Leahey v Trescowthick [1999] VSC 409

5. The deceased died on 3 November 1998. He left a will dated 1 May 1995 ("the will"). Probate of the will was granted to the defendants, Melissa Jane Trescowthick Strong and Patrick Trescowthick Morison on 1 December 1998. The defendants are grandchildren of the deceased.

8. The inventory of assets and liabilities lodged by the defendants for probate purposes disclosed that the deceased left real estate valued at $450,000 and personal estate in Victoria valued at $2,634,635.58 and personal estate in New South Wales valued at $139,555. The total value of the estate for probate purposes was $3,224,158.58. The total liabilities of the estate were $650.20. The wealth of the deceased was accumulated from his founding and operation of a shoe business known as Julius Marlow.

11. In the will the deceased left the sum of $30,000 each to the defendants as proved the will in lieu of executors' commission. After bequests of jewellery and paintings to children and grandchildren, the deceased left the balance of the estate to his wife provided she survived him. The wife of the deceased died on 9 March 1998. The deceased provided in the will that in the event his wife predeceased him the estate was to be distributed as follows:

(1) $200,000 to the first defendant upon trust to apply the income and capital of such trust fund at her discretion towards the education, maintenance, advancement or benefit of the children of the first defendant.

(2) $200,000 to the second defendant upon trust to apply the income and capital of such trust fund at his discretion towards the education, maintenance, advancement or benefit of the children of the second defendant.

(3) $150,000 to a grandson of the deceased, Joseph Trescowthick Morison upon trust to apply the income and capital of such trust fund at his discretion towards the education, maintenance, advancement or benefit of his children.

(4) The residue of the estate to be converted into cash and after the payment of debts, duties and taxes to each of the daughters of the deceased, Rosemary Ann Leahy and Maureen Elaine Morison in equal shares and in the event of one or other daughter not surviving the deceased the share of that daughter was left to the children of the relevant daughter in equal shares.

17. Both daughters survived the deceased. The deceased had two children, his daughters, Rosemary Ann Leahy and Maureen Elaine Morison. The two daughters formed what might be termed the "Leahy side" wherein the plaintiffs lie and the "Morison" side wherein the defendants lie.

20. On the Leahy side, Rosemary Ann Leahy married David Bruce Leahy and had four children: David Ivor Leahy, the second plaintiff, born on 2 March 1962 now aged 37; Jonathon Bruce Leahy, the fourth plaintiff, born on 9 July 1963 now aged 36; Sarah Mary Leahy, the first plaintiff, born on 5 March 1965 now aged 34; and William James Leahy, the third plaintiff, born on 3 December 1966 now aged 32. Of the children of Rosemary Ann Leahy only the first and second plaintiffs have children.

23. On the Morison side, Maureen Morison married and had three children: Melissa Jane Trescowthick Strong, the first defendant, Patrick Trescowthick Morison, the second defendant, and Joseph Trescowthick Morison. Each of the children of Maureen Morison have children of their own.

26. It follows that the great grandchildren of the deceased on the Morison side benefit under the terms of the will by way of the educational trusts created for their benefit by the deceased.

29. Part of the Victorian personal estate of the deceased consists of shares in a private company, Cleeve Pty Ltd ("Cleeve"). The court was informed of very little about Cleeve but it appears that it was a family company related to the original Julius Marlow shoe business and was controlled by the deceased. The assets of Cleeve consisted of cash amounting to approximately $3.6M. It appears that most or all of the family of the deceased have an interest in Cleeve by way of shares, at least the children and grandchildren of the deceased, including the plaintiffs. For reasons unclear to the court Cleeve has been placed in liquidation. It seems that after the death of the deceased there was a dispute over the company that led the plaintiffs together with other family members to retain their present solicitors to advise upon the management of Cleeve. The involvement of the solicitors led in turn to ongoing discussions between those solicitors and the estate solicitors regarding the future of Cleeve. There were disputes over the restructuring of Cleeve and the release of the deceased and members of the Morison side of the family from personal loans owed to Cleeve. So far as can be gleaned from the affidavits filed on the present application the defendants have interests in Cleeve of considerable value. The shares in Cleeve are held generally on a ratio of 20% by the estate of the deceased and 40% by each of the family members of the Leahy side and the Morison side. In the course of argument it was submitted that the value of the Leahy side in Cleeve was in the vicinity of $1.4M and this amount stood unchallenged by the plaintiffs.

32. The real estate of the deceased consists of a property known as the Selwyn Court property. The property is registered in the name of the deceased. The first plaintiff alleges that the property was purchased by the deceased and his wife for the first plaintiff to provide a home for her and her children and that the purchase moneys consisted of $100,000 being a gift from the deceased and his wife to the first plaintiff. Accordingly, although the Selwyn Court property is nominated as forming part of the estate of the deceased it is subject to a claim by the first plaintiff of an interest in that property.

