Succession - Family provision and maintenance - Practice - Time for making application - Extension of time - Delay of almost 36 years - Decision made not to make an application.

Testator's Family Maintenance Act 1912 (Tas), s11(2).

In re Guskett deceased [1947] VicLawRp 28; [1947] VLR 212; Re Walker, deceased [1967] VicRp 116; [1967] VR 890; Re Lauer, deceased [1984] VicRp 14; [1984] VR 180; Re Burgess [1984] 2 Qd R 379; Re Barrot, deceased [1953] VicLawRp 45; [1953] VLR 308, followed.

Judgment Number: [2000] TASSC 121

RONALD ARTHUR McDERMOTT and GEORGE ALBERT McDERMOTT

1 The applicants are the surviving daughters of the late Albert Leslie McDermott ("the testator"). The respondents are sons of the testator and the executors and trustees of his estate. The applicants seek an order pursuant to the Testator's Family Maintenance Act 1912 ("the Act"), s11(2) that the time limited by s11(1) for the making of an application for provision out of the testator's estate be extended. The time within which the applicants might have commenced proceedings as of right expired almost 36 years ago.

2 The testator married Ivy May McDermott more than 70 years ago. Of that union there were six children, the applicants, the respondents, another son who was made a party to these proceedings and another daughter who died about 18 years ago. The eldest of the five surviving children is 77 this year and the youngest is 60.

3 At about the time of the birth of the youngest child, the testator bought a small farm of 47 acres or thereabouts, at Cambridge ("the family farm") and he and his family lived on it until his death on 6 August 1963. According to the affidavit evidence, the farm generated only a meagre income. The testator supplemented his income by working as a blacksmith and by doing other odd jobs from time to time. For a short period, the testator ran a sawmill on the family farm.

4 All the parties to the application tendered affidavit evidence and were cross-examined. From this material it is clear that the applicants and the respondents were brought up in a secure, loving and caring environment by the testator and his wife. There seems to be no suggestion that during their lives the testator or his wife preferred any one or more of the children over the others.

5 In 1950 and again in 1954, a small block was excised from the family farm and conveyed to the respondents Ronald McDermott and George McDermott respectively. Upon these blocks of land, each of the boys built their family home and have lived there ever since.

6 At the time of the testator's death, the applicants were married and their now deceased sister was living in a de facto relationship with a man. The two eldest respondents were married and employed as public servants. The youngest, Dudley, was then unmarried and worked at various jobs from time to time. At the date of the testator's death, all of the children were in approximately the same financial position.

7 The testator's will was made in 1950, 13 years before he died. By it, the testator appointed Ronald and George McDermott as executors and trustees of his estate, as well as trustees for the purposes of the Settled Land Act 1884. The testator devised and bequeathed the whole of his estate to his trustees upon trust for his wife for life or until re-marriage. Thereafter, the testator left the whole of his estate to his three sons in equal shares, subject to them paying each of his daughters £200.

8 In her oral evidence, the applicant Mrs Lola Lazenby said that having regard to the value of her father's assets at the time the will was made, the testamentary provisions treated each of the six children equally and fairly. However, she said that in the intervening years things have changed.

9 According to the affidavit of assets and liabilities sworn shortly after the testator's death in August 1963, the assets of the estate, which comprised the family farm, associated machinery and equipment and a cottage and land at Orford, were together worth £13,013.00.04. Liabilities amounted to only £265.15.04, which left a net estate of £12,747.05.00.

10 The will was admitted to probate on 11 December 1963. The time within which proceedings under the Act could be brought as of right expired on 11 March 1964.

11 After the testator's death, his widow remained on the family farm. She did not re-marry. She died on 13 September 1999, 36 years after the death of her husband. By this time, the value of the family farm had increased to $300,000. In addition, the estate included $30,000, being the proceeds of the sale of the cottage at Orford and a debt owed by the respondent Ronald McDermott for a five acre block which was cut from the family farm and transferred to him in 1973.

12 The applicants contend that the testamentary provisions are most unfair, but fairness is not the issue on this application. The issues on an application for provision out of the estate of a deceased person pursuant to the Act, s3 are whether the applicants, or either of them, have been left by the testator without adequate provision for their or her proper maintenance and support and, if yes, what provision should be made in all the circumstances. The relevant time for ascertaining whether the applicants, or either of them, have been left without adequate maintenance and support is not the date of the application, but the date of the testator's death in 1963. See Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494; In re McCaffrey, Deceased (1982) 29 SASR 582. However, before any of those issues fall for consideration, the applicants have to establish that the time within which an application may be made for an order making provision for them out of the estate should be extended.

13 Following the testator's death, the respondents cared for their mother as her needs required. There was material in the affidavit and oral evidence to the effect that over the years the respondents expended money and time effecting repairs and improvements to the family farm. I accept that evidence, but am satisfied that the work was done by the respondents in order to look after and improve the living conditions of their mother and not in order to invest capital in the property which they would eventually own. In any event, the money spent over the 36 years that the widow lived on the family farm was small and each of the respondents, to differing degrees, enjoyed some benefit from the life estate by having free access to the family farm while their mother lived on it.

