71 Mr Smith set out in his affidavit the title details of the land which comprises Gunyong Valley and of which the defendants are presently the registered proprietors. He referred to eight separate Certificates of Title[33]. On six titles the registered proprietors are stated to be the three defendants as joint proprietors, while on two titles, the land described in Volume 10822 Folio 931 and Volume 10822 Folio 932, the registered proprietors are stated to be the defendants as "Legal Personal Representative(s) of Reginald Myles Ansett who died on 23/12/1981".
72 There was a further piece of land (Volume 10898 Folio 556) which had previously been owned jointly by the defendants and South East Water Ltd. Counsel for the defendants informed me that South East Water Ltd agreed to transfer that land to the estate "because it had been the subject of constant occupation and they didn't really need it"[34]. Mr Smith exhibited to his affidavit a copy of a transfer, dated 4 November 2005, by which the defendants and South East Water Ltd (as transferors) transferred the title to the defendants in their capacity as "Legal Personal Representative(s) of Reginald Myles Ansett who died on 23/12/1981".
Submissions
Plaintiff
73 Counsel emphasised that the Court has a discretion to extend the time for bringing a claim under Part IV of the Act and that the discretion must be exercised judicially. The plaintiff bore the onus of establishing why the failure to apply within time should be excused, and why it would be unjust for the plaintiff to be penalised for being out of time. Factors relevant to the exercise of the discretion included the sufficiency of the explanation of the delay, whether there would be any prejudice to beneficiaries, whether there has been any unconscionable conduct by the plaintiff, and the strength of the plaintiff's case, although as to this last element, counsel noted a difference in the authorities as to its relevance as a factor.
74 Counsel referred to Re Nassim, deceased[35] in support of the proposition that a lack of knowledge of the size and extent of the testator's estate, where the lack of knowledge has not been caused or contributed to by any fault or lack of action on the plaintiff's part, may provide a ground for granting an extension of time. She also referred to Re Dun[36] for the proposition that an absence of injustice to beneficiaries was a strong ground for granting the extension of time, and to Re Ruttie, deceased[37] for the proposition that it is not hardship to a beneficiary if the only argument that can be advanced is that the beneficiary has lost the benefit of a rigid time limit.
75 Counsel recognised that an application for an extension of time should be made promptly after the plaintiff becomes aware of the right to seek an extension of time, and that a strong case for an extension of time may be lost if the plaintiff delays unduly after becoming aware of the right to apply for provision[38].
76 Counsel submitted that the plaintiff's delay should be excused for three main reasons.
77 First, once the plaintiff became aware of the full terms of the will and her legal rights, in 2005, she issued the present proceeding seeking an extension of time. The decision to show the plaintiff only the parts of the will that contained her entitlement was deliberate. At the time of her father's death the plaintiff was young, had no experience with wills, and was inexperienced in life. She had had a very protected family life and lacked the wherewithal to challenge her parents and question authority. Counsel referred to the strong personality of Lady Ansett, the close relationship between her and the plaintiff, the fact that there was never any discussion of the family's assets, and the fact that no discussion was allowed about the deceased's will. That, said counsel, explained why it was very difficult for the plaintiff to make any enquiries at all as to the contents of the will. The plaintiff's upbringing and inability to question the authority of her parents left a legacy to this day, in the sense that it was very difficult for her to become more assertive after such a long period of time not questioning authority. Even after becoming aware of her rights, the plaintiff had still found it difficult to bring her application.
78 Secondly, an extension of time would not prejudice any beneficiaries, as the residuary estate is held on trust for charitable purposes in perpetuity with distributions of income at the discretion of the trustees. No beneficiary is affected, as the recipients of the income from the residuary estate do not have rights to receive the income. The effect of an order for further provision would merely be to reduce the income earned on the residuary estate by virtue of reducing the capital, and that is something that could be compensated for over time, bearing in mind it is in perpetuity, the income could be accumulated or there would simply be less income to be given.
79 Thirdly, the plaintiff's case for further provision was strong on the merits. Counsel submitted that the benefits received by the plaintiff under the will were small in comparison to the size of the estate and bearing in mind her position as a child of the deceased. The value of the estate at the time of the deceased's death was $8.2 million. The plaintiff received an outright legacy of only $50,000, notwithstanding that she was young, recently married, without a career as such, and may be expected to have children. In addition, of course, was the gift of income under the protective trust but the overall amount received by the plaintiff over the years was not huge and the lump sum had not grown with the times.
80 Counsel referred to several cases which dealt with claims for further provision brought by adult children[39], in particular Re Hodgson, deceased[40], as supporting the proposition that there is no rule preventing a successful claim by an adult daughter, even though her husband is healthy, in work, and they live in comfortable circumstances. Counsel emphasised that each case depends on the circumstances in terms of the provision that might be made out of the estate.