35. Broadly speaking, the grandchildren of the deceased from the Leahy side, the plaintiffs, believe that both during his lifetime and in the will of the deceased, the deceased favoured the grandchildren of the Morison side over them. As a consequence, the plaintiffs wish to apply under s.91 of the Administration and Probate Act (1958) for provision to be made for them from the estate of the deceased.

38. Section 91 of the Act was amended by the Wills Act 1997. Prior to the amendment, the right to bring a testator's before the family maintenance claim was confined to the widow, widower or children of a deceased (a widow included a former wife who was entitled to receive alimony or maintenance from the deceased). The former s.91 provided, as follows:

"91. Maintenance and support of widow etc. Notwithstanding anything in this Act to the contrary where after the commencement of the Administration and Probate (Family Provision) Act 1962 any person (hereafter in this Part called 'the deceased') dies, and the distribution of his estate effected by his will (if any), or by the operation of the provisions of Division 6 Part I of this Act or both by his will and the operation of the said provisions is such as not to make adequate provision for the proper maintenance and support of the deceased's widow widower or children the Court may, on application by or on behalf of the said widow widower or children, order that such provision as the Court thinks fit shall be made out of the estate of the deceased for such widow widower or children. For the purposes of this section 'widow' includes any former wife of the deceased who was at the date of his death in receipt of or entitled to receive payments of alimony or maintenance whether pursuant to an order of any court or otherwise."

42. In order to make out a claim under the former provision an applicant, therefore, was required to satisfy the court that the will of a deceased did not make adequate provision for the proper maintenance and support of the applicant. No criteria were prescribed in the statute as to the circumstances that did or did not constitute "adequate provision for proper maintenance and support". The interpretation and application of the section has been the subject of much consideration over the years by the High Court and this court (see Re Buckland deceased [1966] VicRp 58; (1966) VR 404; Hughes v National Trustees Executors and Agency Co of Australasia Limited [1979] HCA 2; (1979) 143 CLR 134; Anderson v Teboneras [1990] VicRp 47; (1990) VR 527; Singer v Berghouse (No. 2) (1994) 181 CLR 213; Grey v Harrison (1997) 2 VR 359). In summary, the approach of the courts, to state in the briefest terms, has been to require an applicant to demonstrate sufficient and appropriate need and a moral obligation on the part of the deceased to make adequate provision for the applicant.

45. The new s.91 of the Administration and Probate Act changed the nature of testators' family maintenance claims in two significant ways. Firstly, it allowed claims to be made by any person who qualified as "a person for whom the deceased had responsibility to make provision". Accordingly, persons such as the plaintiffs were able to make a claim whereas previously grandchildren did not fall within the specified classes in the former section. The second significant change was the inclusion of criteria to be applied by the court in determining an application.

48. The new s.91 came into operation on 20 July 1998, that is, shortly before the death of the deceased and provides:

"91. Power of the Court to make maintenance order (1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. (2) The Court must not make an order under sub-section (1) in favour of a person unless - (a) that person has applied for the order; or (b) another person has applied for the order on behalf of that person. (3) The Court must not make an order under sub-section (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by - (a) his or her will (if any); or (b) the operation of the provisions of Part I, Division 6; or (c) both the will and the operation of the provisions - does not make adequate provision for the proper maintenance and support of the person. (4) The Court in determining - (a) whether or not the deceased had responsibility to make provision for a person; and (b) whether or not the distribution of the estate of the deceased person as effected by - (i) the deceased's will; or (ii) the operation of the provisions of Part I, Division 6; or (iii) both the will and the operation of the provisions - makes adequate provision for the proper maintenance and support of the person; and (c) the amount of provision (if any) which the Court may order for the person; and (d) any other matter related to an application for an order under sub-section (1) - must have regard to - (e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship; (f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate; (g) the size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject; (h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future; (i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate; (j) the age of the applicant; (k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased; (l) any benefits previously given by the deceased person to any applicant or to any beneficiary; (m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility; (n) the liability of any other person to maintain the applicant; (o) the character and conduct of the applicant or any other person; (p) any other matter the Court considers relevant."

52. Section 99 of the Act remained unamended notwithstanding the introduction of the new s.91. Section 99 provides that an application under Part IV of the Act must be commenced within six months of the date after the grant of probate. In the present matter the plaintiffs were required to commence their application before 1 June 1999. They failed to do so and issued their application one month out of time on 1 July 1999 by originating motion. The relief sought by the plaintiffs was an extension of time under s.99 and for provision under s.91. Section 91 provides that an extension of time may be granted after the parties affected are heard and before the final distribution of the estate occurs.

55. In the administration of the deceased's estate there has been partial distribution by the defendants as executors. The distribution is the subject of criticism by the plaintiffs. However, the sum of $1,509,767.40 at least remains as undistributed residuary estate.

58. The relevant tests laid down for the exercise of the grant of an extension of time by the authorities are:

(1) The extension will be granted where the applicant had instructed solicitors in respect of a claim but no application had been made within time due to the inaction of the applicant's solicitor (see Brown v Holt [1961] VicRp 69; (1961) VR 435, 437-8).