14 I am equally satisfied that the applicants also cared for their mother by looking after her generally, in particular by attending to her immediate needs towards the end of her life when she became blind. The applicants knew that the respondents were spending time and money on the family farm, but said nothing to them about it. This is not surprising, for I am satisfied that all the parties viewed this work as no more than the discharge of an ordinary familial duty.

15 Neither of the applicants saw a copy of the testator's will until 1986, when they consulted a solicitor, Mr Worrall, and he obtained a copy for them. However, I am well satisfied from the applicants' evidence that both of them were aware of the terms of the testator's will from a time not long after their father's death. It was common ground that neither applicant said a word to either of the executors of the estate about the will being unfair, although Mrs Lola Lazenby did complain to her brother Dudley about this on several occasions, the first being a few years after the testator's death.

16 In 1986, aware that property values were increasing, Mrs Lola Lazenby decided to consult Mr Worrall. She said that by that time she though £200 "was pathetic". Mrs Lola Lazenby persuaded her sister to come with her when she went to see Mr Worrall. Mrs Lola Lazenby deposed "I do not recall Mr Worrall giving any advice about time limits", but in her cross-examination, she asserted quite firmly that it was not true that Mr Worrall said something to her about time limits. Mrs Narie Lazenby (the sisters married cousins with the same name) said that she was unable to recall whether or not Mr Worrall said anything about a time limit for the commencement of proceedings.

17 Mr Worrall gave oral evidence. He refreshed his memory from the file which he had kept. He said, "I don't recall directly having given advice or not about time limits but it is inherent in the nature of the enquiry that was made that I would have given that advice. It is my practice to give such advice".

18 From all of this evidence I am not able to conclude, as was urged upon me by Mr Tierney for the applicants, that the probabilities are that Mr Worrall did not advise the applicants that there was a time limit within which proceedings under the Act had to be brought. Similarly, the evidence is not sufficiently clear to enable me to be satisfied upon the balance of probabilities that Mr Worrall did so advise the applicants. However, I am satisfied that when the applicants consulted Mr Worrall they had in mind making a challenge of some kind to the will as they felt that they had been unfairly treated by its provisions. There is no direct evidence of what advice Mr Worrall gave the applicants, other than that to which I have referred. However, having regard to the fact that the consultation was sought because the applicants considered that the testamentary provisions were unfair to them in the light of the then value of the estate, I infer that the applicants sought Mr Worrall's advice with respect to the possibility of upsetting those provisions. Accordingly, I find that by at least 1986, the applicants were aware, in a general sense, of the powers conferred by the Act.

19 After consulting Mr Worrall, the applicants let the matter rest until shortly after their mother's death, when Mrs Lola Lazenby spoke to her brother George seeking a larger share of the estate. I infer her request was refused. Consequently, this application was filed on 12 January 2000.

20 By way of explanation for their failure to take any step to try and prosecute their claim for a larger share of the testator's estate over 30 years, the applicants rely upon statements they say were made to them by their mother.

21 According to Mrs Lola Lazenby, she raised with her mother the question of her father's testamentary provision for his daughters on a number of occasions after her father's death. She said that on each occasion, her mother agreed with her that the will was unfair, but expressed the view that she had faith in the boys in that they "would do the right thing by us [daughters] in the long run". Mrs Lola Lazenby said that her mother said that she would speak to her brother George about the matter. With respect to this issue, Mrs Narie Lazenby deposed:

"On a number of occasions after my fathers [sic] death my mother indicated to me that she thought the provision for me in my fathers [sic] will was insufficient & that on her death my brothers would see to it that I received a fair share."

22 I accept the applicants' evidence about the conversations that each said they had with their mother. From that evidence, I find that the provisions of the deceased's will were a continuing source of concern to the applicants, in particular Mrs Lola Lazenby, over the whole period of 36 years that their mother enjoyed her life estate. Notwithstanding this, neither applicant raised their concern with either of the respondent trustees, even though they had many opportunities to do so and knew that the trustees were responsible for the administration of their father's estate. It was not suggested by the applicants that they were afraid to raise their disquiet over the terms of their father's will with their brothers George and Ronald. The applicants offered no reason for not mentioning their disquiet to the trustees of the estate during their mother's widowhood other than the existence of the reassurances given by their mother.

