MATTER : Inheritance (Family and Dependants Provision) Act 1972

Estate of RONALD WILSON HAMILTON late of 129 Pola Street, Dianella in the State of Western Australia, deceased

BERNARD JOHN DELGADO as Executor of the Estate of the late AUDREY MAY HAMILTON the Administrator of the Estate of RONALD WILSON HAMILTON (Dec)

Succession - Inheritance (Family and Dependants Provision) Act 1972 (WA) - Application for leave to file application out of time - Estate distributed - Whether order can be made under s 65 of Trustees Act 1962 (WA) where application for relief filed out of time - Construction of s 65(5) - Effect of proviso to s 65(5)

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6, s 7, s 7(2), s 7(2)(a), s 7(2)(b), s 8, s 9, s 11

Trustees Act 1962 (WA), s 65, s 65(1), s 65(3), s 65(5), s 65(5)(a), s 65(5)(b), s 65(8)

Clayton v Aust (1993) 9 WAR 364

Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257

Regan v Zoller & Ors, unreported; SCt of WA; Library No 6134; 6 December 1985

White v R [1962] HCA 51; (1962) 107 CLR 174

Young v Kestel (As Executor of the Will and Estate of Douglas Tate Young (Dec)) [2003] WASCA 190

Brown v Holt [1961] VicRp 69; [1961] VR 435

Duncan v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 940103; 4 March 1994

Easterbrook v Young [1977] HCA 16; (1977) 136 CLR 308

Gail Beattie as Executrix of the Estate of John Beattie v Beattie [2005] WASC 85

Maclennan v Perpetual Trustees WA Ltd as Executor of the Estate of Mary Fraser Maclennan (Dec) [1999] WASC 261

Re Salmon (Dec) [1981] Ch 167

Tester v William Henry Tester as Executor of the Estate of Barry John Tester (Dec) [2006] WASC 134

1 MASTER NEWNES: This is an application by the plaintiff under s 7(2)(b) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) ("the Inheritance Act") for leave to commence proceedings out of time. The application was opposed by the first and sixth defendants (the "defendants"). The second defendant did not take an active part in the application.

2 The plaintiff, who was born on 21 September 1949, is the only daughter of the testator. She has one brother, Alan Hamilton, the second defendant.

3 The plaintiff says that she had a difficult and unhappy childhood, due largely to the testator's problems with alcohol and his violent behaviour towards her and her mother and brother. Her mother died when the plaintiff was 14 years old and shortly afterwards she left home at the insistence of the testator's then de facto spouse. The plaintiff says that initially she had what could be described as a rocky relationship with the testator, but in the period after she left home she kept in contact with him by way of letters, telephone conversations and visits on special family occasions.

4 The testator re-married in 1966 and the plaintiff says she developed a good relationship with her stepmother ("Mrs Hamilton"). She kept in close contact with the testator and Mrs Hamilton. They did not have any children of their own and, so far as the plaintiff knows, Mrs Hamilton did not have any other surviving relatives.

5 The plaintiff met her future husband in 1969 when she was 20 years old and moved with him to Melbourne. They were married in 1971. The plaintiff gave birth to her son, Miles Pugh, in 1972. The plaintiff says that throughout that period, she continued to maintain close contact with the testator and Mrs Hamilton.

6 On 22 March 1972, the testator became the sole registered proprietor of the property located at 129 Pola Street, Dianella ("the Pola Street house") in which he and Mrs Hamilton subsequently lived.

7 In February 2000, the plaintiff visited the testator who informed her, in the presence of Mrs Hamilton, that he and Mrs Hamilton had signed mutual Wills to the effect that, upon the death of both of them, the testator's entire Estate would pass to the plaintiff and her brother in equal shares. The testator explained that the passing of his Estate to them was his way of giving something back to his children whom he felt he had abandoned and treated poorly over the years, and to assure the plaintiff and her brother of some financial future and independence.

8 The plaintiff says that Mrs Hamilton confirmed that she had also made a Will at the same time and the plaintiff says she saw copies of both Wills, which confirmed what she had been told.

9 The testator died on 22 April 2001 and letters of administration were granted to Mrs Hamilton on 24 August 2001. The testator's Will provided that the whole of his Estate went to his wife if she survived him but, if not, then equally to the plaintiff and her brother or the survivor of them. The property was transferred to Mrs Hamilton, pursuant to the Will, on 29 September 2001.

