Family Provision Act 1969 (ACT), ss 8(1), 9(2)

Gil-Jones Baker as agent for Ronald Czinner & Co (Defendant)

1. By way of application filed on 27 April 2017, the plaintiff, Ms Zoe Roberts, seeks orders as follows:

(1) an extension of time for bringing her originating application pursuant to s 9(2) of the Family Provision Act 1969 (ACT);

(2) provision to be made in her favour pursuant to s 8(1) of that Act.

2. Each of those applications is opposed by the defendant. With no disrespect, I intend to refer to each of the persons in this decision, other than the plaintiff and the defendant, by their first names.

3. The plaintiff, Ms Zoe Roberts, claims she was the partner of Ms Sylvie Stern (Sylvie) who died on 21 January 2015. The defendant, Ms Daphne Stern, was a sister of Sylvie and is the administrator of her estate. Ms Debra Stern (Debra) was the mother of Sylvie and the defendant, and of Ms Iris Stern (Iris). It appears that Debra owned three pieces of real property and in her will had left one piece of property to each of the three sisters.

4. Prior to her death, Debra needed to be cared for in a nursing home and an agreement was reached that the real property which was to be left to Daphne would be sold and the proceeds used for care of Debra in a nursing home. The sisters agreed that after Debra's death the bond money from the nursing home would be divided between the three sisters, with the end result being that Sylvie and Iris each received real property and one-third each of the cash and Daphne, the defendant, received one-third cash.

5. In consideration for the defendant not making a claim for provision, the sisters reached an agreement whereby Iris renounced her claim for one-third cash, Sylvie took onethird cash but agreed to leave the property which had been bequeathed to her by Debra, to Daphne upon Sylvie's death. That agreement was made in about June 2014.

6. The cash received by Sylvie from her mother's estate was placed into a bank account which she held jointly with the plaintiff. At the time Sylvie died it appears there was about $39 000 in that account, the original balance being around $106 000. Sylvie made a will on 17 June 2014. It appointed the defendant as executrix. That will left the real property to the defendant and recited:

The person who becomes my daily carer will receive 20 per cent of the rest and residue of my estate.

7. Sylvie made a further will dated 19 November 2014. This named Derron Irad as her executor. The real property was still left to the defendant, the change being it named the plaintiff as Sylvie's carer and to "receive 20 per cent of the rest and residue of my estate". The plaintiff and Sylvie were apparently in a personal relationship from about December 2011 until Sylvie's death on 21 January 2015. It seems that from about 2012 they cohabited at one or both of their respective properties. The plaintiff attests they shared domestic chores and expenses.

8. Their joint bank account was used to fund a holiday in New York and to pay household expenses and other matters relating to their joint needs and included a motor vehicle in the plaintiff's name. It appears to have been a loving and caring relationship, and understandably the plaintiff was distressed and grieving after Sylvie's death.

9. There was an agreement that when Sylvie died, all the money in that account was to go to the plaintiff. I am advised the remainder of the money in that account, some $39 000, was disclosed as an asset of the estate and the entire balance of that joint account retained by the plaintiff.

10. The real property was bequeathed to the defendant in accordance with the agreement which the sisters had made. Section 9 of the Family Provision Act 1969 (ACT) states:

(1) Subject to subsection (2), an application for an order under section 8 shall be made within a period of 6 months after the date when administration in respect of the estate of the deceased person has been granted.

(2) The Supreme Court may, after hearing such of the persons affected, as the court think necessary, extend the time within which an application may be made under section 8.

(3) An extension of time under this section may be granted -

(a) on any condition that the Supreme Court thinks fit; and

(b) whether or not the time for making an application has ended.

(4) An application for the extension under this section of the time within which an application for provision out of the estate of the deceased person may be made under section 8 shall not be made after the estate of the deceased person has been lawfully and fully distributed.

(5) An application for provision out of the estate of a deceased person shall, for this section, be deemed to have been made on the day when the notice of motion or other document initiating the application is filed.

11. Thus s 9(1) of the Act governs the time within which any application for an order under s 8 of the Act may be made. The present application was made on 16 September 2016. Sylvie died on 21 January 2015. The order for administration of her estate was made on 3 July 2015. Pursuant to s 9(1) of the Act, any application for an order under s 8 needed to be made by 3 January 2016, thus some 14 months had elapsed between the order for administration and the application.

12. The plaintiff bears the onus of showing sufficient cause for an extension of time to be granted. The plaintiff has filed affidavits dated 12 September 2016, 26 January 2017 and 27 April 2017 in support of her application. She appeared in person and she addressed me on the matters she wished to make clear to the Court. It appears that she was quite understandably upset and grieving following Sylvie's death. She sought medical assistance and consulted a Dr Res who provided a medical report in April 2017, stating he had been treating her in February 2015 with a severe grief reaction and that she had been having treatment, which was unspecified, since that time.

