Plaintiff v Defendant

1 This is an application by the plaintiff, Catherine Corbett, under s 99 of the Administration and Probate Act 1958 (Vic) ('Act') for an extension of time within which to make a claim under s 91 of the Act for further provision out of the deceased estate of Hugh McTeggart ('Estate').

2 Mr McTeggart died on 22 July 2009 aged approximately 80 years. Probate of his last will dated 31 July 2008 ('Will') was granted to State Trustees Limited ('State Trustees') on 21 September 2009. The main asset of the Estate is Mr McTeggart's family home at 3 Paterson Street, Abbotsford ('Abbotsford house'), which is unencumbered and valued at $600,000. Under the Will, the Estate was left in equal shares to Ms Corbett, who was a family friend and is now 59 years old, and to Stephanie Morgan, who was Mr McTeggart's next door neighbour and is now 37 years old.

3 Mr McTeggart was a widower and, according to Ms Corbett, did not have any children.[1]

4 Ms Corbett has relied on an affidavit sworn by her, an affidavit sworn by her daughter, Kelly, who is 38 years of age, and an affidavit sworn by her other daughter, Candice, who is 37 years of age. Ms Corbett and her daughters were not cross-examined. Their affidavits provide evidence of a close friendship between the McTeggart and Corbett families, which involved regular visits to the Abbotsford house until approximately 1984. Face-to-face contact became less regular after approximately 1984 and was replaced almost entirely by occasional telephone calls from the early 1990s. Ms Corbett and her daughters have always referred to Mr McTeggart as 'Uncle Hughie'.

5 State Trustees has opposed Ms Corbett's application and has relied on two affidavits of one of its estate representatives, Marianne Stokes, and an affidavit of Ms Morgan. Ms Stokes and Ms Morgan were not cross-examined.

6 After Mr McTeggart's death, there were numerous communications between State Trustees and Ms Corbett, including letters from State Trustees to Ms Corbett which stated that claims under the testator family maintenance provisions in Part IV of the Act must be made within six months after the grant of probate.

7 Ms Morgan developed a friendship with Mr McTeggart between 1994 and the date of his death. She provided some care for Mr McTeggart, particularly in the last seven years of his life when, due to failing health, he was not able to look after himself fully.

(a) Did Ms Corbett have a satisfactory explanation for not making her claim within six months after the grant of probate of the Will?

(b) What would be the prospects of success of a claim by Ms Corbett for further provision out of the Estate?

9 For the reasons that follow, I have concluded that Ms Corbett's application for an extension of time within which to make a claim for further provision out of the Estate should be dismissed, as such a claim, if it were made, would be hopeless and bound to fail.

Relationship between Mr McTeggart and Ms Corbett

10 The details that are set out below regarding the relationship between Mr McTeggart and Ms Corbett are derived from the affidavits of Ms Corbett and her daughters. Those affidavits were largely uncontradicted by State Trustees. In any event, the parties have agreed that, in deciding Ms Corbett's application, I should accept at face value the evidence in support of the application.

11 The affidavits of Ms Corbett and her daughters are imprecise and omit many details, including the dates of important events. The reason for the imprecision and the omissions is that Ms Corbett and her daughters suffer from clinical depression and take medication which has affected their memories. The absence of important details in their affidavits has made it difficult for me to construct a complete chronological account of the relevant events.

Ms Corbett's childhood relationship with the McTeggarts

12 Mr McTeggart migrated to Australia from Ireland. He did not have any relatives in Australia. He lived in a boarding house in Abbotsford that was managed by Ms Corbett's mother. While he resided at the boarding house, he met his future wife, Teresa Wilde ('Mrs McTeggart'), who also resided at the boarding house and who was a very close friend of Ms Corbett's mother.

13 At the McTeggarts' wedding - which took place in approximately 1956 - Ms Corbett was the sole flower girl. She was then seven years of age. The McTeggarts lived at the boarding house for approximately one year. During that time, Ms Corbett also lived at the boarding house.

14 The McTeggarts then bought the Abbotsford house, which was 'around the corner' from the boarding house. They resided at the Abbotsford house for the rest of their lives.

15 As Ms Corbett did not have any uncles and aunts, she regarded Mr McTeggart as her uncle and Mrs McTeggart as her aunt, and considered them to be part of her family. She knew Mr McTeggart as 'Uncle Hughie'. She was the only child who played a role in the McTeggarts' lives and believed that they regarded her as their niece.

16 The McTeggarts were the closest friends of Ms Corbett's mother. While Ms Corbett and her mother lived in the boarding house in Abbotsford, Ms Corbett would often visit the McTeggarts and would stay at the Abbotsford house on a regular basis.

17 When Ms Corbett's mother became the manager of a boarding house in St Kilda, she and her mother moved into that boarding house. They would then visit the McTeggarts by bus and the McTeggarts would visit them. Ms Corbett was very attached to the McTeggarts and loved them dearly. They were a significant part of her life.

Ms Corbett's relationship with the McTeggarts after her marriage

18 Ms Corbett was married in 1970 at the age of 20 years. Kelly was born on 20 July 1972 and the McTeggarts were her godparents. Soon after Kelly's birth, Ms Corbett and her husband moved to Queensland. Candice was born in Queensland on 18 October 1973. Ms Corbett left her husband and returned to Melbourne with her young daughters. She lived in St Kilda.

19 After Ms Corbett returned to Melbourne, Mrs McTeggart helped her to look after her daughters. Mrs McTeggart would often baby-sit the girls so that Ms Corbett could work two days per week. Kelly and Candice regarded Mr McTeggart as their uncle and Mrs McTeggart as their aunt.