10 The plaintiff says that, at the time of the testator's death and the administration of his Estate, she was not aware, nor was she advised, of any legal right she may have to make a claim for provision out of his Estate. She says she believed that, on Mrs Hamilton's death, Mrs Hamilton would make provision for her in accordance with the Will that she had been shown. The plaintiff says she did not consider seeking provision out of the testator's Estate, or obtaining any legal advice, because of that belief. She says that, in addition, as the testator's Estate consisted almost entirely of the Pola Street house, in which Mrs Hamilton was living, she would not have wanted to see Mrs Hamilton having to leave her home. The plaintiff says she was not aware that she could have claimed a share of the property to take effect after Mrs Hamilton's death.

11 According to the plaintiff, at the time of the testator's death she was divorced from John Pugh and was living as a sole parent supporting her son. She was then 51 years of age. I note in passing that her son was then 29 years of age and the reason that he continued to need support was not explained. The plaintiff says she was renting a property and living off part-time earnings. Her income was approximately $300 per week and she had no substantial assets. The plaintiff says she was living in straitened financial circumstances.

12 After the testator's death, the plaintiff's relationship with Mrs Hamilton began to break down, although the plaintiff says she continued efforts to keep in contact. Eventually she found she was completely cut off from Mrs Hamilton, although she kept in contact with a close neighbour, Mrs Jackson, with whom she had frequent telephone discussions about Mrs Hamilton's wellbeing.

13 The plaintiff says that at no time did Mrs Hamilton indicate to her that she intended to alter her Will and the plaintiff always believed that she would be provided for upon Mrs Hamilton's death, in accordance with the discussion she had had with the testator and Mrs Hamilton and the Wills she had seen.

14 In late April 2005, Mrs Jackson told her that Mrs Hamilton had died on 22 April 2005. The plaintiff instructed solicitors to enquire as to the location of Mrs Hamilton's Will. The plaintiff says she was shocked to discover that Mrs Hamilton had made a new Will, dated 30 March 2005, which excluded the plaintiff and her brother as beneficiaries. The plaintiff caused a caveat to be lodged against the grant of probate. It seems the executor of the Estate was informed in late July or early August 2005 that the plaintiff intended to bring legal proceedings relating to the Estate.

15 The plaintiff says that she is currently unemployed and living in rented premises. Her only source of income is a disability pension. The plaintiff says she has no substantial assets and limited financial resources. She has recently undergone an intensive course of treatment for hepatitis and is currently in poor health. She says she has been advised by her doctors that she will not be able to work again in the foreseeable future.

16 The plaintiff says that, given her limited financial resources, she obtained legal advice as soon as she was able to procure the necessary funds, which she has borrowed from her brother. It was only after receiving advice that she became aware of her right to make a claim for provision out of the testator's Estate. She instructed her solicitors to enter into settlement discussions with the executor of Mrs Hamilton's Estate but apparently those discussions came to nothing.

17 An affidavit in opposition to the application has been filed on behalf of the sixth defendant ("Mr Jackson"). In that affidavit, Mr Jackson, who is the son of Mrs Hamilton's neighbour, Mrs Jackson, says that his mother's house is almost directly opposite the Pola Street house. Mr Jackson says that he and his wife purchased a property in Joel Terrace, Mount Lawley (the "Joel Terrace property") in February 1995, but in about early 2005 they discussed living closer to his mother, who was then 81 years of age and living alone. Mr Jackson indicated to his mother an interest in purchasing the Pola Street house if Mrs Hamilton wished to sell it.

18 Subsequently Mrs Hamilton told Mrs Jackson that she would be happy to sell the Pola Street house to Mr Jackson if she decided to sell it. Mrs Hamilton told Mrs Jackson that the property had been valued in the range of $290,000 to $310,000. Mrs Hamilton said that Mr Jackson could buy the house from her for $220,000. On a subsequent occasion Mr Jackson was told by his mother that Mrs Hamilton said she was making a new Will and she would include in the Will provision for Mr Jackson to buy the Pola Street house for $220,000. Mr Jackson says his mother told him at that time that Mrs Hamilton had terminal cancer and had only months to live.