(2) An extension will be granted where bona fide negotiations to settle the applicant's claim for provision extended beyond the time limit (see Amos v Amos [1966] VicRp 61; (1966) VR 442, 445).

(3) The court will more readily grant an extension of time where the estate is substantial (see White v Fraser & Ors, unreported judgment of Murphy J delivered 26 April 1979).

(4) Where the delay in bringing the application is short the court is more disposed to granting an extension (see Re Cruskett deceased [1947] VicLawRp 28; (1947) VLR 212).

(5) The courts will not grant an extension where there has been a lack of expedition on the part of the applicant and where the applicant knew of the time limitation (see Re Barrot (deceased) [1953] VicLawRp 45; (1953) VLR 308, 314; Amos v Amos, supra, 445-6; Re Walker (deceased) [1967] VicRp 116; (1967) VR 890, 891).

(6) An extension will be granted where the circumstances are such that it would be unjust to penalise an applicant for being out of time (see Re Guskett deceased, 214).

(7) There must be circumstances that would lead the court to consider that the extension ought be granted (see Re Barrot, supra, 312; in Re Salmon (1981) Ch D 167, 174).

(8) If it is improbable that the application will succeed an extension of time will not be granted (see In Re Hodgson [1955] VicLawRp 77; (1955) VLR 481, 485; Brown v Holt, supra, 443; Re Walker [1967] VicRp 116; (1967) VR 890, 892).

(9) An extension of time will not be granted where there has been final distribution (see Easterbrook v Young [1977] HCA 16; (1977) 136 CLR 308; Re Lago deceased [1984] VicRp 62; (1984) VR 706) or where the distribution has preceded so far as to render an extension of time in any event unjust or undesirable.

(10) An extension of time will not be granted if to do so will cause injustice to the existing beneficiaries (s.99; also Coffey v Bennett [1961] VicRp 41; (1961) VR 264, 270).

The reasons for the delay

64. The plaintiffs' solicitor has deposed that after the death of the deceased he was actively involved in advising the plaintiffs and the Leahy side generally on the reconstruction of Cleeve, including litigation with respect to the interests of Rosemary Ann Leahy, the removal or release of personal loans owed to Cleeve, the testamentary capacity of the deceased in relation to the will and, also, a possible testators' family maintenance claim by the plaintiffs. On 16 December 1998 the plaintiffs' solicitor wrote to the estate solicitors advising among other matters:

"On the assumption that Mr Trescowthick did have testamentary capacity at the time the will was executed (which issue is still disputed by our clients) we have instructions to make claim on behalf of the grandchildren of Rosemary and David Leahy against the estate for the provision of a proper sum for their maintenance, education and support. In this regard it should not be presumed that their claim will be no more than that which has been provided for by Mr Trescowthick for the Morison and Strong great-grandchildren in his will."

68. The letter went on to advise, also, that the claim for "proper maintenance, education and support ... will not be less than $550,000". The solicitors raised, further, the concern of their clients with respect to the distribution of the assets of the estate. The solicitors urged that the residue of the estate should not be distributed until all claims made on behalf of the solicitors were dealt with. Accordingly, the solicitors sought an undertaking from the executors that, save for the distribution of the specific bequests, no assets of the estate be distributed until the claims outlined by the solicitors were resolved. The solicitors stated that unless such undertaking was given by 17 December 1998 appropriate injunctive relief would be sought.

71. Thereafter discussions occurred between the solicitors for the respective parties in relation to the matters raised in the letter dated 16 December 1998 forwarded by the solicitors for the plaintiffs. On 25 February 1999 the solicitors for the estate wrote to the plaintiffs' solicitors rejecting all the claims made in the letter of 16 December 1998. In particular, the estate solicitors advised, among other matters:

"The executors do not believe that your client's children have any grounds for a claim against the Estate under Part IV of the Administration and Probate Act ".

75. Significantly, the estate solicitors finalised the letter of 25 February 1999 stating:

"To summarise, the executors intend to uphold the terms of the will, they refute the suggestions made by your client in relation to the deceased's testamentary capacity and they deny the claims submitted by you".

79. The plaintiffs' solicitor has deposed that the letter of 25 February 1999 from the estate solicitors caused him to form the view that Sarah Mary Leahy was required to lodge proof of her claim for an interest in the Selwyn Court property and that the executors would not take any steps in relation to Cleeve until the liquidator of the company made a decision with respect to proofs of debt that Rosemary Leahy was to lodge with the liquidator. As a consequence, the plaintiffs' solicitor deposed that "in those circumstances it was not sensible to continue with preparing applications under s.91 of the Administration and Probate Act". Rather, he formed the view that the legal issues relating to Cleeve, the claim with respect to the Selwyn Court property and further investigation of the testamentary capacity of the deceased were matters of priority. It appears from the correspondence after 25 February 1999 that the executors with the assistance of their solicitors set about the distribution of the jewellery and artwork bequests under the will. It appears, also, that there was a dispute between the solicitors concerning the provision of medical reports by the doctor for the deceased and at one point the estate solicitors were seeking instructions in relation to acceptance of service of process, presumably with respect to a challenge to the will on the grounds of testamentary capacity. On 7 May 1999 the liquidator for Cleeve informed the plaintiffs' solicitor that his investigations did not reveal any adverse treatment of shareholder loan accounts or shares issued and that he intended to call for proofs of debt and pay a dividend. On 4 June 1999 the liquidator wrote to Rosemary Leahy directly inviting formal proof of debt or claim with respect to Cleeeve.