23 As Crisp J observed in In re Wherrett [1963] Tas R 178 at 179, the Testator's Family Maintenance Act, s11(2), confers an unfettered power to extend the time within which proceedings under the Act may be commenced. I respectfully agree with his Honour's observation that each case must therefore depend upon its own facts and that it is unwise to attempt an exhaustive list of the circumstances in which an order will be made. Obviously, relevant matters in the exercise of the discretion will include the length of the delay, whether there is a reasonable explanation for the delay, prejudice to the respondents and the strength of the applicant's case. See, eg, In re Guskett deceased [1947] VicLawRp 28; [1947] VLR 212; Re Walker, deceased [1967] VicRp 116; [1967] VR 890; Re Lauer, deceased [1984] VicRp 14; [1984] VR 180; Re Burgess [1984] 2 Qd R 379. In Re Barrot, deceased [1953] VicLawRp 45; [1953] VLR 308, Sholl J said, at 312:

"The jurisdiction to extend the time is discretionary. But, while it can never be right for the Courts, when the Legislature has not done so, to attempt to specify grounds on which alone the discretion can be exercised in favour of an applicant, it is on the other hand obvious that the mere making of an application for an extension of time is not enough to constitute prima facie a ground for granting it. The legislation contemplates that the court or Judge must be satisfied of some circumstances which should induce it or him, acting judicially - ie, 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 the delay."

24 In Warren v McKnight [1996] NSWSC 419; (1996) 40 NSWLR 390, Hodgson J said, at 394, that there were four factors which can be relevant to the exercise of the discretion to extend time, namely, the sufficiency of the explanation for the delay, prejudice to the beneficiaries, any unconscionable conduct on the part of the applicant and the strength of the applicant's case. The statute prescribed no maximum period of time after which leave will not be granted and there are cases in which leave has been granted after the expiration of a very considerable period of time. See, eg, Re Claverie (deceased) [1970] 2 NSWR 380 (16 years); In the Estate of Barry, Deceased; Circosta v Executor Trustee and Agency Company of South Australia Limited (1974) 9 SASR 439 (18 years). The delay in this case is extraordinarily long, in excess of that in any other case that I have been able to find. However, the authorities are clear that although the length of the delay is a relevant factor in the exercise of the discretion, a very long delay per se, does not necessarily mean the application should be refused.

25 I shall assume for the purposes of this decision that the applicants have established that they have an arguable case. It is true, as Mr Spence submitted on behalf of the respondents, that prejudice would be suffered by them if the application succeeds, in the sense that a very long delay per se, generates prejudice (Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541) and because of the death of the widow and one of the siblings. In addition, Mr Spence submitted that there had been prejudice to the respondents by reason of the expenditure by them of capital upon the family farm in the expectation that ultimately they would gain the benefit of that expenditure. I have already dealt with the last of these submissions, and although there is some substance in the complaint of delay, in my view, it is not a weighty matter in the exercise of the discretion.

26 In In re Tregear Deceased [1948] SASR 248, Reed J said at 249 - 250:

"But as a person who desires to apply for the benefit of the Act has an absolute right to do so only within the stipulated period, it may, I think, be assumed that an application for extension of time should not be granted unless the applicant makes out a case by showing some ground for the exercise of the power arising from a sufficiently weighty reason for not taking proceedings within the stipulated period; and that the reason advanced must be considered in relation to the expectation created in the minds of other persons entitled under the testamentary dispositions of the testator that by the expiration of that period without any application having been made they will receive the benefit of those dispositions without diminution."

27 In this case, both applicants held the belief for some 30 years or so, that they should have received a greater share of the estate than that which is provided for them by the testamentary dispositions. They did no more than complain about this to their mother. Although they received from their mother the assurances to which I have referred, both applicants knew that she could do no more than try and exert moral influence over the trustees and their other brother. During the whole time that the applicants' mother was a widow, the applicants' complaint was not mentioned to the trustees, despite continuous opportunity to do so. It is clear that the applicants were not content to accept, without question, that their mother would try and exert influence over the trustees and the other brother or, if she did, that it would be successful, for they not only raised the issue with their mother on more than one occasion, but they also took the matter to a solicitor 14 years ago. In consequence, by that time at the latest, the applicants were aware, in general terms, of the right to challenge testamentary provisions but made a conscious choice not to do so. In these circumstances it cannot be said that there has been shown a satisfactory explanation for the very long delay.

28 In the light of the foregoing, it is unnecessary to entertain Mr Spence's submission that the application should be dismissed because there has been "a final distribution of the estate" within the meaning of the Act, s11(4), and therefore the application cannot be made. Mr Spence accepted that if I followed my decision in Shand v Smith and Ruddle A34/1996 with respect to the meaning of the statutory expression "final distribution of the estate", that submission must fail. In Shand I applied Easterbrook v Young [1977] HCA 16; (1997) 136 CLR 308 and followed Re Lago, deceased [1984] VicRp 62; [1984] VR 706. Mr Spence submitted that I should reconsider Shand because Easterbrook and Lago are distinguishable on the basis that the words of the relevant statutes contain material differences. His contention was that I should follow the reasoning in an earlier case, Re Donkin, deceased [1966] Qd R 96. I must confess that I am unable to immediately detect any material difference between the New South Wales statute under consideration in Easterbrook and the Act with respect to this aspect of the matter, and consequently, can see no immediate need to reconsider Shand. However, if it is necessary to do this, it will have to await another more suitable occasion.