20 Over many years, Ms Corbett and her extended family spent Christmas Day with the McTeggarts. When the McTeggarts celebrated Christmas at the Abbotsford house, they invited Ms Corbett, her daughters, her mother, her grandmother and her aunt to join them. Ms Corbett regarded the McTeggarts as having been 'adopted' by her family.

21 Mr McTeggart was reclusive. Apart from going to the pub after work and his interaction with Ms Corbett's extended family, he did not have a social life. Mrs McTeggart, on the other hand, was very outgoing. She was a member of the Carlton Football Club and attended every game in which Carlton played. Mrs McTeggart asked Ms Corbett to permit her daughters to accompany Mrs McTeggart to football games. Ms Corbett agreed.

22 From approximately 1979 until approximately 1984, during the football season, Ms Corbett would take her daughters to the Abbotsford house so that they could accompany Mrs McTeggart to football games. The girls stayed at the Abbotsford house from Friday night until Sunday afternoon. When Kelly and Candice got older, they travelled on their own to and from the Abbotsford house by bus. Mr McTeggart would often cook meals for them and buy them treats.

23 During the summer months, Ms Corbett and her daughters saw the McTeggarts 'quite a bit as [they] would go for outings or visit each other'.

24 While Kelly and Candice were young, Mr McTeggart would take them to the Royal Melbourne Show and to his work Christmas party. They saw the McTeggarts on a regular basis while they were growing up.

25 When Ms Corbett's brother was killed in a motor vehicle accident in 1980, her mother suffered a breakdown and was hospitalised for several months. The McTeggarts visited Ms Corbett's mother regularly. Ms Corbett's mother was prescribed anti-depressants for the rest of her life.

26 From approximately 1984, Kelly and Candice ceased to attend the Abbotsford house for the weekends, as they 'wanted to do [their] own thing'. However, they still saw the McTeggarts 'on occasions' when they visited their maternal grandmother's house because the McTeggarts were often there. Kelly and Candice also kept in contact with the McTeggarts by telephone and saw them every Christmas. They sent birthday cards to the McTeggarts.

27 Kelly did not visit Mr McTeggart when she was an adult,[2] but she talked to him on the telephone 'from time to time'. It appears that this was also the position with Candice. In 'the last three or four years', Candice did not wish to have any contact with Mr McTeggart.

28 In approximately 1992, Candice suffered a severe depressive episode. Since that time, she has suffered from clinical depression, fibromyalgia and body dysmorphic disorder. She has been house-bound for extensive periods. Ms Corbett and Kelly have looked after Candice, who has received Centrelink payments for most of her adult life.

29 In approximately 1993, Kelly was diagnosed with clinical depression and she continues to take medication for this condition. The medication has affected her memory.

30 In approximately 1995, Ms Corbett was diagnosed with clinical depression. She continues to suffer from this condition and takes medication for it.

31 Ms Corbett told the McTeggarts that she and her daughters suffered from depression and that they were receiving Centrelink benefits.

32 From time to time, Mr and Mrs McTeggart made statements to Ms Corbett, Kelly and Candice that Kelly and Candice would inherit the Abbotsford house.

34 Following the death of Mrs McTeggart, Mr McTeggart became even more reclusive. He did not encourage visits, as he wished to be alone. He preferred telephone contact. Between the date of Mrs McTeggart's death and the date of Mr McTeggart's death, Ms Corbett saw him 'from time to time' and telephoned him regularly to see how he was and to talk about their shared interest in cats.

35 In approximately 2006, Candice told Kelly that Mr McTeggart had molested her when she was a child and Kelly informed Ms Corbett of these allegations.[3] Ms Corbett did not confront Mr McTeggart about the alleged molestation. She kept in contact with him and called him 'about three times a year'. Mr McTeggart would sometimes call her. He told her that he had had arthritis and then lung cancer.

36 In early 2009, Kelly found out from Ms Corbett that Mr McTeggart had lung cancer. Kelly did not contact Mr McTeggart because Candice had told her that Mr McTeggart had molested Candice.

37 Ms Corbett had not heard of Ms Morgan prior to Mr McTeggart's death. He had never mentioned Ms Morgan to her.

Relationship between Mr McTeggart and Ms Morgan

38 Ms Morgan first met the McTeggarts in 1994 after her sister moved into the house at 5 Paterson Street, Abbotsford, which is next door to the Abbotsford house. Ms Morgan was then 21 years of age and was studying for an Arts degree. Two years later, she moved in with her sister and she continues to live next door to the Abbotsford house.

39 Initially, Ms Morgan and the McTeggarts had a 'neighbourly' relationship, which consisted mainly of social visits. Gradually, Ms Morgan developed a close relationship with the McTeggarts. Prior to her death on 26 June 2000, Mrs McTeggart had health problems and Mr McTeggart would often seek Ms Morgan's assistance in looking after Mrs McTeggart.

40 In approximately 2002, Mr McTeggart was hospitalised after he developed pneumonia. Ms Morgan and her sister visited Mr McTeggart on every day that he was in hospital and they drove him home when he was discharged.

41 After Mr McTeggart's hospitalisation, Ms Morgan began increasingly to look after him. He gave her a key to his front door and she visited him, on average, five days per week. She began to buy some groceries for him and, over time, also purchased his medication, paid his bills and conducted routine banking transactions on his behalf.

