Maxwell v Public Trustee

Supreme Court of NSW|2001-08-28

CITATION : Maxwell v Public Trustee [2001] NSWSC 764 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4731/2001 HEARING DATE(S) : 28/08/2001 JUDGMENT DATE : 28 August 2001

PARTIES : Marie Eleanora Maxwell v Public Trustee JUDGMENT OF : Master Macready at 1

COUNSEL : G. McVay for plaintiff M. Bridger for defendant SOLICITORS : Farmer Campbell Edmunds for plaintiff Hardman & Company for defendant CATCHWORDS : Family Provision. Application by four children. One commences proceedings in time and the others are joined as plaintiffs out of time. Held that the joinder did not operate to extend time under the Act. Insufficient explanation for late application by one plaintiff. Orders made in favour of three plaintiffs. DECISION : Paragraphs 27 - 29

1 - 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Stanley Victor Pisani who died on 30 July 1997 aged 84 years. The deceased was survived by his four children who are the plaintiffs in this action. He was also survived by his second wife Olive Pisani. The deceased's first wife died on 12 September 1999. Under his will, made on 1 November 1983, the deceased left the whole of his estate to his second wife, Olive Pisani. He provided that if she predeceased him the estate should go to his children equally. 2 The assets in the estate have been reduced to cash in the amount of $270,803.63. The costs of the plaintiffs are estimated at $24,593, those of the defendant at $22,000. This leaves the estate having the sum of $224,210, assuming some of the plaintiffs are successful. 3 I will deal with a some of the history of the family. Olive Pisani, the deceased's wife, was born on 14 June 1911. The deceased was born on 1 April 1913. The deceased first married in 1937. Marie Maxwell was born on 3 August 1937, Victor Pisani on 23 March 1940, Rosalie Childs on 5 May 1947 and Stephanie Griffith on 10 November 1948. In 1954 the deceased and his first wife separated and subsequently they divorced. In 1961 the deceased married his second wife Olive Hampton Hinds. The matrimonial home was purchased in 1962 and the will was dated 19 November 1983. At the date of death on 30 July 1997, the deceased's widow was living in the house at Tempe. By November she moved and lived with her brother as her dementia was progressing and she could not live alone. It was on 11 November 1997 that the first plaintiff commenced these proceedings. Also in November there is an application for the Guardianship Board and the deceased's widow went to the Hume Nursing Home at Greenacre. Orders were made in December 1997 which appointed the Protective Commissioner to manage her estate and the Public Guardian was appointed as her guardian for some twelve months. In December Mrs Pisani went to Willandra Nursing Home and she continued to reside there thereafter. A year later, in December 1998, the Guardianship Board determined that the widow was no longer in need of a guardian and Mrs Maxwell and her husband were made the persons responsible for her treatment. She continued to visit her on a fortnightly basis. 4 It was on 10 October 2000 that an order was made in these proceedings that the second, third and fourth plaintiffs be added as plaintiffs to the proceedings. That event occurred well outside the 18 months which is allowed for the making of the applications by those parties. There was a submission that in the circumstances of an order for joinder having been made, in fact the time that this application having been made was the time when the original summons was filed on 11 November 1997. Section 16(2) and (3) are in the following terms: "(2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow.