82. The plaintiffs' solicitor deposed that as at early May 1999 he was "not then aware of the time limit for bringing TFM proceedings, and in particular that the six month period had expired at the end of April". It is, to say the least, surprising that solicitors acting for the plaintiffs in relation to the estate having been advised by the estate solicitors by the letter dated 25 February 1999 that the claim for testators' family maintenance was denied should not have been aware of the time limit for bringing such a claim. It is, further surprising, that the solicitor for the plaintiffs laboured under the mistaken belief upon swearing his affidavit of 22 September 1999 that the six month limitation period under s.99 of the Administration and Probate Act expired at the end of April. It appears that the solicitor confused the calculation of six months from the date of death of the deceased with the period specified in s.99, namely, six months from the date of the grant of probate.

85. In his affidavit, the solicitor for the plaintiffs deposed that counsel was briefed to finalise various draft statements of claim. It is not apparent from the affidavit of the solicitor as to whether the statements of claim were concerned with claims with respect to Cleeve, a challenge to the testamentary capacity of the deceased or a testators' family maintenance claim. In any event, the solicitor deposed that due to delays on the part of counsel such statements of claim were not returned to him until 14 July 1999. The solicitor has deposed that the six month time limit for commencing proceedings under s.91 of the Act was "simply overlooked by my office". He has explained that he was working on the assumption that the estate could not be finalised until the affairs concerning Cleeve had been finalised and, further, he believed that all parties had accepted that such finalisation was necessary before other matters concerning the estate of the deceased could be addressed. The plaintiffs' solicitor further deposed that as a result of advice by counsel it was considered "prudent" to issue the originating motion seeking an extension of time under s.99 and provision under s.91 of the Administration and Probate Act. He deposed that this course was adopted "notwithstanding the circumstance that there may have been some arrangement not to issue these proceedings at this stage".

88. In my view the circumstances disclosed in the affidavit of the plaintiffs' solicitor reveals that the testators' maintenance claim on behalf of the plaintiffs was not issued within time due to the ignorance of that solicitor of the time limit and genuine error on his part. I have considered very carefully the correspondence exhibited to his affidavit and consider that at no time was anything said or indicated by the solicitors for the estate that would lead a competent solicitor to form the view that there was some arrangement between the solicitors that the matters concerning the Cleeve dispute would be resolved before other claims against the estate were addressed, including any testators' family maintenance claims. Indeed, from the time of receipt of the letter from the estate solicitors dated 25 February 1999 the plaintiffs' solicitors ought have been on notice that their clients' testator family maintenance claims were disputed and ought have been issued within time. In my view the circumstances described by the plaintiffs' solicitor and relied upon by him to explain his apparent confusion constitute no more than a smokescreen in an endeavour to explain his lack of knowledge of the statutory time limit and his mistake.

91. Nevertheless, turning to the proper principles to be applied in the exercise of the discretion, the fault on the part of the solicitor of a potential applicant is not necessarily fatal to an application for extension of time. In Brown v Holt, supra, Pape J considered an application for an extension of time by four adult daughters of the deceased. Their solicitor failed to lodge a claim under s.91 of the Administration and Probate Act in time allegedly due to pressure of work. The solicitor deposed that he overlooked the fact that the six month period prescribed by the Act had elapsed. Pape J observed (at 437-438) in reliance upon a judgment of the Supreme Court of South Australia in Re Traeger (1948) SASR 248 that it will be appropriate to grant an extension in such circumstances because it would be unjust to penalise an applicant where there is a short delay and when such delay has been caused by the oversight of a solicitor. The principle to be extracted from the judgments in both Brown v Holt and Re Traeger is that if the court considers that an injustice will be done if the extension is not granted then the oversight of an applicant's solicitor should be excused. I observe that in Re Traeger the applicant was a widow of the deceased and in Brown v Holt the applicants were the children of the deceased. In the present matter, the applicants are the grandchildren of the deceased. I adopt the approach applied in both Brown v Holt and Re Traeger in that before determining whether or not to excuse the plaintiffs' solicitor for his error and oversight I must be satisfied that it would be "unjust" to penalise the plaintiffs by refusing their application for an extension of time. It follows that I must consider the basis of the claims the plaintiffs would bring if an extension was granted.

