McLeod v Troy and Ors [2002] VSC 187

Supreme Court of Victoria|2002-05-23|Before: BEACH J

These are applications brought by two nieces of Josephine Catherine Carroll deceased pursuant to the provisions of s.99 of the Administration and Probate Act 1958 seeking extensions of time within which to make applications to the Court that adequate provision be made for their proper maintenance and support out of the estate of the deceased. The applications are opposed by the residuary beneficiaries of the estate of the deceased.

The deceased died on 27 May 2000. By her will dated 16 December 1999 the deceased appointed the applicants Andrea Jeanette Troy (Andree) and Pauline Michelle McLeod (Pauline) executors and trustees of her estate.

By her will the deceased left the sum of $5,000 to each of Andree and Pauline, the sum of $1,000 to two of her brothers Brian Patrick Pyers and Desmond Francis Pyers, and the residue of her estate equally to her nephews Robert Pyers, Peter Pyers and Mark Pyers and her other nieces Annette Mary Hill and Teresa Mary Smith.

Before her death the deceased told Andree (to whom the deceased in fact dictated her will) that she would give Andree and Pauline some money but that they were not beneficiaries because they were going to get their father's estate (see para. 31 of the affidavit of Andree sworn 3 December 2001).

The applicants' applications were filed in the Court on 4 December 2001 and 6 December 2001 respectively, those dates being approximately five months outside the six month period stipulated in s.99 of the Act.

For the applicants to succeed with their applications they must satisfy me that there was good reason for their failure to make the applications within the six month period and that they have an arguable case.

In their affidavits sworn respectively on 3 December and 5 December 2001 Andree and Pauline have stated that they were not aware of the possibility that they could seek further provisions from the estate of the deceased until a friend of Pauline suggested that they might be able to do so in late June 2001.

They then raised the matter with their then solicitor. He was unable to advise them as to their rights in that regard and referred them to counsel. I should add - not the counsel presently appearing for them.

On 25 July 2001 counsel provided written advise in the matter to the effect that the applicants had a point which was arguable, that application would need to be made for "leave to be granted to join issue under Part 4 of the Act" but did not refer to any urgency in making the application and offered no opinion as to the merits of the applicants' claim.

On or about 24 August 2001 the applicants consulted their present solicitor. Between that date and 20 September they provided their solicitor with material sought by him concerning their relationship with the deceased. On 20 September he recommended that they brief counsel. The applicants gave instructions for that to be done on 1 October, and although they had not then consulted their present counsel, on 11 October their new solicitor gave notice to the solicitor for the estate of their intention to make a claim.

On 4 and 6 December 2001 respectively the present originating motions were filed in the Court.

The applicants have also outlined in some detail the stress they were under between December 2000 and October 2001 because of the pressure brought to bear on them by the defendants and because of their then state of health. In that latter regard Andree suffered a miscarriage on 29 May 2001 which required hospitalisation, and Pauline underwent major surgery on 24 July 2001 which required her to be immobilised until late August.

The evidence of the applicants in relation to the issue of delay was not challenged by the defendants. There is no reason therefore why it should not be accepted.

In my opinion the applicants have provided a good and sufficient explanation for their failure to make their applications within the six month period and if they have arguable cases in the matter it is appropriate that they be given leave to do so. I turn then to that aspect of the application.

The applicants were the only nieces and nephews of the deceased living in Victoria. Throughout their lives they kept in constant contact with the deceased, visited her regularly with their families, and spoke to her often on the phone.

In early 1999 the deceased's health began to trouble her. In August 1999 she was hospitalised for 10 days. Thereafter the condition of the deceased's health deteriorated and ultimately she died on 27 May 2000.

The applicants have set out in great detail the care they took of the deceased over the last 18 months or so of her life and of the severe disruption it caused to their own lives. Save to note that on 16 December 1999 the deceased gave Andree her power of attorney I do not think any useful purpose will be served by setting out that detail in my reasons for judgment.

The only question I am required to determine at this time is whether the applicants' claims are arguable.

Accordingly I extend the time within which the applicants may make an application for relief under Part IV of the Administration and Probate Act 1958 to 1 January 2002.

As the applicants have been granted an indulgence by the Court I order that they pay the defendant's taxed costs of the application including any reserved costs.

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