81 These submissions presuppose that there has not been a final distribution of the estate, counsel accepting that if there has been, time cannot be extended.
82 As to this threshold question, counsel submitted that the defendants bore the onus of proving that there had been a final distribution of the estate, which they had failed to do. There had not been a final distribution of the estate, as that term was understood in Easterbrook v Young[41]. She referred to several passages in Easterbrook, in particular that "...the disabling circumstance ... is the actual distribution of the estate, its removal from the hands or name of the personal representative and its placement in the hands or name of the testamentary or statutory beneficiary"[42]. Here, said counsel, the executors still had estate assets in their hands. First, Mr Smith's evidence demonstrated that the defendants held land in their capacity as legal personal representatives of the deceased, and in s 5 of the Act "personal representative" means, among other things, "the executor". Secondly, further sums are still to be received by the estate as a result of the settlement of the proceedings issued by Mrs Richards and her husband against the estate. And the real estate to be transferred to Mrs Richards and her husband as part of the settlement would come out of the pool of property presently held by the defendants. Thirdly, Mr Smith's affidavit referred to a sum of $150,000 being retained in the estate as a provision if required. Fourthly, it was a "bland assertion" rather than hard evidence that the defendants had distributed the residuary estate on 1 July 2004.
83 Counsel also made what she described as an alternative submission, relying on the High Court's discussion in Easterbrook of the decision of Adams J in Public Trustee v Kidd[43]. Counsel submitted that the Court could ultimately order that further provision be made for the plaintiff out of the capital set aside in the Ashhurst Settled Fund, even if that money had been distributed to the trustees of the Fund.
Defendants
84 Counsel pressed the threshold point, namely that the Court could not extend time because there had already been a final distribution of the estate, as that term was understood in Easterbrook.
85 As to that, counsel referred to the decision of Brooking J in Re Lago, deceased[44]. In that case, the deceased's will left $10,000 to one daughter (the plaintiff) and left the rest of the estate (the main asset being a farm property valued at $125,000) in equal shares to the other two daughters, who were also the executrices (the respondents). The executrices signed a transmission application to be registered as proprietors of the farm property, being land under the operation of the Transfer of Land Act. On the same day they also executed a transfer of the farm from themselves as executrices to themselves as tenants in common in equal shares. The respondents' solicitors lodged the transmission application and the transfer at the Titles Office. Subsequently the plaintiff sought an extension of time in which to seek further provision out of the estate. The transmission application and transfer had not yet been registered. Brooking J noted that "Easterbrook's Case itself makes it plain that [in s 99 of the Act] "distribution" is an act of delivery or transfer, not something that may result from the transmogrification of the personal representative"[45]. His Honour concluded that "In the present case the personal representatives had done all that it was necessary for them to do to enable themselves to become registered as proprietors as tenants in common, and as personal representatives they could not prevent or obstruct registration"[46]. There was thus a final distribution of the estate and time could not be extended.
86 Counsel acknowledged that Easterbrook established that the occurrence of no more than the process of transmogrification from executor to trustee would not amount to a distribution within the meaning of s 99, but submitted that in the present case the estate had been distributed in that following the death of Lady Ansett, the residuary estate is now held by the defendants in their capacity as trustees of a separate, freestanding, perpetual charitable trust established under the deceased's will and known as the R.M. Ansett Trust. Counsel accepted that "obviously there's been no distribution of all the subject [assets] of the R.M. Ansett Trust, that will happen in due course, perhaps, but it's a distribution to the trustees of that ongoing trust and the distribution occurs not just as a matter of transmogrification, but that occurs when there is full compliance with the terms of the will and an appropriation of the residuary assets to the trust, so that the trust is to go forward and be administered by the trustees of the R.M. Ansett Trust". This was not simply a case of executors becoming trustees of relevant assets, rather it involved the constitution of an ongoing trust by the appropriation of relevant assets to trustees who were, fortuitously, the same people as the original executors.
87 Counsel submitted that it was inconceivable that the assets of a perpetual charitable trust set up under the deceased's will, which has been running for some time, could be amenable to applications for further provision under Part IV of the Act.
88 Similarly, counsel submitted that the capital sum set aside in the Ashhurst Settled Fund had also been distributed and could not be amenable to an order under Part IV. It was a freestanding trust arising under the will and had been running for many years in favour of the plaintiff. It was "fortuitous ... that the trustees of that trust happen to be the same as the executors". It was not a matter of transmogrification but of appropriation and distribution to the trustees of freestanding long-term trusts under the will.
89 As to the fact that the trustees are the same people as the executors, I interpolate that pursuant to leave counsel for the defendants provided a supplementary written submission as to the effect of Dawson v Fitch[47], a decision mentioned by counsel for the plaintiff, where the Full Court of the Supreme Court of South Australia considered the question of final distribution for the purposes of an extension of time under the Inheritance (Family Provision) Act 1972 (SA). The supplementary submission was that in the case of the R.M. Ansett Trust and the daughter's trusts, it would be a "nonsense in refinement" to say that (a) there would be a distribution if at least one of the trustees were not an executor, but (b) there would not be a distribution if the trustees were the same as the executors so that no actual transfer was called for, but simply a suitable appropriation as referred to in Mr Smith's affidavit.
90 As to the plaintiff's reliance on certificates of title which showed that the defendants were registered as "legal personal representatives" of the deceased, counsel submitted as follows. On all the certificates of title, the defendants held the property as joint tenants, which is how they are supposed to hold the land, whether as executors or trustees. Unlike the situation in Re Lago where the executrices held the land as joint tenants but had to transfer the title to themselves as tenants in common, in this case such a transfer was not necessary, the land held by the defendants as joint tenants had been appropriated to the trust. Thus, submitted counsel, the estate had been finally distributed and time could not be extended.
91 Counsel accepted that if he was wrong on that point, there was no issue as to the relevant principles applicable to an application to extend time. He referred to several authorities which it is not necessary to set out but to which I have regard. He emphasised that it was not enough for the plaintiff to show only that she would suffer manifest injustice if an extension were refused. That is, in itself a strong claim for further provision would not justify an extension of time.
92 In any event, counsel submitted that the plaintiff had not demonstrated an arguable case for further provision. He referred to Coates v National Trustees[48] for the proposition that, under the legislation as it stood at the time of the deceased's death, in considering whether the plaintiff has an arguable case, the Court must ask two questions; first, looking at matters at the date of the deceased's death, did the testator fail to make adequate provision for the proper maintenance and support of the plaintiff?; secondly, if the answer to the first question is yes, having regard to circumstances existing at the time of the order, what additional benefit is required to ensure that adequate provision is made for the plaintiff's proper maintenance and support out of the testator's estate? Counsel submitted that the plaintiff had not provided any evidence of her economic circumstances as at the death of the deceased, hence the Court could not answer the first jurisdictional question in her favour.
93 While conceding that the plaintiff's ignorance of her right to apply for additional provision under the Act may justify delay, counsel emphasised that an applicant must act promptly after discovering the right to apply. Here, he submitted, the delay consisted of two separate periods, namely; (a) from 17 November 1982 (being six months after the grant of probate) to the time the plaintiff first learnt that she could challenge the will, which was, at the latest, shortly after Mrs Richards brought proceedings in April 2004, when the plaintiff saw a solicitor, and (b) the ensuing period up to 2 May 2005 when the plaintiff finally commenced her proceeding.
94 As to the first period, the plaintiff attributed her failure to commence proceedings to her lack of awareness that she could challenge the deceased's will, which lack of awareness she seemed to attribute to the fact that the executors did not provide her with a full copy of the will, and their failure to refer her to independent legal advice. He conceded that "the cases suggest if you don't know, that constitutes an appropriate excuse". But even if the plaintiff had been aware of her rights, her mother was so controlling that the plaintiff would not have countenanced commencing proceedings while her mother was alive. Counsel submitted that if the plaintiff learned of her rights but decided not to exercise them because of concern for the feelings of her late mother or about her reaction, that would not amount to an acceptable excuse.
95 As to the second period, counsel submitted that the plaintiff did not provide an adequate explanation of the delay. The plaintiff first learned of her rights "round about the time her sister instituted her proceeding in April 2004 and at about that time she went and saw a solicitor or she rang up, contacted a solicitor but nothing occurred, no proceeding". In short, the plaintiff knew of her rights by 23 April 2004, and certainly by 3 August 2004 when she swore an affidavit in her sister's proceeding, yet she waited until 2 May 2005 to commence her proceeding. The plaintiff could not make up her mind, and inability to make up one's mind is not an appropriate excuse for delay.
96 Counsel referred to what he described as the plaintiff's attempts to provide a medical explanation of her delay and submitted that no medical evidence was adduced supporting any contention that, prior to 2 May 2005, the plaintiff was medically incapable of instituting the present proceeding.