(3) The Court shall not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless sufficient cause is shown for the application not having been made within that period." 5 Of particular importance is the fact that in 16(2) the section refers to "that application". The matter in the section refers to applications and that follows on from what is provided in section 7 of the Act. That section is in these terms "Subject to section 9, on an application in relation to a deceased person in respect of whom administration has been granted, being an application made by or on behalf of a person in whose favour an order for provision out of the estate or notional estate of the deceased person has not previously been made, if the Court is satisfied that the person is an eligible person, it may order that such provision be made out of the estate or notional estate, or both, of the deceased person as, in the opinion of the Court, ought, having regard to the circumstances at the time the order is made, to be made for the maintenance, education or advancement in life of the eligible person." 6 A perusal of the section indicates that the application which is referred to is one which is in relation to a particular person. That is so because they have to be identified as one in whose favour an order has not earlier been made. They have to be one in respect of which the court is satisfied that they are an eligible person, and they have to be one in respect of which the court is satisfied there was insufficient provision. The application dealt with in the Act obviously contemplates the making of an assessment by the court of an application of a particular person. I do not think it is to the point that there are in the statutory rules procedures for giving notice. No doubt if notice is given to someone and they are out of time they can make their application and failure to be given notice might well be a good reason for extending the time. 7 Applications can be made in many ways and in this case by an order adding the plaintiffs to these proceedings. It also could have been done by the individual applicants filing their own proceedings. It seems to me that the application of the second, third and fourth plaintiffs were made on 10 October 2000 when they were joined as plaintiffs. Therefore those applications are out of time. The parties are agreed that in the event that I have held that the applications were made out of time the matter would be dealt with as an application for leave to make the application out of time. 8 There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett (deceased) (1947) VLR 211 the following was said: "It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. 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. As moreover he is seeking an indulgence he should apply promptly for an extension of time." 9 His Honour Young J has in several cases dealt with the principles governing application to extend time under this Act. In Massie v Laundry (unreported 7 February 1986) he indicated that the factors which one looks at include the following: 1. Is the reason for making a late claim sufficient? 2. Will the beneficiaries under the will be unacceptably prejudiced if the time were extended? 3. Has there been any unconscionable conduct on either side which would enter into the equation? 10 He also accepts apparently a view which was expressed by his Honour Needham J in Fancett v Ware (3 June 1986) that there is no purpose in extending the time with respect to a claim which must fail. In Phillips v Quinton (unreported 31 March 1988) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by his Honour Hodgson J in Basto v Basto (unreported 8 September 1989). 11 In De Winter v Johnston, a decision of the Court of Appeal on 23 August 1995 his Honour Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23: "In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the application for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."

12 His Honour Mr Justice Sheller considered that it was only necessary to show that the application was not bound to fail. His Honour Mr Justice Cole seems to have adopted the parties' approach of looking at the strength of the plaintiff's case. 13 Here in the present case it is quite clear that no beneficiary will be prejudiced if the estate has not been distributed and it has been got in by the defendants. There is also no unconscionable conduct on the part of any of the plaintiffs. The question that really needs to be dealt with is whether there is a sufficient explanation for the late application. 14 So far as the third plaintiff, Rosalie Childs, is concerned, she deals with the matter in paragraph 20 of her affidavit of 9 August 2000. She says that she did not seek any legal advice following the death of her father in relation to bringing a claim under the Family Provision Act and was not fully aware of her rights and the fact that a claim ought to be brought within 18 months of the date of death. She was reluctant because of her poor financial position to incur expenses. It seems that sometime earlier on in the year 2000 she went to see a solicitor. Her first affidavit was in August 2000, and there has been tendered in evidence correspondence setting out the claim by the plaintiff's solicitors to have the additional parties joined as plaintiffs. Ultimately by October that was resolved with their joinder. It seems to me that the absence of the knowledge of her rights as to the time limit was important. She no doubt knew that her sister was making an application and that knowledge was not linked in cross examination with any suggestion that she knew about time limits at that earlier time. Accordingly I am satisfied as to the explanation. 15 So far as the plaintiff Stephanie Griffith is concerned, she deals with the matter in paragraph 22 of her affidavit. She also makes it clear that she did not obtain advice and was not aware that the application had to be filed within 18 months. She also had limited funds available for her to bring an application. It is not quite clear when she decided to make the application but given the solicitor's evidence about him then suggesting to the first plaintiff that the others consider commencing proceedings, it is likely that she saw the solicitor at about the same time as her sister. This might also flow from the date of the affidavit. I am satisfied that there is a sufficient explanation. 16 So far as the second plaintiff, Victor Pisani, is concerned, he does not deal in his affidavit with the reason why he did not make the application within time. He conceded in cross examination that he was told the period of time within which he had to make the application. In fact he had seen the solicitor a few days after the date of death. There is evidence from the solicitor himself that he gave advice to Victor about bringing proceedings in August 1997. However the evidence is thereafter silent and there is no explanation offered as to why the application was not made. Probably it may be because it was not until he was contacted when the solicitor suggested the matters be raised again in 2000 and then decided to join the proceedings with his two sisters. However, in the absence of an explanation, the only conclusion the court can make is that he was aware of his rights and decided not to bring his own application. It is unfortunate but that appears to be the situation and accordingly I am not satisfied that there is proper explanation of his failure to bring proceedings within time. 17 It is necessary of course to see whether the claims of the two sisters might have prospects of success. Accordingly I will turn to that aspect. The High Court, a little while ago, in Singer v Berghouse (1994) 181 CLR 201 at 208 had the following to say about the process which should be followed by the court in making its decision: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