42 Ms Morgan sometimes lent money to Mr McTeggart before his pension was due to be paid to him. Mr McTeggart baked a cake for Ms Morgan every Saturday morning and he gave her approximately $3 per fortnight so that she could buy her dog a 'present'.

43 From about 2007, Mr McTeggart hardly left the Abbotsford house. He became reliant on Ms Morgan to pay his bills, to buy his medication and to purchase groceries for him and his cat 'Impy'.

44 Mr McTeggart was hospitalised on four or five occasions. On these occasions, Ms Morgan usually visited him every evening. The only other individuals who visited Mr McTeggart were his friend, Michael Collins, and a representative of the Irish Welfare League. While Mr McTeggart was in hospital, Ms Morgan ensured that 'Impy' was looked after. She also washed Mr McTeggart's bedding and clothing.

45 In Mr McTeggart's final 12 months at the Abbotsford house, he stopped eating properly. Ms Morgan prepared special meals for him at least two to three times per week. She cut Mr McTeggart's toenails, provided him with sheets, blankets and towels and emptied containers of urine from beside his bed when he was no longer willing or able to get out of bed to go to the toilet. She also contributed to the upkeep of the Abbotsford house by changing light globes, unblocking the guttering, looking after the garden and changing the kitty litter.

46 Towards the end of his life, Mr McTeggart was not well enough to stay at the Abbotsford house. Ms Morgan arranged for him to stay at the Hope Street Aged Care facility. She visited him there at least three times per week.

47 Ms Morgan organised Mr McTeggart's funeral. In order to ensure that Mr McTeggart's friends were aware of the funeral, Ms Morgan looked through Christmas cards that Mr McTeggart had retained, contacted the people who had sent the cards and provided them with the details of the funeral. Ms Morgan did not find any Christmas cards from Ms Corbett or her daughters.

48 Mr McTeggart had never mentioned Ms Corbett or her daughters to Ms Morgan.

Dealings between Ms Corbett and State Trustees after Mr McTeggart's death

49 In her first affidavit, Ms Stokes gave detailed evidence of State Trustees' oral and written communications with Ms Corbett after the death of Mr McTeggart.

50 The oral communications between State Trustees and Ms Corbett included the following:

(a) On 28 July 2009, Ms Corbett telephoned an employee of State Trustees and discussed financial arrangements for Mr McTeggart.

(b) On 4 August 2009, an employee of State Trustees telephoned Ms Corbett and informed her of the provisions of the Will. Ms Corbett said that she was a niece of Mrs McTeggart. Ms Corbett also said that she would like to have a cabinet that was at the Abbotsford house because of its sentimental value.

(c) On 17 August 2009, Ms Corbett telephoned an employee of State Trustees and asked whether she could have the family photographs and a chest of drawers that were promised to her when she was a child.

(d) On 20 November 2009, Ms Stokes and Ms Corbett discussed the difficulties that State Trustees were having with Kenneth Nash, who was residing at the Abbotsford house at the time of Mr McTeggart's death. Mr Nash claimed an entitlement to continue residing at the Abbotsford house for as long as Mr McTeggart's cat remained alive.

(e) On 11 March 2010 - after State Trustees had advised Ms Corbett that Mr Nash had vacated the Abbotsford house and had sought her instructions concerning the property - Ms Corbett telephoned Ms Stokes and said that she would like the property to be sold.

(f) On 22 April 2010 - after State Trustees had advised Ms Corbett that Ms Morgan had arranged for a builder to inspect the Abbotsford house - Ms Corbett telephoned Ms Stokes and asked her why Ms Morgan had arranged for the property to be inspected by a builder. Ms Stokes told Ms Corbett that Ms Morgan was considering buying out Ms Corbett's share of the Abbotsford house. Ms Corbett said that she would like the property to be sold at auction.

(g) On 23 April 2010, Ms Stokes telephoned Ms Corbett and had a further discussion about a possible transfer of Ms Corbett's share of the Abbotsford house to Ms Morgan. Ms Corbett asked whether she could have a look at the property as she had not been in it for some years. On 5 May 2010, Ms Corbett and Kelly attended the property, looked over it for 45 minutes and collected some photographs and pictures.

51 The written communications between State Trustees and Ms Corbett included the following:

(a) State Trustees sent to Ms Corbett a letter dated 4 August 2009, which attached, among other things, a document headed 'Your Guide to Estate Administration' and a document headed 'Definitions of Terms commonly used in Estate Administration'. The first-mentioned document contained the statement that the 'Testator Family Maintenance (TFM) period ... [e]xpires 6 months from date of Grant'. The second-mentioned document defined the expression 'Testator Family Maintenance (TFM)' as follows:

This term describes a legal claim that a person may bring seeking a share (or a greater share) of a deceased estate. The claimant must show that the deceased had a responsibility to make provision for the claimant but failed to do so. A claim must generally be brought within 6 months of the Grant, and for this reason the estate is in normal circumstances not distributed until this period has expired.

The document did not contain a definition of 'Grant', but provided separate definitions of 'Grant of Probate' and 'Grant of Letters of Administration'.

(b) State Trustees sent to Ms Corbett a letter dated 23 September 2009, which relevantly stated:

Legal 'waiting periods'

While I can now deal with estate assets, pay liabilities and finalise taxation matters, there are legal 'waiting periods' which normally need to elapse before any assets can be distributed to you and your fellow beneficiaries. They are as follows:

1 Creditors' claims

...