96. It is apparent from the affidavits filed on behalf of both the plaintiffs and the defendants that the deceased and his wife during their lifetimes were extremely generous towards their children and grandchildren. It is apparent, also, that on the whole the deceased and his wife purported to maintain a close relationship with as many members of their family as they could. A number of the plaintiffs and the defendants have deposed to happy childhood and youthful experiences with their grandparents, in particular, those described by the first plaintiff. With respect to the generosity of the deceased and his wife it appears that substantial amounts of money were given from time to time to the grandchildren, for example, for the purposes of paying school fees, the purchase of motor vehicles and the purchase of matrimonial homes. It is not necessary for me to determine the specific extent of the generosity of the deceased towards his grandchildren. However, the observation can be made on the basis of the affidavits filed on behalf of both the plaintiffs and the defendants that the deceased and his wife during their lifetimes may have favoured the Morison side more so than the Leahy side. There may well have been reasons for this. It has been postulated in the affidavits that the deceased and his wife disliked some of the spouses of their grandchildren and regarded some grandchildren as more of a "favourite" than other grandchildren. All of these matters are irrelevant. It has oft been stated by the courts that the purpose of the discretion vested in the court under s.91 (in its previous form) and I consider it to still be the appropriate principle that the courts' role is not to re-write the will of a deceased to achieve a fairer distribution of the assets of the deceased. Rather, the role of the courts is to ensure that a claim brought under s.91 of the Act meets the criteria laid out therein. It is necessary, therefore, for me to consider each of the potential claims of the plaintiffs.

101. The second plaintiff is aged 37, married with three children. Since the age of five he has suffered from Hopkins syndrome and as a result wears callipers on his right leg. He has also suffered from chronic asthma all his life and is classified as being in the top 2% of asthma sufferers. He was born with glaucoma and has 10% vision in his left eye. His medical conditions deprived him of a normal active childhood. He was educated at Melbourne Grammar and his parents paid all fees. He had a warm and loving relationship with his grandparents. On his 18th birthday he was given a motor vehicle worth approximately $8,000. He studied at university and his grandparents contributed to his university costs for three years. In addition, his grandparents helped him purchase a further motor vehicle worth about $20,000. On his marriage he received a gift of $100,000 towards the purchase of a matrimonial home.

104. The second plaintiff is employed as an operations manager with a market research company. He suffers physical discomfort because of the condition of his leg and believes he will suffer from early onset of arthritis and other degenerative diseases. I note no medical evidence is adduced to support this prognosis.

107. His assets consist of the matrimonial home worth over $300,000 but subject to a mortgage of approximately $47,000, shares worth approximately $10,000 and a debt of $20,000. His annual income is appropriate $42,000 after tax. His assets include an interest in Cleeve although he has deposed that he does not know the worth of that interest. For the reasons already stated it appears that the interest of the second plaintiff in Cleeve may be substantial. His mother pays the school fees for one child. He believes that private school education of his children is in accordance with the wishes of his grandfather, the deceased.

112. The fourth plaintiff is 36 and appears to be unmarried and without children. He lives in California in the United States and works as an artist in the film industry. He deposed on affidavit that one of the major considerations for him in deciding to move away from his family and live overseas was "the constant nagging of my grandparents over an extensive period of time". He deposed, also, that his grandparents from an early age "were simply intolerable to me. They were manipulative and sought to control every aspect of my life". The affidavit of the fourth plaintiff reveals that he did not enjoy the generosity of his grandparents as did his siblings and cousins. The whole tenor of his affidavit was one of anger and envy at the perceived favourable treatment of the Morison side by the deceased and his wife during their lifetimes. The fourth plaintiff has no "major" assets, however, such assets as he has are not described. Further, he does not depose as to his level of income. Further, the fourth plaintiff does not depose as to his interest in Cleeve and for the reasons already stated it can be reasonably anticipated that such interest will be substantial.

117. The first plaintiff is aged 34, divorced with two children aged seven and five. She has described a happy and loving relationship during her childhood, youth and adulthood with the deceased and his wife. She has deposed that her grandparents were very supportive at all times throughout her life including times of crisis such as her divorce from her husband. She was educated at St Catherine's and Merton Hall schools and her school fees were paid by her parents. On her 18th birthday having completed her secondary education her grandparents gave her a gift of $1,000. Upon her marriage the deceased and his wife gave the first plaintiff $100,000 towards the purchase of a matrimonial home. After the dissolution of the marriage the first plaintiff was paid $100,000 as part of the divorce settlement and which she returned to her grandparents. At the behest of the deceased and his wife the first plaintiff deposes that the $100,000 was applied towards the purchase of the Selwyn Court property. She believes, also, that part of the legal costs of her divorce were paid by the deceased and his wife.

120. The first plaintiff holds a Doctorate of Philosophy and is employed in a temporary teaching position earning $375 net per week. She receives, also, maintenance from her ex-husband in the sum of $970 per fortnight. The first plaintiff has deposed that she does not own "any significant assets". In an affidavit filed by the second defendant he has deposed that the first plaintiff owns a luxury motor vehicle and travels overseas to exotic destinations from time to time. These matters were not rebutted by the first plaintiff. In addition, the first plaintiff owes approximately $34,000 to members of her family for various debts. She relies upon her parents to pay for the fees and associated educational expenses of her two children. The first plaintiff does not depose as to her interest in Cleeve. However, on the basis of the information before the court it can be presumed that the first plaintiff has some entitlement to a substantial amount from Cleeve. In addition, the first plaintiff has deposed that one of her children requires regular medical attention but that she cannot afford the fees to ensure the child is provided with such attention as regularly as she would like.

