Leahey v Trescowthick [1999] VSC 409

Leahey v Trescowthick [1999] VSC 409 - VSC 1999 case summary — Zoe

[20]

"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."

[24]

(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

[37]

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.

[64]

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.

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)