19 According to Mr Jackson, his mother subsequently told him that she had driven Mrs Hamilton to a firm of solicitors to make a new Will and that Mrs Hamilton had left a copy of the Will with her. Mr Jackson says his mother showed him a copy of the Will. The Will contained an option for Mr Jackson to buy the Pola Street house for $220,000.

20 On 21 April 2005, Mr Jackson and his wife put the Joel Terrace property on the market. Mrs Hamilton died the following day.

21 On 30 April 2005, Mr Jackson and his wife entered into a contract for the sale of the Joel Terrace property for the sum of $625,000. On or about 9 June 2005, they sent a letter to the executor of Mrs Hamilton's Estate exercising the option to purchase the Pola Street house in accordance with Mrs Hamilton's Will. Mr Jackson says he intended that settlement of the two properties would occur simultaneously.

22 In fact, settlement of the Joel Terrace property took place on 14 July 2005. The executor of Mrs Hamilton's Will wrote to Mr Jackson on 4 August 2005 saying that the sale of the Pola Street house would be delayed until finalisation of court proceedings relating to the plaintiff's challenge to her father's Will.

23 Mr Jackson says that, having sold the Joel Terrace property, he and his wife moved in with his mother. Mr Jackson says that he and his wife will suffer substantial detriment if they are unable to purchase the Pola Street house as provided for in Mrs Hamilton's Will. They had intended to pay cash for it from the proceeds of the Joel Terrace property. Since the Joel Terrace property was sold, the value of that property has increased from $625,000 to approximately $950,000. In addition, to secure a comparable property in Dianella to the Pola Street house is likely to cost at least $420,000. Mr Jackson says that the uncertainty brought about by the plaintiff's application has caused substantial anxiety for him and his wife.

The relevant principles for leave to apply out of time

24 It was accepted by the parties that the principles to be applied on an application for leave to apply out of time are set out in Clayton v Aust (1993) 9 WAR 364 and are as follows:

(1) The discretion is unfettered but is one that is to be exercised judicially and in accordance with what is just and proper.

(2) The onus lies on the plaintiff to establish sufficient grounds for taking the case out of the general rule and depriving those who are protected by it of its benefits.

(3) The time limit in the Inheritance Act is a substantive provision and not a mere procedural time limit. The burden on the plaintiff is not trivial.

(4) It is material when considering the application to consider:

(a) how promptly and in what circumstances the plaintiff has sought the permission of the Court after the time limit has expired;

(b) whether or not there have been negotiations with the defendant. If negotiations were commenced within the time limit and time has run out while they are proceeding, this is likely to encourage the Court to extend the time. Negotiations commenced after the time limit will also aid the plaintiff if the defendant has not taken the point that the time has expired.

(5) It is relevant to consider whether or not the Estate was distributed before a claim was made or notified.

(6) It is relevant to consider whether refusal to extend the time would leave the plaintiff without redress against anybody.

25 Letters of administration for the Estate of the testator were granted on 24 August 2001 and, accordingly, any application by the plaintiff was required to be made within six months of that date. The proceedings were therefore almost four years out of time.

26 As the assets of the Estate of the testator have been distributed, the plaintiff relies upon s 8 of the Inheritance Act, which provides that where the Estate has been wholly or partially distributed the Court may make an order under s 65 of the Trustees Act 1962 (WA) (the "Trustees Act") in lieu of an order under the Inheritance Act. Section 9 of the Inheritance Act requires the Court to have regard to s 65(8) of the Trustees Act in determining whether and in what way provision should be made for a claimant.

27 Section 65 of the Trustees Act applies where a trustee has distributed any assets forming part of the Estate of a deceased person: s 65(1).

28 Section 65(3) provides, in effect, that the Court may order that a person to whom any assets were distributed (or any person who has received the assets from that person other than in good faith and for valuable consideration) pay to the person making the claim a sum not exceeding the value of the assets received.