125. The third plaintiff is aged 32 and is a legally qualified medical practitioner. He appears to be unmarried and without children. He graduated in medicine in 1993 and prior to the death of his grandparents provided medical assistance and support to them. Similar to his siblings, the third plaintiff enjoyed a warm and loving relationship with his grandparents. He attended Melbourne Grammar and his school fees were paid for by his parents. During his tertiary education his grandmother paid him $500 per month during the period from 1990-1993. He received other gifts from the deceased of $1,000 on two occasions and $10,000 on another occasion to buy a car. He was also given $5,000 by his grandparents on his 21st birthday. The third plaintiff does not depose as to the details of his income or assets save that he states that he does not own a house, has few savings and has few "other significant assets". For the reasons already stated it can be assumed that the third plaintiff has an interest in Cleeve of a substantial nature.

The merits of theh plaintiffs' potential claims

130. The new s.91 so far as I can ascertain is untested in this court. Whereas previously an applicant was required to demonstrate sufficient and appropriate need and moral obligation the new provision sets out factors that the court must have regard to in determining whether the deceased had responsibility to make provision, whether or not the distribution of the estate makes adequate provision for the applicant, the amount of provision and any other matter related to the proper maintenance and support of the applicant. There are 12 factors the court must consider in determining the adequacy of provision and the responsibility of the deceased for the applicant.

133. Firstly, family or other relationships with the deceased. It is abundantly clear that each of the plaintiffs were grandchildren of the deceased and had a warm and loving relationship with the deceased with the exception of the second plaintiff. On his own admission, the second plaintiff chose to have as little to do with the deceased as possible. Secondly, a court must consider any obligations or responsibilities of the deceased to the applicant. On the basis of the evidence before me there is no evidence of any obligation or responsibility on the part of the deceased to the plaintiffs. The deceased and before him his wife were certainly very generous grandparents to most of their grandchildren. However, the grandparents had no direct parental or grandparental duty to provide for any of their grandchildren, including each of the plaintiffs. The fact that the deceased and his wife during their lifetime made generous gifts towards some of the grandchildren, including the plaintiffs and, in particular, made generous contributions towards the education of some of the grandchildren cannot in my view be construed or characterised as an obligation or responsibility on the part of the deceased to any of the plaintiffs. Next, a court must consider the size and nature of the estate. Clearly it is not in dispute between the parties that the size of the estate of the deceased is sufficient to cope with any redistribution of the estate following on from any testators' family maintenance claim.

136. Fourthly, a court must consider the financial resources and needs of an applicant. On the basis of the matters deposed to in the affidavits I do not consider that the plaintiffs have demonstrated a level of financial resources or financial need such as to make out an arguable case. The fact that the estate is reasonably large and the fact that the deceased was generous to the plaintiffs during his lifetime is not relevant. Further, the fact that the deceased may have been more generous during his lifetime and in his will towards the Morison of the family is again irrelevant. When an applicant makes an application for an extension of time under s.99 he or she seeks an indulgence from the court. It behoves such an applicant to demonstrate at least an arguable case under the various criteria set out in s.91(4)(e)-(p) of the Administration and Probate Act. So far as financial resources and financial needs are concerned, in my view the plaintiffs have failed to demonstrate that they have at least an arguable case for the purposes of bringing an application under s.91 if an extension of time is granted under s.99 of the Act.

139. The fifth factor to be considered by a court is whether an applicant has any physical, mental or intellectual disability. With the exception of the second plaintiff, none of the plaintiffs have brought forward any evidence to demonstrate such disability. So far as the second plaintiff is concerned it is unchallenged that he has suffered some physical disabilities during his childhood and into his adulthood. However, on the basis of the evidence before me there is no evidence to demonstrate restriction on acquiring financial resources and financial need arising from his physical difficulties. In any event, on the basis of the affidavit of the second plaintiff it is apparent that the deceased during his lifetime did not make financial contribution towards supporting the second plaintiff with respect to any of his disabilities. In my view the second plaintiff has not demonstrated any responsibility with respect to the second plaintiff's disability.

142. Next, a court must take account of the age of an applicant. Each of the plaintiffs is presently aged in his or her thirties. As such and taking account of the matters deposed to in their affidavits concerning their present state or position in their lives they do not suffer any disability arising from young age or old age. In my view the age of the applicants is not a factor that weighs in support of any possible application they might make under s.91 of the Act.