18 It is necessary to consider the position of the three relevant plaintiffs. The first plaintiff, Marie Maxwell, is married. She does not appear to have dependents. She receives the age pension of $169.20 per week and she and her husband also have an allocated pension which they purchased with their savings, which was not insubstantial. This brings her half share of that pension to $88 per week. After allowing for her expenses she has an income over and above her expenses of about $110 per week. She and her husband own a house worth $300,000 and they have savings of about $24,000. She and her husband do not have a car. 19 The evidence discloses that the first plaintiff contributed to the well being of the deceased because she was the one who looked after the children after the deceased and his first wife separated. This was for all of the children from 1950 to 1954, and thereafter for two of the younger children until 1959. She also appeared to have a good interaction with the deceased's second wife after he remarried. This contribution was no doubt quite an important contribution to the deceased at the time. 20 It is necessary of course to see how the plaintiff has been left without adequate and provision for her maintenance, education or advancement in life. Her husband has relatives in Scotland and they have not been able to go to Scotland since 1974. The cost of visiting would be in the order of some $20,000. She also needs to replace the old blinds in her house at the cost of some $1,200. Clearly, I think, that she has demonstrated her needs and I will return to this later. 21 So far as the third plaintiff, Rosalie Childs, is concerned, she is married. She does not have work and her husband is on a disability pension. Her pension is clearly minimal and she and her husband are just managing their expenses. They have a house worth $90,000 and a car on which there is still some $4,000 owing. The house is old and needs substantial repairs. The cost of the repairs is something in the order of $29,000. Although she was separated by distance, there is no reason to think that she did not have a good relationship with the deceased. 22 The fourth plaintiff is Stephanie Griffith. She is married. She does not have an income herself and is dependent upon her husband's income of $766 per week. That amount is used on expenses. Although they have a home worth $210,000, they have liabilities of $139,000. They have furniture and a car worth about $25,000, with no savings. Given their lifestyle it is probably very important for them to have a car and it is clear that the car needs replacing. This will probably cost about $28,000. They would like to make some changes to their furniture with a cost of little in excess of $4,000. 23 It is also necessary for the court to have regard to the position of others having a claim on the bounty of the deceased. In this case the only other person is the deceased widow, Olive Pisani. She is 90 years of age and is living in a nursing home. She is suffering from dementia and is also totally blind. She cannot live apart from in an institution such as the one which is now caring for her. She receives both an age pension and also a war pension from her husband. Over the period she has been in the nursing home, which is from 1998, her account, maintained by the Protective Commissioner who meets all her expenses and collects her income, has gone from some $350 up to a total of $46,133.99. Clearly there is a substantial sum there which she has and also, according to the evidence, her needs over the years have been such that she is able to save a substantial amount. Her fortnightly income appears to be in the order of $952. I have evidence as to her medical situation and that suggests that she is comfortable in her environment. The medical evidence seems to indicate that she should continue in that nursing home because that provides appropriate care. It does not suggest any additional care that might be necessary apart from some medication. There is also evidence from the Matron of the Willandra Nursing Home who has commented on her stay there. She has said that all the needs of Mrs Pisani were met and provided for by the home. There seems to be no suggestion that she will not be able to continue to have those services. She refers to that fact that Mrs Maxwell keeps visiting her fortnightly although she has no idea who she is. 24 In considering applications in respect of widows, the court has frequently talked of the need to make proper provisions for widows. The cases which are dealt with each refer to the need to provide for a home, a fund for contingencies and also appropriate income.

25 This was a relationship which was one in excess of 30 years duration and which, according to the evidence, was a happy relationship. In the present case however, it seems to me that the widow is adequately provided for by way of income and that she does have some reserves for contingencies. She has no other needs for housing other than what is provided in the nursing home. There is no evidence which suggests that she ought to be moved to some other place. Indeed, all the evidence seems to indicate that she should stay where she is happy and well looked after. 26 In the circumstances it seems that some modest legacies might be awarded to the plaintiffs without impinging on the capital that should be available to the widow. As I say, she already has $46,000. 27 In the circumstances it seems to me that there ought to be legacies for three of the plaintiffs and accordingly I order that there be a legacy in favour of Marie Eleonora Maxwell of $45,000, a legacy in favour of Rosalie Cheryl Childs of $40,000, and a legacy in favour of Stephanie Gai Griffith of $45,000. 28 I order that the costs of the first, third and fourth plaintiffs on a party party basis, be paid out of the estate of the deceased. I order that the defendant's costs on an indemnity basis be paid or retained out of the estate of the deceased. 29 I extend the time for the making of the applications of the third and fourth plaintiffs up to and including 10 October 2001. 30 I order that the exhibits be returned. oOo

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