29 Section 65(5) of the Trustees Act provides as follows:

"(5) Subject to the provisions of subsection (6), an order under this section shall not be made by the Court -

(a) where the claim is an application for an order under the Inheritance (Family and Dependants Provision) Act 1972, unless that application is made within the time permitted by that Act; or

(b) in the case of any other claim, unless the application for that order is made within the time within which the applicant could have enforced his claim in respect of the estate, without special leave of the Court, if the assets had not been distributed;

but, notwithstanding the foregoing provisions of this subsection, the order may be made, with the special leave of the Court, on application made within the time within which the applicant could have enforced his claim, in respect of the estate, with special leave of the Court, if the assets had not been distributed."

"Where a trustee has made a distribution of any assets forming part of the estate of a deceased person ... relief ... shall be denied, wholly or in part, if the person from whom relief is sought received the assets or interest in good faith and has so altered his position in reliance on his having an indefeasible interest in the assets or interest, that, in the opinion of the Court, having regard to all possible implications in respect of the trustee and other persons, it is inequitable to grant relief or to grant relief in full."

31 Section 7 of the Inheritance Act, relevantly, provides:

"(2) No application [for provision out of the estate of a deceased person] shall be heard by the Court unless -

(a) the application is made within 6 months from the date on which the Administrator becomes entitled to administer the estate of the deceased in Western Australia; or

(b) the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.

(3) A motion for leave to file out of time may be made at any time notwithstanding that the period specified in subsection (2)(a) has expired."

32 A question that arises on this application is whether, by virtue of s 65(5), on an application under the Inheritance Act an order can be made under s 65 of the Trustees Act only where that application has been made within the time specified in s 7(2)(a) of the Inheritance Act, or whether it can also be made on an application for which the applicant has been granted leave to file out of time under s 7(2)(b). Plainly, if an order under s 65 of the Trustees Act cannot be made in the latter circumstances, no purpose would be served by permitting the plaintiff to file an application out of time, no substantive relief being available to the plaintiff under s 65 and it being common ground that no other substantive relief is applicable.

33 It was submitted on behalf of the plaintiff that "within the time permitted by [the] Act" in s 65(5)(b) of the Trustees Act means both the time within which the application can be made as of right under s 7(2)(a) of the Inheritance Act and any extended time allowed by the Court under s 7(2)(b). Counsel for the plaintiff referred to Regan v Zoller, unreported; SCt of WA; Library No 6134; 6 December 1985 where Brinsden J, in obiter, expressed the tentative view that "within the time permitted by that Act" in s 65(5) of the Trustees Act means any time within the six months provided for by s 7(2)(a) or within the time provided for by order of the Court under s 7(2)(b). His Honour also went on to say that he did not consider that the proviso to s 65(5) had any application to a claim under the Inheritance Act. I will return to the latter point.

34 Counsel for the defendants, on the other hand, submitted that s 65(5)(a) referred solely to the six-month period specified in s 7(2)(a) of the Inheritance Act and that, accordingly, the proviso to s 65 provides the only possible basis for the making of any order in relation to the assets of the testator's Estate.

35 The defendants referred to Young v Kestel (As Executor of the Will and Estate of Douglas Tate Young (Dec)) [2003] WASCA 190, where E M Heenan J (with whom McLure J agreed) at [74] said, by way of obiter, that s 65(5) of the Trustees Act may give a complete defence to any claim by the appellant in that case for the recovery of assets or their proceeds which have been distributed to beneficiaries because the appellant's application for relief under the Inheritance Act was not made within the time permitted by that Act. That is, it was submitted, E M Heenan J had concluded that "within the time permitted by [the] Act" in s 65(5)(b) of the Trustees Act means within the time specified in s 7(2)(a) of the Inheritance Act.

36 Counsel for the defendants submitted that the effect of the proviso to s 65(5) of the Trustees Act is that, where an application is out of time, an order under s 65 may be made only where the applicant obtains special leave to bring the application. It is therefore necessary in this case for the plaintiff to obtain special leave.

37 Counsel for the defendants did not seek to argue that, as Brinsden J had concluded in Regan v Zoller (supra), the proviso had no application to a claim under the Inheritance Act.

38 It has been observed on other occasions that s 65 of the Trustees Act is not easy to construe. That is a view with which I respectfully concur.

39 Section 8 of the Inheritance Act plainly envisages that an order may be made on a claim under that Act where the Estate of the deceased has been wholly or partially distributed. The power of the Court to make an order in such circumstances, by virtue of s 8 of the Inheritance Act, lies in s 65 of the Trustees Act. The latter provision must, of course, be read as a whole and in that regard the proper construction of the proviso to s 65(5) assumes some significance.