145. The seventh factor to be taken into account is whether there was any contribution by an applicant to building up the estate or the welfare of the deceased. Certainly the plaintiffs with the exception of the second plaintiff sought to support the deceased during his latter years. In particular, such observation would apply to the fourth plaintiff who provided not only social but also medical support to his grandparents. On no view on any of the affidavits could it be said that the plaintiffs made any contribution to the estate of the deceased. So far as the welfare of the deceased is concerned the most that can be said with respect to the plaintiffs is that they had a warm and loving relationship with the deceased as would exist between a grandparent and a grandchild. There is no evidence on the basis of the affidavits filed by the plaintiffs to demonstrate that any of them contributed to the welfare of the deceased to the extent that such contribution would weigh in their favour in the event that an application was allowed to proceed under s.91 of the Act. The eighth factor to be considered by a court would be any benefits previously given by the deceased to an applicant. As already stated the deceased and his wife during their lifetimes were very generous towards their children and grandchildren some more so than others. Substantial contributions were made to matrimonial homes, cars were purchased and monetary benefits were given and, in some instances, educational support was provided. In my view the nature of benefit to be taken into account for the purposes of s.91(4)(l) of the Act would be a benefit in the nature such as to give rise to a dependency by an applicant upon the deceased. Clearly there is no evidence of any dependency by any of the plaintiffs upon the deceased. Rather, the basis of their potential claims is that they have not been treated as fairly as their cousins on the Morison side.

148. The next factor to be considered is whether an applicant was being maintained by the deceased before the death of the deceased, either wholly or partly. On the basis of the affidavits filed on behalf of the defendants such circumstances do not arise. In a similar vein, a court would consider when determining an application under s.91 the liability of any other person to maintain an applicant. On the basis of the affidavits filed on behalf of the plaintiffs none of them are maintained by any other person save that from time to time generous contributions have been made by their parents.

151. The eleventh factor that a court would consider in determining an application under s.91 is the character and conduct of the applicant. So far as such criterion is concerned, with the exception of the second defendant, there is no doubt that each of the plaintiffs has been a loving and supporting grandchild of the deceased. However, in my view s.91(4)(o) of the Act in referring to character and conduct of an applicant contemplates either bad character and conduct to be factored into the exercise of the discretion or, alternatively, such good and noble conduct as would constitute an injustice if such factor were not taken into account. In my view the character and conduct of the plaintiffs with respect to the deceased was such that there was nothing so out of the ordinary or distinctive about such character or conduct such as to constitute a factor to be taken into account in determining that provision should be made for any of the plaintiffs. So far as the second plaintiff is concerned I note that his conduct towards the deceased has been such that essentially he wanted nothing to do with the deceased and it seems he achieved his desire.

154. The last factor to be taken into account pursuant to the criteria laid down by s.91 of the Act is "any other matter the court considers relevant". In my view a matter that a court would consider as relevant upon determining an application by the plaintiffs under s.91 of the Act is their interest under Cleeve. It was undisputed before me that the plaintiffs through the interests of the Leahy side under Cleeve stand to gain individually substantial amounts of money. I consider that on such an application under s.91 the court would place considerable weight upon that fact and against the plaintiffs as having need and requiring further provision under the will.

157. The aforesaid analysis addresses the criteria contained in s.91(4)(e) of the Administration and Probate Act. It follows from the analysis that none of the criteria set out therein operate in favour of the plaintiffs on the basis of their affidavits save that each of them had a relationship with the deceased in the nature of grandfather and grandchild and the fact that the size of the estate is large. On the basis of such analysis, therefore, I cannot be satisfied that the circumstances of the plaintiffs are such that it would be unjust to penalise them for failing to bring an application within time. In the words of Herring CJ in Re Guskett, supra at 214:

"Every case will have to be dealt with on its own facts, but it would seem necessary for the applicant to satisfy the Court that the circumstances are such as to make it unjust for him to be penalised for being out of time."

161. Further, I cannot be satisfied that there are circumstances that would lead the court to consider that the extension ought be granted (see Re Barrett, supra, 312; in Re Salmon, supra 174). In addition, for the reasons already stated I cannot be satisfied that there were bona fide negotiations in place between the plaintiffs' solicitors and the solicitors for the estate such as to justify an extension of time. Indeed, I consider that an analysis of the correspondence between the solicitors clearly demonstrates that at no time did the estate solicitors say or do anything to give rise to an expectation on the part of the plaintiffs' solicitors that such an extension of time would be granted. (See Amos v Amos, supra 445). Rather, the expectation as such was of the making of the plaintiffs' solicitor himself.

164. In light of the circumstances I have described with respect to the merit of each of the plaintiffs' potential claim I do not consider it would be unjust to deny the extension sought. Accordingly, I do not consider that the oversight and mistake of the plaintiffs' solicitors should be excused as occurred in Brown v Holt. Indeed, in taking account of the course of correspondence between the plaintiffs' solicitors and the estate solicitors it is apparent that the plaintiffs knew or at least ought to have known that a statute bar was imminent. So much is acknowledged by the plaintiffs' solicitor in his affidavit notwithstanding that the date was in fact later in time than he believed. In my view an assessment of the conduct of the plaintiffs with respect to potential litigation concerning the estate of the deceased demonstrates a lack of expedition on their part through their solicitors where the plaintiffs knew or ought to have known through their solicitors of the statute bar that applied (see Re Barrett, supra, 314; Amos v Amos, supra 445-6; Re Walker (deceased), supra 891).