13. She also apparently saw a counsellor between February 2015 and April 2015 on four occasions. The plaintiff is currently 36 years of age. I understand she has full-time employment and owns her home, subject to mortgage and also owns a motor vehicle.

14. After Sylvie's death, it appears the plaintiff was of the belief she was the beneficiary of 20 per cent of Sylvie's estate. She attempted to contact the defendant by phone and by email but said she had no response. She contacted Mr Graeme Nettle, the Stern family solicitor, who had drafted Sylvie's wills and was advised the will had named her as a beneficiary of the rest and residue of the estate, which meant she received nothing, as there was no rest and residue.

15. An email from Mr Nettle to the defendant, of 25 March 2015 stated:

I note from your email to me yesterday, that you are aware Zoe Roberts has made a family provision claim for 20 % of the net estate.

16. That is apparently not quite correct as no formal claim had been filed but clearly had been foreshadowed but for 20 per cent of the net estate, not 20 per cent of the residue. The plaintiff then consulted Messrs Snedden, Hall and Gallop solicitors. On 17 April 2015, they wrote to Mr Nettle in respect of the joint bank account. The letter noted:

On Sylvie's passing the account was transmitted to our client, it is of course an asset for the purpose of consideration of the overall estate.

17. It noted the motor vehicle to be in the plaintiff's possession and in her name and noted it was "questionable as to whether it forms part of the estate." On 6 May 2015, the plaintiff's solicitors wrote to her advising:

A decision now needs to be taken as to the best way to proceed with your claim. We have drafted the application under the Family Provision Act but there is also the question of whether the will was truly reflective of Sylvie's intentions. Would you kindly make an appointment.

18. On 14 May 2015, a further letter to the plaintiff noted:

[I] ... confirm you would like me to continue with preparation of your application under the Family Provision Act. Given the indications outlined in correspondence between solicitors, I am under the impression the answer will be "no". This leads to you making a clear cut choice, either accept what you have been given under the terms of the will, including the acquisition of assets during the latter part of 2014, or seek an order from the Supreme Court for further provision.

19. By letter of 23 July 2015, the plaintiff was advised by her solicitor:

we prepared the documents in support of that application however you have instructed me that you do not wish to proceed for further risk, further legal costs, or possible adverse findings.

20. An invoice was forwarded to the plaintiff for work done, including preparing the draft application.

21. In September 2015, apparently following advice that the defendant was not prepared to make any offer of settlement, her solicitor noted the plaintiff had instructed him not to take the matter any further. It seems, she took no further action thereafter until this application was made on 16 September 2016, a lapse of one year. Any application needed to be made by 3 January 2016 to fall within the time limits, as stated above at [11].

22. The explanation provided by the plaintiff, for delay, is principally in respect of her fragile mental state and her grief following Sylvie's death, as well as her assertions of lack of funds to instruct solicitors further.

23. In respect of her mental state, the medical evidence, as noted before, is brief and consists of her general practitioner Dr Res attesting to a severe grief reaction in February 2015, and that she had treatment from that time. There is no reporting of any psychiatrist she may have seen and the GP report really gives me no detail in respect of continuing treatment or medication.

24. The plaintiff's evidence is that she was working in that time and that she has been diagnosed with major depression and is on medication, although as noted, the medical evidence is silent in respect of the nature of treatment or any diagnosis.

25. I do not doubt her grief at the time of Sylvie's death, or at her loss. Her friend Ms Madison Ashurst attests to the domestic relationship between the plaintiff and Sylvie and notes it to have been a mutually loving and supportive relationship.

26. She stated that the plaintiff had instructed her solicitors, Snedden, Gallop and Hall, in respect of making a claim on the estate but had decided not to pursue the claim because of her emotional distress.

27. Grief and emotional distress, following the death of a loved one or partner is a normal human reaction, however, the lack of supporting medical evidence as noted before, does not assist this claim.

28. The explanation the plaintiff has advanced for the delay relates principally to her grief reaction and her lack of funds. Her medical problems of depression do not seem to have prevented her from working and continuing with her life. Medical reporting, providing support during the period from at least April 2015 when she consulted solicitors on her own behalf until the time of lodging the application, may have provided her with some assistance in this regard.

29. It seems she was able to give proper instructions, including finally advising those solicitors that she did not wish to further pursue the matter. I accept there was a cost involved, yet no explanation is advanced in regards to the $39 000 from the joint bank account, to which she had access, and I understand she has full-time employment, yielding approximately $75 000 per annum. She owns property, which she has recently purchased, and has a mortgage. A motor vehicle was purchased for her from the joint account. She was clearly aware she could make the application at the time she consulted the solicitors, yet chose not to continue, even though the application had been drafted at that stage.

30. The defendant submits that there has been some disentitling behaviour on the part of the plaintiff which I should take into account in declining to exercise my discretion to permit this application to be brought out of time.