40 As I have mentioned, in Regan v Zoller (supra), having observed that the provision is not at all easy to construe, Brinsden J thought that the proviso to s 65(5) had no application to a claim which is an application for an order under the Inheritance Act. It seems his Honour considered that the proviso applied only to s 65(5)(b) of the Trustees Act.

41 I respectfully agree with that view. The wording of the proviso effectively mirrors the wording of s 65(5)(b) and, in my view, is intended to apply only to that provision. It is not apt, and cannot have been intended, to apply to an application under the Inheritance Act. Under the Inheritance Act, there is no "time within which the applicant could have enforced his claim, in respect of the estate, with special leave of the Court". Under s 7(2)(b) of the Inheritance Act, an applicant who is outside the six-month time limit may obtain leave of the Court to file a claim out of time, but that is quite a different thing. There is no time within which such an application must be made (indeed, s 7(2)(b) permits it to be made at any time) and there is no requirement in the Inheritance Act for special leave.

42 It follows that where an application is made under the Inheritance Act, and the Estate has been wholly or partially distributed, the Court can make an order under s 65 of the Trustees Act only if the application is "made within the time permitted by [the Inheritance] Act". It is therefore necessary to determine whether a claim is "made within the time permitted by [the Inheritance] Act" where the applicant is given leave to file the application out of time under s 7(2)(b) of the Inheritance Act or only where it is made within the six-month period specified in s 7(2)(a).

43 As I understood it, the defendants contended that the reference to "[an] application ... made within the time permitted by [the Inheritance] Act" in s 65(5) of the Trustees Act could only be a reference to the six-month period specified in s 7(2)(a) of the Inheritance Act, as the effect of an order under s 7(2)(b) is not to extend the time permitted by the Inheritance Act, but to enable an application which is made outside the time permitted by the Inheritance Act to be heard by the Court.

44 While on the face of it that argument appears to have some attraction, the effect of such a construction would be that, where the Estate had been distributed, an order in favour of a claimant could only be made under s 65 of the Trustees Act where the claim had been made within six months after the Administrator became entitled to administer the Estate: see Inheritance Act, s 7(2)(a).

45 That, in my view, is a result that could not have been intended by the legislature. The practical result, in respect of claims under the Inheritance Act, would effectively be to restrict the operation of s 65 to those relatively simple cases where the assets of the Estate could be, and were, got in and distributed very quickly after the Administrator became entitled to administer the Estate. I can see no basis for an intention to so limit the operation of the provision. I should add that, in respect of applications under the Inheritance Act, it would also give limited operation to s 65(8), which denies relief where a recipient of assets has so changed their position that it would be inequitable to grant relief to a plaintiff. That provision - to which the Court is expressly required by s 9 of the Inheritance Act to have regard in granting any relief - appears to contemplate dealings with the assets which might extend over some time and, accordingly, to be intended to provide a safeguard against an inequitable application of s 65. It tends to militate against the defendants' construction of s 65(5).

46 I consider that, in the context, an application is "made within the time permitted by [the Inheritance] Act" for the purposes of s 65(5) of the Trustees Act if it is made within the period specified in s 7(2)(a) of the Inheritance Act or any time within which the Court, under s 7(2)(b), permits a claimant to file an application.

47 That accords with the tentative view expressed by Brinsden J in Regan v Zoller (supra), a view which appears implicitly to have been accepted by the Full Court in Clayton v Aust (supra), where Malcolm CJ (with whom Rowland and Franklyn JJ agreed) referred (at 372) with approval to the statement of Brinsden J in Regan v Zoller (supra) that the final distribution of an Estate was no bar to making an application for an extension of time, although s 65(8) of the Trustees Act and s 9 and s 11 of the Inheritance Act may mean that no order extending time should be made.

48 I do not consider that the conclusion I have reached is contrary to any view expressed by the Court in Young v Kestel (supra), whether by way of obiter or otherwise. As it was unnecessary to do so, in that case E M Heenan J expressed no concluded view as to the proper construction of s 65(5) of the Trustees Act. No doubt because the point did not arise for determination in that case, it also seems the Court was not referred to Regan v Zoller (supra).