167. Furthermore, on the basis of the analysis I have made of the merits of the plaintiffs' potential claim under s.91 I am of the view that it is improbable that their claims would succeed and accordingly consider that an extension of time should not be granted (see Re Hodgson, 485; Brown v Holt 443; Re Walker (deceased) 892).

The extent of distribution of the estate and potential prejudice to the existing beneficiaries

172. In this matter there has not been final distribution but substantial distribution. Bank statements were produced to the court with respect to the estate of the deceased that purported to demonstrate that on 3 and 4 December 1998 each of the defendants in their capacities as executor of the estate of the deceased drew their executors' commission of $30,000 as directed by the deceased. Such drawing of funds was criticised by the plaintiffs as demonstrating undue haste if not bad faith on the part of the executors. However, probate was granted two to three days prior to the drawing of the funds and in accordance with the terms of the will, the defendants having proved the will of the deceased were entitled to draw such funds in lieu of commissions notwithstanding that it was done much earlier than would usually be the case with respect to the administration of a deceased estate. Nevertheless, in light of the provision contained in the will of the deceased I do not draw any adverse inference from the drawing of $30,000 each by the defendants. Furthermore, I consider that the drawing of the said funds formed part of the distribution of the estate.

175. Further bank statements were put before the court to demonstrate that each of the sums provided under the will of the deceased to create the educational trusts for the children of the defendants and Joseph Trescowthick were drawn on 2 June 1999 that is, immediately after the expiration of the limitation period for the bringing of any testators' family maintenance claim pursuant to s.99 of the Administration and Probate Act. Again the plaintiffs complain that as the defendants had knowledge of their potential claim against the estate arising from the letter of their solicitors of 16 December 1998 such distribution was made improperly and without bona fides. In my view, once the solicitors for the estate sent their letter of 25 February 1999 to the plaintiffs' solicitors the plaintiffs were on notice that their claim was rejected and it behoved them to bring any application under s.91 of the Act within time. In light of the fact that no application under s.91 had been issued or served upon the expiration of the limitation period the defendants in their capacities as executors were entitled to distribute the moneys for the purposes of the educational trust created by the will of the deceased. Indeed, it is highly arguable that if they had not done so they may have been subject to criticism of neglecting and wasting the estate of the deceased and acting in breach of their executorial duties. Furthermore, the defendants were entitled to make the distributions they did pursuant to s.99A of the Act.

178. Further complaint was made by the plaintiffs that the defendants had partially distributed the estate of the deceased by way of transferring shares that formed part of the residuary state of the deceased to Maureen Elaine Morison on 9 June 1999, again immediately after the expiration of the limitation period under s.99 of the Administration and Probate Act. For the reasons already expressed with respect to the educational trusts created under the will of the deceased I consider that the defendants as executors were entitled to transfer the shares as they did to Mrs Morison on 9 June 1999. Once again, I consider that if they had not done so they would be subject to complaint that they had failed to fulfil their executorial duties. It follows that I am satisfied that insofar as distribution has occurred with respect to the estate of the deceased such distribution has been made properly and lawfully on the basis of the evidence before me.

181. It is apparent from the affidavits filed on behalf of the plaintiffs in support of their application that if an extension of time was granted they would wish to challenge the distribution of the estate as it has occurred thus far. Such challenge, in my view, places the existing beneficiaries of the estate of the deceased in an untenable position and exposes them to a prejudice that they ought not be subjected to. In my view the defendants as executors were entitled to commence the distribution of the estate as they did in early June 1999. Once those distributions were made doubtlessly the existing beneficiaries under the will of the deceased commenced to enjoy the benefits derived from such distribution. In my view it is entirely inappropriate that the affairs and circumstances of the existing beneficiaries of the will of the deceased be exposed to the risk of challenge of improper distribution by the plaintiffs by way of an application under s.91 if an extension of time is granted under s.99 of the Act. It follows, therefore, that insofar as it is necessary for me to form a view on the matter I am satisfied that if an extension of time was granted as sought by the plaintiffs such extension would potentially give rise to a prejudice to the existing beneficiaries that has arisen because of the delay of the plaintiffs in bringing their application within time. Whilst it might be said that the extension of time could be granted to the plaintiffs but confined to the estate as undistributed at the time of the granting of any extension, nevertheless, the case of the plaintiffs was not put that way. The plaintiffs wish to seek provision from not only the residuary estate of the deceased but, also, that component of the estate consisting of the three educational trusts in favour of the children of the two defendants and Joseph Trescowthick. In my view the existing beneficiaries of the will and the potential beneficiaries of the trust should not be subject to the prejudice and uncertainty that would arise from the granting of an extension of time. Accordingly, insofar as it is necessary for me to do so I consider this matter provides a further basis upon which the application by the plaintiffs ought be refused.

184. It follows that for the reasons expressed the plaintiffs fail in their application for a grant of an extension of time under s.99 of the Administration and Probate Act and, accordingly, the proceeding will be dismissed.