97 Further, counsel refuted the suggestion that the executors had done anything improper in their dealings with the plaintiff and her sisters. He submitted that executors are not obliged to provide a beneficiary with a full copy of a will and any codicil thereto; their obligation is to explain the will to a beneficiary insofar as it affects that beneficiary. That was precisely what the first defendant did here. Nor were the executors obliged to refer the beneficiaries to independent legal advice. The plaintiff and her sisters "weren't kept in the dark, they were told of their entitlements and why should they be referred to legal advice?"
Decision
98 There was no real dispute between counsel as to the legal principles governing the application. If there had been a final distribution of the deceased's estate, the application must fail. If the estate has been partially distributed, an extension of time would not affect distributions made before the application was commenced. It is thus convenient to begin with the threshold question of whether there has been a final distribution of the estate.
99 In my view, regarding the evidence overall, it is not established that there has been a final distribution of the estate for the purpose of s 99. Mr Smith's affidavit refers to "the balance of the residuary estate in the sum of $9,197,606.54 (of which $150,000 was retained in the Estate as provision if required)" being appropriated to the R.M. Ansett Trust on 1 July 2004. Further, there was reference to the defendants having not received the sum of $300,000 payable to them by Mrs Richards and her husband under the terms of the settlement of their legal proceedings. And, there is a sum of $300,000 (plus interest) set aside in the Residence Fund which was to be placed into the residuary estate. In her closing address, counsel for the plaintiff submitted that Mr Smith's affidavit "discloses that funds are coming in and going out ... and the material still talks about the $150,000 being in the estate and it's set aside for whatever purpose. So there's this going in and out, it seems from the material but we don't know because we are not in a position to have that information but it's not, in our submission, proper evidence". Although the issue of the adequacy of the evidence of distribution was thus raised by the plaintiff, counsel for the defendants did not address the specific amounts of money said to remain in the estate. Rather, he made a general submission that the estate had been finally distributed upon the setting up of separate freestanding trusts pursuant to the terms of the deceased's will, following the death of Lady Ansett. While that may be so in relation to the Ashhurst Settled Fund, and indeed the R.M. Ansett Trust, this said nothing as to the $150,000 "retained in the Estate as provision if required" nor as to the $300,000 the estate was to receive on the settlement of the proceedings with Mrs Richards and her husband. Nor was there any explanation of the $300,000 in the Residence Fund apart from that stated by Mr Smith's affidavit to which I have made reference. I am not satisfied that there has been a final distribution of the estate (at least insofar as the above amounts are concerned) so as to preclude an extension of time. I should add that I assume that these sums of money have not been, and will not be, appropriated to the R.M. Ansett Trust pending the determination of the present proceeding.
100 The same position obtains, in my view, in relation to the land in respect of which there are certificates of title standing in the names of the defendants as legal personal representatives of the deceased. As to the land described in Volume 10822 Folio 931 and Volume 10822 Folio 932, the relevant plan of subdivision was registered on 20 August 2004. And as to the land described in Volume 10898 Folio 556 (previously owned jointly by the defendants and South East Water Ltd), the transfer to the defendants as legal personal representatives was dated 4 November 2005. Thus, on all three titles, the defendants became the registered proprietors as legal personal representatives of the deceased after 1 July 2004 when the R.M. Ansett Trust was set up by the defendants. I do not overlook the submission of counsel for the defendants as to the lack of necessity to change the description of the registered proprietors, but as the description of the defendants' capacity in the three titles is clear and there being no real explanation as to why the titles are held by the defendants as legal personal representatives of the deceased, I am satisfied that there has not been a final distribution of the estate insofar as the land in these three titles is concerned.
101 As to the remainder of the estate, and notwithstanding the submissions of counsel for the plaintiff, in my view it is established that there has been a final distribution thereof. This is so in respect of all the land held by the defendants (except that in the three titles mentioned above), the other assets comprising the R. M. Ansett Trust Fund, and the Ashhurst Settled Fund. The fact that the trustees are the same people as the executors is merely one factor to consider when deciding the factual question whether the estate assets have been put beyond recall. In my view, these assets have been put beyond recall as they are now held by the trustees to be dealt with only in accordance with the terms of the relevant trusts.
102 I also reject the alternative submission advanced by counsel for the plaintiff, namely that applying the obiter of the High Court in Easterbrook, the Court could order the defendants to make further provision for the plaintiff out of the Ashhurst Settled Fund. To explain why I reject the submission it is necessary to set out the passages from Easterbrook relied on by counsel, in which the High Court summarised the facts in Kidd, where the daughter of the testator applied for an extension of time under s 33(9) of the Family Protection Act 1908-1921 (NZ) which provided that time might be extended if application was made before the final distribution of the estate, and that no distribution of any part of the estate made prior to the application should be disturbed. The High Court said[49]: