant's part may provide a ground for an extension of time under s. 99 of the Act provided the applicant acts promptly to enforce his rights.

39. In this case the extent of the estate left by the deceased could not be known until the fate of the AXA superannuation payment was known. That occurred, in fact, only after this application for an extension of time was filed. Had the AXA superannuation payment not been made to the deceased's estate the estate would have been insolvent and no action by any applicant against it would have yielded any result. Indeed, as may be seen from the letter of Mr Pickles, quoted above, it was still believed in late October 2000 that the estate would be insolvent. To have instituted proceedings (which step is not inexpensive) whilst the estate was probably insolvent would not have been prudent. At least not to have done so can hardly now be criticised as failing to exercise due care in the protection of one's own interests.

42. In Clayton v Aust (1993) 9 WAR 364 the Full Court of Western Australia considered the question of an extension under a similar provision to s. 99. Malcolm CJ referred to Re Salmon (deceased) [1981] Ch 170 and, in particular, the judgment of Megarry VC where some of the considerations which might actuate the discretion conferred by a section such as s. 99 are discussed. Of paramount importance in that discussion is the acknowledgment by Megarry VC (and Malcolm CJ) that the discretion to extend the time limit is unfettered, although his Honour then lists a number of considerations which might cause the discretion to be exercised in any particular case.

45. In essence, a court faced with a question of extending time under s. 99 Administration and Probate Act 1958 must consider the justice of the individual case. Whilst the considerations enunciated by Megarry VC give some guidance they are not definitive.

48. In this case the plaintiffs appear to have an arguable case for relief on the substantive issue. At all times until quite recently it was believed that the estate of the deceased was insolvent and that no application would yield any result. The granting of an extension of time at this point will cause no prejudice to any present beneficiary entitled under the deceased's will. They will be in no worse position than if an application had been made within the six month limitation period. Even if the explanations given by the plaintiffs for their failing to act within time are somewhat exiguous, in my opinion the overall justice of this case demands that they be now permitted to bring a claim under Part IV Administration and Probate Act 1958 in respect of their late father's estate. Accordingly, I grant the relief sought.

51. The plaintiffs also sought, by their summons, interlocutory relief by way of injunction with respect to the distribution of the estate of the deceased. This application was brought about by their perception that the defendant might act in relation to the estate in some way detrimental to their interests were she not restrained by injunction.

54. The obligations of an executor are clearly prescribed by the general law. For one thing, it was a condition of her being appointed as executor that she file an affidavit undertaking to properly administer the estate of the deceased. It seems to me that it would be a breach of that undertaking were the executor now to act in relation to the estate such that she jeopardised the proper disposition of the applications in respect of which the court is now granting an extension of time. Such a breach of undertaking could have serious consequences. Further, the protections provided to an executor under Part IV Administration and Probate Act 1958 with respect to distributions made before a claim is notified are predicated upon the basis that once an executor has notice of such a claim he or she will act appropriately in relation to the estate generally having regard to that notice. Accordingly, I regard an interlocutory injunction as being unnecessary and it is therefore refused.

57. Upon the hearing of this matter counsel agreed that in the event that an extension of time was granted certain interlocutory orders would follow by consent. Accordingly, the court makes the following orders:

1. That the time for the plaintiffs to make application pursuant to Part IV Administration and Probate Act 1958 be extended to 10 January 2001.

2. That the plaintiffs have leave to amend their originating motion herein to claim provision under Part IV Administration and Probate Act 1958 by 9 March 2001.

3. That any affidavit on which the defendant wishes to rely be filed and served by 16 March 2001.

4. That any affidavit on which the plaintiffs wish to rely in reply be filed and served by 30 March 2001.

5. That the proceeding be referred to mediation by a mediator to be agreed between the parties and in default of agreement to be nominated by the Court, such mediation to take place on or before 15 May 2001, and, if the plaintiff in proceeding No. 7582 of 2000 obtains leave to bring an application under Part IV Administration and Probate Act 1958 and that proceeding is referred to mediation, then together with the mediation of that proceeding.

6. That if the matter fails to settle at mediation, then it be referred (together with proceeding No. 7582 of 2000 if appropriate) to the Listing Master to be fixed for trial on the first available date.

7. That the plaintiffs shall as soon as practicable leave an authenticated copy of this order with the Associate to the Listing Master.

8. That not more than 14 days and not less than seven days before the date fixed for:

the defendant file and serve on the plaintiffs an affidavit setting forth the financial position of the estate.

10. That the costs of this application be reserved.

11. That this order be drawn up by the solicitor for the plaintiffs and signed by a Judge pursuant to Order 60.04 Rules of Civil Procedure.