2 Testator's Family Maintenance (TFM claims)

This term describes a legal claim that a person may bring seeking a share (or greater share) of a deceased estate. The claimant must show that the deceased had a responsibility to make provision for the claimant but failed to do so. A claim must generally be brought within six months of the Grant. It is for this reason that, in normal circumstances, the estate is not distributed until this period has expired.

This period expires on 21 March 2010.

...

Estate finalisation process

...

Provided no TFM claims are made against the estate, I anticipate the estate administration will be completed by April 2010. I will provide you with regular updates throughout the administration, and contact you if I become aware of any issues which are likely to cause a delay.[4]

(c) On 28 January 2010, Ms Corbett arranged for a friend to send an email to State Trustees setting out a '[h]istory of contact and conversations relating to the estate and intentions of Hugh McTeggart'. That document referred to the relationship between the McTeggart and Corbett families and to the statements made by the McTeggarts that Kelly and Candice would inherit the Abbotsford house.

52 Ms Corbett acknowledged that she had had oral and written communications with State Trustees. She said that, although she had received a letter that 'contained information about time limits which apply to people who wished to bring a claim against the [E]state, [she] had no idea what that meant or that it could apply to [her].' She had not read the letter very carefully.

53 Ms Corbett said that, at around the time that Mr McTeggart died and in subsequent months, she was preoccupied with her health problems and with those of her daughters. She said that '[t]he furthest thing from [her] mind was money, or a potential challenge to the [W]ill.'

54 At around the time that Mr McTeggart died, Candice was in hospital as a result of a nervous breakdown. On 6 March 2009, Candice was so ill that Ms Corbett called a crisis assessment team. Candice was admitted to the psychiatric ward at the Alfred Hospital for a day. On 31 July 2009, Candice was admitted as an in-patient of that psychiatric ward. She remained there until 18 August 2009. While she was an in-patient, Candice received convulsive shock therapy. Ms Corbett and Kelly visited Candice daily while she was in hospital.

55 In November 2009, Candice wrote a suicide note. Ms Corbett sought assistance from emergency psychiatric services.

56 In May 2010, Ms Corbett visited the family doctor, Dr Joe Blau, and told him that she felt upset and distressed about the Will. Dr Blau asked her whether Mr McTeggart was the uncle who had molested Candice. When Ms Corbett confirmed that he was, Dr Blau advised her to see a solicitor. As suggested by Dr Blau, Ms Corbett sought legal advice and subsequently commenced this proceeding on 3 June 2010.

Principles relevant to applications for extensions of time under s 99 of the Act

57 Section 99 of the Act provides that an application for provision, or additional provision, out of a deceased estate, must be made within six months after the grant of probate. The section empowers the Court to extend this time provided that the application for an extension is made before the final distribution of the estate.

58 The authorities have established that the matters that the Court must consider in deciding an application for an extension of time under s 99 of the Act include:

(a) the length of the plaintiff's delay and whether the applicant has a satisfactory explanation for the delay;

(b) the prospects of success of a claim by the applicant for provision, or additional provision, out of the estate; and

(c) whether the granting of the application would cause any prejudice to the estate or to the beneficiaries.

59 State Trustees has conceded that the granting of Ms Corbett's application would not cause any relevant prejudice. Accordingly, the issues that I need to determine are:

(a) Did Ms Corbett have a satisfactory explanation for not making her claim within six months after the grant of probate of the Will?

(b) What would be the prospects of success of a claim by Ms Corbett for further provision out of the Estate?

60 In Ansett v Moss,[5] the Court of Appeal rejected an argument that an applicant for an extension of time under s 99 of the Act could not succeed unless he or she established that there was a satisfactory explanation for the delay.[6] The Court held that the absence of a satisfactory explanation will be decisive in some circumstances, but not in others.[7]

61 Buchanan JA, with whom Redlich JA and Cavanough AJA agreed, said that 'the discretion conferred by s 99 should not be confined by any rigid rules'.[8] His Honour stated that, while the question of whether the applicant was ignorant of his or her rights to make a claim under Part IV of the Act is important in an application for an extension of time under s 99, the absence of such ignorance will not necessarily be fatal to the application.[9]

62 A determination of an applicant's prospects of success in making a claim under Part IV of the Act requires a consideration of the factors which the Court must take into account pursuant to s 91 of the Act.

63 Section 91 of the Act 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.

...

(3) The Court must not make an order under subsection (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

...

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

...

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 subsection (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.

64 The strength of an applicant's claim for relief under Part IV of the Act is a relevant factor to be considered in an application for an extension of time under s 99 of the Act. In order for such an application to be rejected on the basis of this factor, 'a high threshold [must] be met, namely, that the [applicant's] case was hopeless.'[10]

65 In Re Petrucci; Petrucci v Fields,[11] Mandie J conveniently summarised the Court's approach to assessing the strength of any claim under s 91 of the Act. His Honour said:

a conclusion that the plaintiffs or any of them were persons for whom the deceased had, or did not have, responsibility to provide does not automatically flow from a consideration of the listed criteria. It is not possible to say that the criteria 'are satisfied' or 'are not satisfied'. Consideration of the evidence as a whole in the light of the statutory criteria gives rise to the question whether the deceased had a 'moral' responsibility to make any provision for the proper maintenance and support of any of the plaintiffs. In considering the question of moral responsibility, in the light of those criteria, the Court of necessity must have regard to the ordinary circumstances existing in society or 'prevailing community standards' or make a value judgment in the light of current standards, arising as a matter of morality or humanity. ... [T]he statutory provisions are designed to enforce the moral obligation of testators to use their testamentary powers for the purpose of making proper and adequate provision for the support of the person concerned, having regard to the means of that person, to the means and deserts of others and to the relative urgency of the various moral claims upon their bounty - the provision which the Court may properly make in default of testamentary provision is that which a just and wise testator would have thought was their moral duty to make in the interests of the person concerned had they been fully aware of all the relevant circumstances.