31. It is clear the plaintiff is of the opinion it was always Sylvie's intention to leave her 20 per cent of the estate and not 20 per cent of the rest and residue of the estate. She was aware that Sylvie and her sisters had made an agreement that the property Sylvie had inherited from Debra, her mother, would be left to the defendant and the defendant gave up any claim for further provision from her mother's estate, noting the defendant had sold a previous property with the proceeds used to fund her mother in a nursing home.

32. Sylvie's wills made in June 2014 and November 2014, were in, essentially, the same terms, save for the first will naming the "person" who becomes my daily carer, will receive 20 per cent of the rest and residue of the estate, and the second will nominates Zoe Roberts to be that "person". But it still notes her to receive 20 per cent of the rest and residue of the estate.

33. It is submitted by the defendant that had Sylvie intended to leave 20 per cent of the estate to the plaintiff, then that would be the phrasing in the second will and there is real force in that submission.

34. I am advised by counsel for the defendant, there is no residue, the sole asset being the property and the estate was lawfully distributed after the grant of administration on 3 July 2015, and thus, 20 per cent of the residue amounts to nothing.

35. The plaintiff contends the second will does not reflect Sylvie's wishes in respect of her being a beneficiary. She said she was aware of the agreement made between the sisters but that Sylvie did not think it a fair agreement and said Sylvie had instructed her solicitor to include Zoe as a beneficiary of her will as to 20 per cent of the estate.

36. There is no evidence to that effect. There is an email in evidence sent by Sylvie in September 2014 to her solicitor who had prepared both wills which says:

In regards to Daphne worrying about my will and it still bequeathing my little house to her, she really has nothing to worry about. It would be nice for her and I would be happy for her to feel more safe in her life, despite all that she and my elder sister have said to me, and it's keeping in the family which I feel strongly about.

37. That seems to me to reflect a clear intention on Sylvie's part and reflects the agreement which had been entered into.

38. The second will did make the amendment but only as previously noted and not any further when it would have been entirely possible to have done so if that was Sylvie's intention.

39. The defendant's counsel submits there is prejudice to the defendant if an extension of time is granted as the estate has already been distributed. It was a small estate and the real property, the only asset, has been sold.

40. The proceeds from the sale were $276 294 after the payment of the estate expenses and the defendant has received those funds. I am advised the defendant is now 61 years of age and she does not own her own home or any real property and her situation is thus less advantageous than that of the plaintiff.

41. Counsel for the defendant submits there is a real prejudice to the defendant if an extension of time is granted after weighing all matters, submitting there is no adequate explanation for the delay, noting that between September 2015 when the plaintiff's solicitors were advised, the grant of administration had been made and the solicitors for the defendant had been instructed to accept service of any claim, and in January 2016 when time ran out.

42. Further, between January 2016 and September 2016, when this application was filed, there is no other explanation forthcoming and in that period the defendant has gone about her life on the basis this claim has been abandoned.

43. This claim is for an extension of time for bringing the application pursuant to s 9(2) of the Act. The plaintiff's explanations for the delay, namely, her emotional state and lack of funds, do not sit easily with the inadequate medical evidence before me. The fact of her personal circumstances, including the asset of joint bank account, her home and motor vehicle ownership, and the fact that she clearly sought legal advice, a draft application having been prepared and the instructions given not to proceed with the application and it being withdrawn, lead me to a view that I should not grant an extension of time in this matter.

44. I think to do so would occasion prejudice to the defendant, noting her personal circumstances and the fact of the estate having been distributed prior to this application being made and thus an expectation on the defendant's behalf that no claim would be pursued. I thus decline to make the orders sought.

The plaintiff is of the belief that the will made by Sylvie in November 2014 did not properly reflect her wishes or intentions. That is a separate issue. She submitted to me that the will was not written as Sylvie had intended but, of course, that is not a matter for me to determine on this application but rather a matter she would need to pursue in other proceedings.

45. As well, the plaintiff is of the view that the defendant was not entitled to receive the personal belongings of the estate. That claim is not otherwise specified. It may be the plaintiff can pursue a claim against the drafter of the will if it can be shown it does not reflect Sylvie's wishes, but that is not a matter for me to determine.

46. Further, the plaintiff apparently paid $1000 for a funeral wake. The estate will not reimburse that amount on the basis that it was not arranged by the estate but was a private function. I think that is an unfortunate situation.

47. The plaintiff was clearly grieving at that time and wanted to have a wake in remembrance of Sylvie. That seems to me to be a natural response and to my mind is a cost which ought to be reimbursed, although I can make no order to do so. It is merely a recommendation.

48. As noted above, I do not grant an extension of time for the filing of this application, noting the reasons previously given. I therefore dismiss the claim for extension of time and I decline to make orders in respect of the second order sought.

49. The question of costs be reserved at this time but it be indicated that the plaintiff should pay her own costs and the costs for the defendant should come from the Estate.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford.