Plaintiff v First Defendant

1 The plaintiff, Geoffrey Leggett, commenced a proceeding by originating motion seeking further provision out of the estate of a deceased person under Part IV of the Administration and Probate Act 1958 (Vic) ('the Act') more than six months after the grant of probate of the relevant will. Accordingly, Mr Leggett applies under s 99 of the Act for an extension of time within which to make his claim.

2 The testator, Margaret Jean Bell, died on 25 February 2010 and probate of her will was granted on 22 June 2010. Mr Leggett was appointed the executor under the will.

3 Mr Leggett's originating motion was filed on 21 February 2011 nearly eight months after the grant of probate. Section 99 of the Act requires a Part IV claim to be made within six months after the date of the grant of probate, although power is given to the Court to extend that time after hearing such of the parties affected as the Court thinks necessary.

4 The relevant principles applicable upon the application for an extension of time were, generally, not in dispute. Those principles have recently been considered by the Court of Appeal in Ansett v Moss,[1] and a number of other decisions in the Trial Division.[2] The Court has a wide discretion in exercising the jurisdiction to extend time. That discretion must be exercised fairly and properly upon relevant materials, and in relation to relevant considerations. As to the relevant considerations to which reference is commonly made, they were recently summarised by Dixon J of this Court in the following terms:

(a) Does the plaintiff have an arguable case? The merits of the plaintiff's case have relevance to the exercise of the Court's discretion as it is obviously futile to let a claim proceed which is flawed or hopeless. Valbe v Irlicht; Borg v Hawke.

(b) What is the period of the delay and any explanation for it? The Court will ordinarily take into account such matters although the discretion conferred by the section is not confined by any rigid rules and even this consideration may not be a requirement in every case. Ansett v Moss & Ors.

(c) Is there any prejudice to the beneficiaries if time is extended? In this context the relevant inquiry is into the prejudice caused by the delay rather than any disappointment which might be anticipated consequent upon readjustment of the interests being transferred under the will in order to make provision for the applicant.[3]

5 Ultimately, the issues in dispute between the parties pertinent to the extension application became rather confined. The defendants, the surviving children of Mrs Bell who are also the beneficiaries of her residuary estate, concede that Mr Leggett's claim for further provision out of the estate is not 'hopeless'. In my view, for reasons I will briefly mention below, this concession is correctly made. Furthermore, the defendants do not point to any prejudice that would flow to them from a grant of the extension of time sought. They do contend, however, that although the period of delay (about two months) is neither particularly long nor particularly short, the reasons for that delay advanced by Mr Leggett are not very satisfactory.

6 But the real arguments pressed in opposition to an extension - or, put another way, put forward as matters to be taken into account in the exercise of my discretion against the grant of an extension - were twofold. Firstly, it was argued that the very small value of the residuary estate (something in the order of about $200,000) should be counted against the grant of an extension. Secondly, it was argued that because Mr Leggett and the deceased (Margaret Bell) each made mutual wills whose terms were effectively the reciprocal of the other, Mr Leggett should not be permitted to pursue an alteration to a dispositive regime which he (and the deceased) consciously and deliberately chose.

7 Although I will briefly make mention below of the facts which are relevant to a consideration of an arguable case and the explanation for delay, I will concentrate on the two arguments of substance which the defendants raised in opposition to the application.

8 Mr Leggett is 58 years of age, single, and now works as an insurance investigator on a less than full-time basis. He earned approximately $16,500 gross last financial year.

9 Mr Leggett had a long standing, de facto partner relationship with the deceased. They commenced living together in 1988. He resides in the principal asset of the deceased's estate which he owned as tenant in common with her. That property, at Lyndhurst, was funded from the sale proceeds of the couple's previous property at Warrandyte. The Warrandyte property had initially been purchased and built by Mr Leggett in 1988 but, from 1997 onwards, after the deceased made a significant contribution to pay off the mortgage on the property, it was held between her and Mr Leggett as tenants in common in equal shares.

10 According to Mr Leggett he and the deceased shared domestic living expenses and he contributed to the deceased's welfare, including as her principal carer and financial provider throughout the last two years of the illness which ultimately led to her death from breast cancer.

11 Mr Leggett continues to reside in the Lyndhurst property. He owns a half share. The other half share is the principal asset of the estate of Mrs Bell. A one half share is estimated to be valued at $200,000. The total value of the estate is said to be in the order of $260,000. Mr Leggett also has approximately $102,000 cash in a bank account, a motor vehicle valued at $2,500, Telstra shares valued at $3,000 and $25,000 in superannuation. Mr Leggett complains of somewhat debilitating headaches which he suffers three to four times per week.

12 The three defendants are the deceased's children, aged 42, 39 and 34 respectively. All are married and own a house subject to a mortgage. Two of them have children. None of the defendants depose to any disabilities. There are a number of affidavits that have been filed on behalf of the defendants which, in substance, take issue with Mr Leggett's perspective on the quality of his relationship with the deceased, and the extent to which he contributed to her welfare and care. Those affidavits paint Mr Leggett in quite a negative light. It suffices to say that those matters are in dispute. Both parties agree that the principal matter in dispute in the claim, on the merits, is the quality of the relationship between Mr Leggett and the deceased.

13 The will of Mrs Bell provides that Mr Leggett have a right to reside in her principal residence, for two years from the date of her death, his remarriage or the sale of his share in the residence, and, upon the termination of his right of residence, that her interest in the residence falls into the residuary estate. That residuary estate is to be distributed to the defendants in equal shares.