The Court is not entitled to rewrite the will in accordance with its own ideas of fairness or justice. The Court must place itself in the position of the testator and consider what the testator ought to have done in all the circumstances of the case, treating him for that purpose as a wise and just, rather than a fond and foolish testator.[12]

Has Ms Corbett satisfactorily explained her delay?

66 As stated at [52] above, Ms Corbett did not deny receiving correspondence from State Trustees in which references were made to the time limit of six months for the making of applications for testator family maintenance under Part IV of the Act. She stated that she did not understand that such an application had any relevance to her. She also stated that, at the time of Mr McTeggart's death and in the ensuing months, she was preoccupied by health issues affecting her family.

67 Although Ms Corbett's affidavit did not state, in terms, that she first became aware that she may be entitled to make a claim for further provision out of the Estate when she sought legal advice following her visit to Dr Blau, this can be inferred from her affidavit.

68 I accept that, prior to obtaining legal advice in May or June 2010, Ms Corbett did not appreciate that she could make a claim under Part IV of the Act. Although the correspondence from State Trustees referred to such claims and the time limit for making them, I infer that Ms Corbett understood those statements as being relevant to possible delays in the receipt of her entitlements out of the Estate that might have resulted from claims under Part IV of the Act made by other persons. In my opinion, it was not unreasonable for a person in Ms Corbett's position to place such an interpretation on the information that was provided to her.

69 Ms McOmish, who appeared for State Trustees, submitted that I should not accept Ms Corbett's evidence that her family's health problems prevented her from turning her mind to the making of a claim under Part IV of the Act. Ms McOmish referred to the extensive communications between Ms Corbett and State Trustees as indicating that Ms Corbett was actively engaged in matters relating to her entitlements out of the Estate.

70 In my opinion, the matters to which Ms McOmish referred do not detract from the fact that Ms Corbett, having turned her mind to her entitlements out of the Estate, did not appreciate that the references in the correspondence from State Trustees to the making of claims under Part IV of the Act were potentially applicable to her. Further, the health problems affecting Ms Corbett's family would have been a source of constant stress which would have inhibited her from giving detailed consideration to complex legal issues and to matters that involved court proceedings.

71 The effect of the principles discussed at [60] and [61] above is that an applicant must meet a relatively low threshold in order to satisfy the requirement that he or she have a satisfactory explanation for the delay in making a claim under Part IV of the Act. In this case, the length of Ms Corbett's delay was less than three months. This delay was not excessive. Ms Corbett made an application for an extension of time promptly after becoming aware of her entitlement to make a claim under Part IV of the Act.

72 In the circumstances, Ms Corbett has satisfactorily explained her delay.

Is Ms Corbett's claim for further provision out of the Estate hopeless?

73 An appropriate framework for a consideration of the prospects of success of a claim by Ms Corbett for further provision out of the Estate is provided by the list of factors set out in s 91(4) of the Act. Each of the factors is discussed below.

Factor (e): relationship between Mr McTeggart and Ms Corbett

74 In the Will, Mr McTeggart described Ms Corbett and Ms Morgan as his friends.

75 The fact that Ms Corbett is not a blood relation of Mr McTeggart would not prevent her from making a successful claim for further provision out of the Estate. This is made clear by s 91(4)(e) of the Act, which refers to 'any family or other relationship between the deceased person and the applicant'.[13]

76 It is relevant for the Court to consider, however, whether the nature of the relationship between the deceased and the applicant was akin to a close blood relationship. In Re Woinarski; Unger v Sanchez,[14] Kaye J said:

where an applicant, under s 91(1), although not a family member, is able to point to a relationship with the deceased, which was akin to that of a former spouse or child of the deceased, it may be possible to conclude that a wise and just testator would have considered it his or her moral duty to make adequate provision for that person's proper maintenance and support.

...

[A]lthough the applicant need not be a member of the deceased's family, nevertheless the structure of subparagraph (e) [of s 91(4)], the continued use of the concepts of adequate provision for the proper maintenance and support of the applicant, and the historical origins of s 91, all combine to focus the inquiry on whether the deceased and the applicant had a relationship which, at the least, had a material resemblance or equivalence to the type of family relationship from which notions of moral duty and obligation are commonly derived.[15]

77 In several recent cases where an applicant who was not a blood relative of the deceased succeeded in a claim under Part IV of the Act, that applicant had a relationship with the deceased which was akin to that of a parent or child of the deceased. For example, in Re Woinarski; Unger v Sanchez,[16] which involved a claim by a neighbour of the deceased, Kaye J held that the relationship between the plaintiff and the deceased was 'closely akin to that of a daughter to an elderly mother'.[17]

78 To my knowledge, there is no case in which an applicant who had a relationship with the deceased which was akin to that of a niece has succeeded in a claim under Part IV of the Act.[18]

79 Section 91, however, sets out a single set of principles and criteria, which do not differentiate in their application between classes of claimant or types of relationship. Accordingly, the fact that the relationship between Ms Corbett and Mr McTeggart was never akin to that of daughter and father does not preclude her from making a successful claim under Part IV of the Act. The absence of that nexus in Ms Corbett's relationship with Mr McTeggart, however, is a relevant consideration in relation to any claim that she might make under Part IV of the Act.