49 In case I should be wrong as to the proper construction of s 65(5), I will turn to the defendants' argument that, where the assets of the Estate have been distributed, an applicant who is out of time under s 7(2)(a) of the Inheritance Act can only bring a claim with "special leave" of the Court, under the proviso to s 65(5).

50 In Young v Kestel (supra), EM Heenan J observed that s 65(5) of the Trustees Act is unique to Western Australia and its provisions had not been the subject of judicial consideration in this State. In Young v Kestel (supra) it was unnecessary for the Court to consider what is required in order to make out a case for special leave under s 65(5) and on this application counsel were unable to refer me to any authority on the question.

51 My own research has been no more fruitful. However, in the context of an application for special leave to appeal to the High Court, in White v R [1962] HCA 51; (1962) 107 CLR 174, Dixon CJ (at 176) said:

"Efforts over a long period of years to define the effect of the word 'special' have broken down but it remains true that what we are required to look for is something that is special in the case."

52 In that context, the High Court considered that the case was not special unless it involved some point of law of general application and therefore of importance.

53 In a slightly different context, in Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257, McInerney J was concerned with an application for an extension of time within which to appeal against an order dismissing an application under the Administration and Probate Act 1958 (Vic). The relevant rule of the Supreme Court of Victoria required "special leave". McInerney J said:

"I would myself regard the latter phrase as imposing more stringent requirements on an applicant, namely, that there must be something special in the circumstances ... As the High Court said in Boyd v MacPherson [1919] HCA 52; (1919) 27 CLR 245 at 248: 'the term 'special leave' connotes the necessity for making a prima facie case showing special circumstances'."

54 While those comments were made in a quite different statutory context to the present, the notion that "special leave" requires "something special in the circumstances" is, I think, of application in the construction of s 65(5). In my view, the requirement of special leave in s 65(5) means that the case must be attended by special circumstances; that is, circumstances that are unusual or out of the ordinary. The question, then, is whether such circumstances exist in the present case.

55 Counsel for the plaintiff argued that it had been expressly represented to her by both the testator and Mrs Hamilton that if the testator died first Mrs Hamilton would, upon her death, leave the house to the plaintiff and her brother. As a result, when the testator died the plaintiff did not take any steps to obtain legal advice or take any other steps to ascertain or secure any entitlement she may have had to seek provision from his Estate. At the time she was in difficult financial circumstances and would have had a claim of merit against the testator's Estate.

56 The plaintiff is still in difficult financial circumstances and is now suffering from ill health. If she is not entitled to bring a claim against the testator's Estate, she has no other remedy available to her. As a stepchild, she has no claim in respect of the Estate of Mrs Hamilton.

57 It was submitted on behalf of the plaintiff that none of the matters raised by Mr Jackson are relevant to the question of whether leave should be granted. Nothing that the plaintiff has done has caused any prejudice to Mr Jackson. Mr Jackson has acted upon an assumption that he would be entitled to exercise the option contained in Mrs Hamilton's Will and he placed the Joel Terrace property on the market before Mrs Hamilton's death and sold it before probate had been granted. The question of Mr Jackson's position may be relevant on the substantive claim under s 6 of the Inheritance Act, but it is not relevant to the question of leave.

58 It was argued on behalf of the defendants that the plaintiff had no arguable claim on the Estate of the testator. At the time of the testator's death Mrs Hamilton had been his wife for approximately 29 years and was 70 years of age. The only substantial asset of the Estate was the Pola Street house, which had constituted their matrimonial home. Her claim on the deceased's Estate was paramount.

59 It was also submitted that as no claim had been made during her lifetime, Mrs Hamilton had been denied the opportunity of contesting the plaintiff's claim, in particular, the evidence regarding the alleged discussion of the mutual Wills.

60 It was submitted on behalf of Mr Jackson that he had clearly altered his position to his detriment in reliance upon his entitlement to acquire the Pola Street house. Mr Jackson was aware that Mrs Hamilton's death was imminent when she made her Will and he was aware shortly after she signed her Will on 30 March 2005 that an option to acquire the property was granted to him in it. In reliance upon that, he had put the Joel Terrace property on the market and he entered into a contract for the sale of that property after Mrs Hamilton's death. He sold the Joel Terrace property in the expectation that upon the exercise of the option granted to him by the Will, he would be able to purchase the property for $220,000. He would not have sold the Joel Terrace property otherwise. Mr Jackson says he will be severely disadvantaged if the plaintiff is able to bring her claim, having regard to the substantial increase in property prices since the Joel Terrace property was sold.

61 It was further submitted that, in light of the plaintiff's evidence that immediately following her father's death her relationship with Mrs Hamilton began to break down, until the position was reached that she had no further contact with her, it was unreasonable for the plaintiff to assume that Mrs Hamilton would not change her Will. Once the relationship with Mrs Hamilton broke down, the plaintiff could, and should, have sought legal advice to ascertain and to protect any legal rights which she may have had.

62 I consider that in this case the circumstances warrant the grant of leave or, if it is required, special leave, to bring the application out of time. I should say at the outset that, so far as the relevant events concern the plaintiff, I have before me only the evidence of the plaintiff but, as that evidence has not been controverted and is not obviously to be disbelieved, I must for the purposes of this application accept that evidence.

63 On the plaintiff's evidence, the testator told her that he and Mrs Hamilton had made "mutual Wills" and that the survivor of them would leave the Pola Street house to the plaintiff and her brother. Mrs Hamilton confirmed, in the presence of the testator, that if she survived the testator she would leave the Pola Street house to the plaintiff and her brother in her Will. The passing of the property upon the testator's death to Mrs Hamilton under his Will was therefore in accordance with the arrangement and apparently called for no action on the plaintiff's part to assert a claim to the testator's Estate. Any entitlement to provision from the Estate would in due course be effectively fulfilled by the bequest of the Pola Street house to her by Mrs Hamilton.

64 There is no evidence that Mrs Hamilton ever indicated to the plaintiff that she (Mrs Hamilton) would, or might, resile from the arrangement. In light, particularly, of the nature of the promise and the circumstances in which it was made, I do not accept that the deterioration over time of the relationship between the plaintiff and Mrs Hamilton was of itself enough to put the plaintiff on guard as to that prospect.

65 The fact that Mrs Hamilton had resiled from that promise was not apparent to the plaintiff until after Mrs Hamilton's death. I do not think there is anything of a practical nature that the plaintiff could reasonably have done in the meantime to confirm that Mrs Hamilton did not intend to resile from it. Absent an indication of such an intention, the promise was of such a nature that the plaintiff was entitled to assume that it would be adhered to.

66 On the evidence, then, assuming that she would be adequately provided for by Mrs Hamilton's Will, the plaintiff took no steps to pursue any claim against the testator's Estate and the time within which she was entitled to do so as of right elapsed and the assets of the testator's were distributed. That assumption having turned out to be wrong, she now seeks leave to bring a claim against the testator's Estate.

67 It is well established that on an application for leave to bring a claim under s 6 of the Inheritance Act, it is inappropriate to assess the merits of the substantive claim, beyond being satisfied that there is an arguable case for relief. In my view, on the material before me, there is such an arguable case in this instance.

68 I accept that, in the circumstances that existed at the time of the testator's death, Mrs Hamilton was likely to have established, at the least, an entitlement to live in the Pola Street house during her lifetime, but that is not necessarily inconsistent with provision being made for the plaintiff after Mrs Hamilton's death. It is unnecessary to consider further the specific nature that such relief might take. That would be a matter for the hearing of the substantive claim. Whether, and to what extent, the position of Mr Jackson is a relevant consideration on the question of the plaintiff's claim for relief is also a matter for the hearing of the substantive claim.

69 I consider that, on the evidence before me, the plaintiff has made out a case for special leave within the meaning of s 65(5) of the Trustees Act, if it is necessary to do so. If it is not, it plainly follows that the plaintiff has made out a case for leave to make the application out of time.

70 I consider that, on its proper construction, s 65 of the Trustees Act applies where a claimant under the Inheritance Act has been granted leave to make an application for relief out of time under s 7(2)(b) and I am satisfied that such leave should be granted to the plaintiff in the circumstances of this case.

71 If I am wrong on that question of construction and, as contended by the defendants, the plaintiff must obtain special leave to bring an application for relief, I consider that the circumstances warrant the grant of special leave.

72 I will hear the parties on the orders that are appropriate and on costs.