14 It is in those circumstances that Mr Leggett claims to have an arguable case for further provision.

15 With respect to delay, Mr Leggett raises three matters by way of explanation. First, the solicitors he had instructed in relation to the probate application did not advise him of the six month limitation period within which to make a claim for further provision under the will. Secondly, whilst it had always been his intention to contact a lawyer about Mrs Bell's will to find out more about his rights in relation to living in the Lyndhurst property for the two year period, he thought that if he contacted a lawyer at the end of the first year that would give him plenty of time to get the relevant advice before his residency right expired. Thirdly, and associated with that last explanation, Mr Leggett said that he did not understand the meaning of being a tenant in common.

16 In considering whether or not Mr Leggett has an arguable case based upon the facts which I have summarised above, one needs to have regard to the statutory criteria for the making of a maintenance order under s 91 of the Act. For present purposes the key issues are whether or not the deceased had a responsibility to make provision for Mr Leggett, and whether or not the proposed distribution of the estate under the will makes adequate provision for his proper maintenance and support. Section 91(4) of the Act sets out a number of criteria to which a court must have regard when making a determination on those issues. In Re Petrucci; Petrucci v Fields,[4] Mandie J conveniently summarised the Court's approach to assessing the strength of any claim under s 91 of the Act, saying:

It can be seen that 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. The amendments to Part IV have not in general abrogated the basic approach taken by the courts to this question for many years. To adapt the language used by Salmond J in Allen v Manchester, the 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.[5]

17 Having regard to the general circumstances which I have described, the principles which a court would need to take into account in determining whether Mr Leggett is entitled to a maintenance order, and the concession which has been made on behalf of the defendants that the case is not hopeless, I am comfortably satisfied that Mr Leggett does have an arguable case.

18 In considering the explanation for delay one has regard to the period of delay, the reason for it and also the relative strength of the arguable case.[6] Bearing in mind those principles and Mr Leggett's explanation for the delay, I do not consider that the period of delay weighs markedly against the grant of an extension of time.

19 That brings me back to the two main considerations which the defendants urged upon me.

20 Counsel for the defendants, Mr Lithgow, argued that this case involves an estate the value of which is at the very low end of the range of estate values commonly the subject of claims before the Court. With that proposition he then referred me to factors enumerated by Warren J (as she then was) in Re Trescowthick[7] relevant to the exercise of discretion to extend the time to bring a Part IV claim. One of those factors, that the Court will more readily grant an extension of time where the estate is substantial,[8] lead Mr Lithgow to argue that, where the estate is insubstantial, that circumstance must count against the grant of an extension of time. I am not persuaded that that proposition follows as a matter of logic. Nor can I see what might be the rationale for such a principle.

21 Mr Lithgow forecast the likely amount of costs to be spent by both parties in contesting the claim and the prospect that such costs might be ordered to be paid out of the estate, thereby largely depleting its value. He appeared to relate the insubstantial size of the estate, and its possible depletion because of costs, as a factor against granting an extension of time. In my view, costs are an entirely separate consideration. Where the burden of such costs might lie, and who should pay them, is a matter for the trial judge after consideration of all of the relevant matters including the justification for positions taken by the various parties at trial: see s 97(6) and (7) of the Act. This consideration is either irrelevant to the discretion to grant an extension of time or, at least in the circumstances of this case, a consideration that does not point either way.

22 The second of the two issues pressed by the defendants was based upon the fact that both Mr Leggett and Mrs Bell jointly consulted a solicitor and made wills which were the reciprocal of each other. That is, by his will Mr Leggett provided that Mrs Bell could live in the 'principal residence' for a period of two years after his death, after which time his interest in that residence would fall into the residuary estate to be distributed to beneficiaries other than Mrs Bell. She did likewise, in the manner I have already described. Thus, it was argued, given that had Mrs Bell pre-deceased Mr Leggett, she would only have received the equivalent disposition from his estate as he is receiving from her estate, he ought not be heard to complain about the adequacy of the provision made to him.

23 Ultimately, the weight to be given to this consideration, if any, can be left to the trial judge. It is sufficient if I say that I accord it negligible weight in considering whether or not I should grant an extension of time. Such an argument does not really address notions of adequate provision for proper maintenance and support. Whether or not the issue has a bearing on the deceased's 'moral' responsibility to make such provision may be questioned.

24 Having regard to all of the considerations I have discussed, including the two primary arguments raised by the defendants, I am of the view that the discretion should be exercised in favour of granting the extension of time sought by Mr Leggett.

25 Accordingly, I will order that the time within which the plaintiff must make application pursuant to Part IV of the Administration and Probate Act 1958 for further provision out of the estate of Margaret Jean Bell, deceased, be extended to 21 February 2011.

[1] [2007] VSCA 161.

[2] Corbett v State Trustees Limited [2010] VSC 481; McCann v Ward & Anor [2010] VSC 452; Sheppard v Heathcote (No 3) [2010] VSC 190; Groser v Equity Trustees Ltd [2007] VSC 27; [2007] 16 VR 101; and Re Trescowthick [1999] VSC 409.

[3] McCann v Ward & Anor [2010] VSC 452, [11].

[4] [2004] VSC 425.

[6] Groser v Equity Trustees [2007] VSC 27, [37]-[38].

[7] [1999] VSC 409.