80 Section 91(4)(e) of the Act refers not only to the nature of the relationship between the applicant and the deceased, but also to the length of the relationship.

81 I am satisfied that, during her childhood, Ms Corbett had a very close relationship with Mr McTeggart. I am also satisfied that Kelly and Candice had a very close relationship with Mr McTeggart prior to approximately 1984. I am not satisfied, however, that Ms Corbett or her daughters had a very close relationship with Mr McTeggart after approximately 1984.

82 The evidence has established that, after approximately 1984, when Candice was 11 years of age, Ms Corbett and her daughters saw the McTeggarts mainly on Christmas Day and when they visited Ms Corbett's mother. They kept in touch predominantly by telephone. The frequency of the face-to-face and telephone contact progressively decreased. From around the early 1990s, Ms Corbett met the McTeggarts only occasionally and spoke to them by telephone only a few times annually.

83 By 2000, Ms Corbett and her daughters had very little to do with the McTeggarts. This is borne out by the fact that Ms Corbett and Kelly could not accurately remember when Mrs McTeggart had died. They said that Mrs McTeggart had died '15 years ago', when, in fact, she had died on 26 June 2000.

84 Ms Morgan's evidence indicates that, after 2002, Mr McTeggart's health deteriorated significantly and that he required assistance with his personal needs. The evidence of Ms Corbett and her daughters indicates that, from 2002 until 2009, they did not have any detailed knowledge of Mr McTeggart's health and other personal affairs. It also indicates that they did not provide any assistance to him. Rather, the evidence indicates that, during this period, Ms Corbett spoke to Mr McTeggart by telephone a few times per year and that, in the course of those conversations, Ms Corbett asked Mr McTeggart about his health.

Factor (f): Mr McTeggart's responsibilities to Ms Corbett and Ms Morgan

85 Putting aside the question of Mr McTeggart's 'moral' responsibility to Ms Corbett and Ms Morgan - which is discussed below - Mr McTeggart had no special obligation or responsibility to either Ms Corbett or Ms Morgan.

86 As discussed at [2] above, the main asset of the Estate is the Abbotsford house which is worth $600,000. The Estate has personal assets worth $6,752 and liabilities of $31,369. Although no evidence was adduced about the costs of administering the Estate, it may be assumed, for present purposes, that the net amount that is available for distribution to Ms Corbett and Ms Morgan will be approximately $500,000. In the absence of a successful claim under Part IV of the Act by Ms Corbett, she and Ms Morgan will each receive approximately $250,000.

Factor (h): financial resources and needs of Ms Corbett and Ms Morgan

87 Ms Corbett ceased being in paid employment in the 1970s. Since that time, she has received Centrelink benefits.

88 Ms Corbett lives in a housing commission property in St Kilda. It appears that, apart from a motor vehicle, she does not have any savings or valuable assets. The amount of $30,000 that she inherited some years ago upon her mother's death has been 'well and truly spent'. She receives a disability support pension and rent assistance of $565.70 net per fortnight after deduction of her community housing payment. She uses all of her pension payments to meet everyday expenses.

89 Ms Corbett stated that the amount that she will be paid out of the Estate will not be sufficient to provide her with a home and with security for her future. She also stated that her pension may be affected by the payment that she receives out of the Estate.

90 Mr McTeggart was aware that Ms Corbett has been a long-term recipient of Centrelink benefits.

91 Ms Morgan is 37 years of age. She is single and does not have any children. She is employed as a program manager with a net income of $1,827.05 per fortnight. She is repaying a HECS loan at the rate of $270 per fortnight and a HECS debt at the rate of $136 per fortnight. Her other fortnightly expenses total approximately $900. Her only asset is the sum of $45,000, which she has saved over a number of years.

92 Ms Morgan continues to rent the property at 5 Paterson Street, Abbotsford and pays rent of $650 per calendar month. The rent is significantly below market because the house is run-down. The market rent for a comparable property in Abbotsford that is in good condition would be between $440 and $650 per week.

93 Given her age and apparent good health, Ms Morgan has a far greater capacity to earn income than Ms Corbett. The evidence does not enable me to determine whether Ms Morgan has any prospect of inheriting any money from a relative in the future.

94 Ms Corbett, on the other hand, does not appear to have any prospect of inheriting any money from any relative. She has few assets and little capacity to acquire new assets or to improve her financial position. It is unlikely that she will ever resume paid employment. Rather, it is likely that she will continue to receive modest benefits from Centrelink.

95 In summary, Ms Corbett has demonstrated a more parlous financial position than Ms Morgan and a greater need for maintenance and support.

Factor (i): any disability of Ms Corbett or Ms Morgan

96 As discussed at [30] and [88] above, Ms Corbett suffers from clinical depression and receives a disability support pension and rent assistance. Ms Morgan, on the other hand, does not suffer from any disability.

97 Mr McTeggart was aware of Ms Corbett's health problems and those of her daughters.

Factor (k): Ms Corbett's contribution to building up the Estate

99 It has not been suggested that Ms Corbett has made any contribution to building up the Estate.[19]

100 Apart from providing friendship to the McTeggarts - particularly prior to approximately 1984 - it has not been suggested that Ms Corbett made any contribution to Mr McTeggart's welfare.[20]

Factor (l): benefits previously given to Ms Corbett or Ms Morgan

101 The only 'benefit' that has been referred to in the evidence was a fortnightly payment of approximately $3 that Mr McTeggart gave to Ms Morgan to enable her to buy a 'present' for her dog.

Factor (m): whether Mr McTeggart maintained Ms Corbett

102 Neither Ms Corbett nor Ms Morgan were being maintained by Mr McTeggart prior to his death.

Factor (n): liability of any person to maintain Ms Corbett

Factor (o): the character and conduct of Ms Corbett

104 There are no disentitling factors arising from the character or conduct of Ms Corbett.

Factor (p): any other matter the Court considers relevant

105 There are two additional factors that are relevant in this case, namely, Mr McTeggart's promises to leave the Abbotsford house to Kelly and Candice, and Mr McTeggart's prior wills.

Mr McTeggart's promises to leave the Abbotsford house to Kelly and Candice

106 Ms Sparke, who appeared for Ms Corbett, frankly conceded that the promises that Mr McTeggart made that he would leave the Abbotsford house to Kelly and Candice did not give rise to any promissory estoppel. She submitted, however, that promises of the kind that Mr McTeggart made are relevant to the concept of 'moral' responsibility that informs the exercise of the Court's discretion under Part IV of the Act.[21]

107 I note that in Iwasivka v State Trustees Ltd,[22] Hansen J took into account statements that had been made by the deceased and her husband - who had predeceased her - that their house would be left to the plaintiff. His Honour said that these statements indicated that the deceased herself was of the view that the plaintiff should receive her benefaction.[23]

108 In this case, however, the promises were not made in favour of Ms Corbett, but were made in favour of Kelly and Candice.[24] I accept Ms McOmish's submission that, in these circumstances, the promises do not assist Ms Corbett.

109 Mr McTeggart had made two prior wills. The first will was dated 5 June 1991. In that will, Mr McTeggart appointed Ms Corbett his sole executor and left the Estate to Mrs McTeggart and, in the event that Mrs McTeggart failed to survive him, to Ms Corbett. The second will was dated 6 December 2007. In that will, Mr McTeggart appointed State Trustees as his executor and left 80 per cent of the Estate to Ms Corbett and 20 per cent to Ms Morgan.

110 In my opinion, the fact that Mr McTeggart changed his wills indicates that he turned his mind to any moral responsibility that he may have had to make provision for Ms Corbett and that he continued to do so in the light of the changes that occurred over time in his relationships with Ms Corbett and Ms Morgan.

Did Mr McTeggart have a responsibility to make provision for Ms Corbett?

111 In determining the prospects of success of any claim under Part IV of the Act that Ms Corbett might make if her application for an extension of time within which to make such a claim is granted, I must determine whether, having regard to the factors set out in s 91(4) of the Act, the trial judge could be satisfied that Mr McTeggart had a moral responsibility to make provision for Ms Corbett's proper maintenance and support in excess of the half share in the Estate which he has left her in his Will. Put another way, I must determine whether a wise and just testator, in the circumstances existing at the date of Mr McTeggart's death, would leave more than half of the Estate to Ms Corbett.

112 In my opinion, it is inevitable that, at any substantive hearing of a claim by Ms Corbett for further provision out of the Estate, the trial judge would dismiss the claim. I have reached this conclusion because, in accordance with prevailing community standards, Mr McTeggart has fully discharged whatever moral responsibility he may have had to provide for the proper maintenance and support of Ms Corbett.

113 Ms Corbett is not a blood relation of Mr McTeggart. While the absence of a blood relationship does not necessarily mean that Mr McTeggart did not have a moral responsibility to make provision for Ms Corbett's proper maintenance and support, any such responsibility is weaker than the responsibility that Mr McTeggart might have had if she were a close blood relation, particularly if she were his daughter.

114 The evidence has satisfied me that, when Ms Corbett was a child, the McTeggarts were an important part of her life. This was principally because Ms Corbett's mother was Mrs McTeggart's best friend. The fact that Ms Corbett was the sole flower girl at the McTeggarts' wedding in approximately 1956 confirms the close bond that existed at that time between Ms Corbett and the McTeggarts.

115 The bond between Ms Corbett and the McTeggarts continued to be very strong until approximately 1984. This is evident from the fact that Kelly and Candice spent most weekends at the Abbotsford house during the football season. There was regular face-to-face contact between the McTeggarts and Ms Corbett and her extended family.

116 The nature of the relationship between Ms Corbett and the McTeggarts changed, however, after approximately 1984. Around 1984, Kelly and Candice were of an age where they wanted to do their own thing. They no longer spent the weekends at the Abbotsford house during the football season. The face-to-face contact between Ms Corbett and the McTeggarts became less frequent and generally occurred on Christmas Day or on other special occasions.

117 It appears that, after the early 1990s, the relationship between Ms Corbett and the McTeggarts comprised mainly telephone communications several times a year. Ms Corbett did not have any involvement in assisting Mr McTeggart to look after Mrs McTeggart when she was ill in the final years of her life. I do not say this by way of criticism of Ms Corbett as she had her hands full in dealing with her own health problems and with those of her daughters. Nevertheless, it is a relevant consideration for the purposes of the present application.

118 The death of Mrs McTeggart does not appear to be a significant event in Ms Corbett's life, as she could not accurately remember when it took place. She deposed that Mrs McTeggart had died '15 years ago', when, in fact, Mrs McTeggart died on 26 June 2000. Ms Corbett's inability to remember when Mrs McTeggart died may be explained, in part, by the adverse effect on her memory of the long-term use of anti-depressant medication. Nevertheless, one would have expected Ms Corbett to have had a more accurate recollection of the timing of Mrs McTeggart's death if she had been close to the McTeggarts at that time.

