Hancock v Thomas [1998] VSC 143

Supreme Court of Victoria|1998-11-20|Before: BEACH, J.

This is the return of a summons on originating motion filed in the Court whereby the plaintiff, Thomas Hancock, seeks an extension of time within which he may make a claim against the estate of his mother Rose Hancock deceased pursuant to the provisions of s.99 of the Administration and Probate Act 1958.

I see no useful purpose in setting out the detail of this matter in my reasons for judgment. It is fully dealt with in the affidavits filed in support of the plaintiff's application.

As more than six months has elapsed since the grant of probate of the will of the deceased, to succeed in his application the plaintiff must satisfy me that he has a reasonable explanation for his failure to make application within the period of six months as stipulated in s.99 of the Act.

It was conceded by counsel for the defendant that the plaintiff has satisfied the onus which rests upon him in that regard. In my opinion the concession was properly made. It is unnecessary therefore to consider that aspect further.

What is contended on behalf of the defendant is that as the plaintiff is an adult son of the deceased he must establish a special need or a special claim before he can succeed with his application, that in the circumstances of this case the plaintiff does not have an arguable case in that respect, and accordingly his application should fail.

The deceased was survived by five children, the plaintiff who was born on 1 April 1928, Sydney William Hancock who was born in 1922, Beryl Rose Thomas who was born in 1924, Vera Eileen Thomas who was born in 1926 and Frederick Harold Hancock who was born in 1930.

At the time of her death the principal assets in her estate were two residential properties, one at Glen Iris and the other at Blairgowrie. The Glen Iris property is now valued at $360,000; the Blairgowrie property at $120,000.

By her will dated 28 April 1978 the deceased gave a life interest in the Glen Iris property to her sons Sydney and Frederick and provided that after her death that property was to form part of her residuary estate. Neither Sydney nor Frederick married. Sydney died in 1990 and Frederick in 1998. The deceased made no provision whatsoever for the plaintiff in her will but left her residuary estate to be divided equally between the other four children. Subject to the outcome of this application the residuary estate therefore will be divided between Beryl and Vera.

One can ascertain no reason why the deceased chose to make no provision for the plaintiff in her will. The evidence before me is to the effect that the plaintiff was close to his mother up to the time at which she died.

Financially there does not appear to be much differentiation between the situation of the plaintiff and that of his two sisters. Each of them would appear to own their own homes. So far as the plaintiff is concerned he also owns a modest holiday house at Tootgarook although his son has a one third interest in the house.

One matter relied upon by the plaintiff is that in 1995 he suffered a massive stroke which left him paralysed down the right side of his body. Since December 1996 he has been forced to live in a nursing home. The pension which he now receives leaves him a sum of the order of $50 per month after payment of the nursing home charges.

Having considered the material placed before me I think it can be said that the plaintiff has an arguable case. In that situation I extend the time within which the plaintiff may make his application to 8 October 1998 which is the date upon which he filed his originating motion in the Court. In the circumstances I order that the parties' costs of the application be their costs in the cause.

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