119 Following Mrs McTeggart's death, the relationship between Ms Corbett and Mr McTeggart remained cordial but distant. Ms Corbett and Mr McTeggart had little involvement in each other's lives. One of the reasons for the distant nature of their relationship was that Mr McTeggart was a recluse who wanted to be left alone. The contact between Ms Corbett and Mr McTeggart appears to have been confined to a few telephone calls annually and to occasional visits. While Ms Corbett asked Mr McTeggart about his health when she spoke to him on the telephone, she did not assist him in any way to manage his health problems or any of his personal affairs.

120 By way of contrast, from approximately 2002, Ms Morgan played an important role in Mr McTeggart's life almost on a daily basis. That role included caring for him and helping him to manage his personal affairs. She kept a close eye on Mr McTeggart, prepared meals for him, assisted him with household chores, attended to his banking requirements, arranged transport for him when he was hospitalised and provided companionship by visiting him almost daily when he was hospitalised. When he became too frail to live independently at the Abbotsford house, she arranged for him to stay at the Hope Street Aged Care facility.

121 The fact that Mr McTeggart made a new will on 31 July 2008 to replace the will that he had made on 6 December 2007 indicates that he actively reviewed the dynamics of his relationships with Ms Corbett and Ms Morgan, and that he altered his testamentary gifts to them in the light of the circumstances that prevailed in July 2008. At that time, he had a close and caring relationship with Ms Morgan and a cordial but distant relationship with Ms Corbett. He was seriously ill and Ms Morgan was on hand to care for him - and had been doing so for several years - whereas Ms Corbett was not involved in his care and visited him infrequently. He would have been conscious of the sacrifices that Ms Morgan had made for him and keen to acknowledge and reward the care and compassion that she had provided to him.

122 In these circumstances, it is not surprising that the Will increased Ms Morgan's share of the Estate from 20 per cent to 50 per cent and decreased Ms Corbett's share from 80 per cent to 50 per cent. Although, by July 2008, Ms Corbett had little involvement in Mr McTeggart's life, he obviously turned his mind to her medical and financial circumstances, and made what he thought was fair provision for her proper maintenance and support.

123 In the context of the size of the Estate and Ms Corbett's modest financial circumstances, a testamentary gift worth approximately $250,000 was substantial. This amount may be sufficient to enable Ms Corbett to purchase a modest residential unit. Even if the amount would not be sufficient for this purpose, it would significantly improve Ms Corbett's financial position, provide her with some security and enhance her quality of life.

124 In the circumstances of this case, I am of the opinion that it is inevitable that, at the trial of any claim by Ms Corbett for further provision out of the Estate, the trial judge would conclude that Mr McTeggart had made generous provision for Ms Corbett's proper maintenance and support, and that he had fully discharged any moral responsibility he may have had towards her. Having regard to prevailing community standards, there is no prospect that the trial judge would conclude that any further provision should have been made for Ms Corbett out of the Estate.

125 For the above reasons, I am of the opinion that it would be futile to grant Ms Corbett's application for an extension of time within which to make a claim under Part IV of the Act, as such a claim would be hopeless and bound to fail.[25]

127 I will hear from the parties on the precise order to be made by the Court and on the question of costs.

[1] According to Ms Morgan, however, Mr McTeggart's wife told her that she and Mr McTeggart had a son who died when he was a teenager.

[2] Kelly attained 18 years of age on 20 July 1990.

[3] Candice's evidence was that she was molested from the age of seven years (1980) until the age of 11 years (1984).

[5] [2007] VSCA 161 (22 October 2007).

[6] [2007] VSCA 161 (22 October 2007) [6], [18].

[7] [2007] VSCA 161 (22 October 2007) [18].

[8] [2007] VSCA 161 (22 October 2007) [6].

[9] [2007] VSCA 161 (22 October 2007) [6], [14].

[10] Ansett v Moss [2007] VSCA 161 (22 October 2007) [11]; Re McManus; Day v Raudino [2009] VSC 463 (14 October 2009) [11], [12], [22].

[11] [2004] VSC 425 (29 October 2004).

[12] Re Petrucci; Petrucci v Fields [2004] VSC 425 (29 October 2004) [57]-[58] (citations omitted). See also Blair v Blair [2004] VSCA 149; (2004) 10 VR 69, 75-6 [13], 84 [41].

[14] [2009] VSC 541 (1 December 2009).

[15] [2009] VSC 541 (1 December 2009) [72], [74].

[16] [2009] VSC 541 (1 December 2009).

[17] [2009] VSC 541 (1 December 2009) [88]. See also at [79], [81], [82], [86].

[18] The case of Iwasivka v State Trustees Ltd [2005] VSC 323 (18 August 2005) involved a relationship between the plaintiff and the deceased of niece and aunt by marriage. However, Hansen J held that the relationship was akin to that of daughter and mother: at [71], [75], [76], [90], [93].

[19] Ms Morgan, on the other hand, made some contributions to the upkeep of the Abbotsford house. See above [45].

[20] Ms Morgan, on the other hand, looked after Mr McTeggart's physical and financial needs from approximately 2002 until Mr McTeggart's death on 22 July 2009. See above [40]-[46].

[21] Ms Sparke referred to Alexander v Jansson [2010] NSWCA 176 (27 July 2010) [18].

[22] [2005] VSC 323 (18 August 2005).

[23] Iwasivka v State Trustees Ltd [2005] VSC 323 (18 August 2005) [94].

[24] Kelly and Candice had also applied for an extension of time within which to make a claim under Part IV of the Act, but had discontinued their applications.

[25] See above [64].