This is an application brought by the adult son of the deceased seeking an extension of time within which to make an application to the Court that adequate provision be made for his proper maintenance and support out of the estate of the deceased.
[2]
The deceased Reginald Neal Sweeney died on 25 December 1989. His wife had predeceased him having died on 8 January 1985.
[3]
The estate of the deceased consisted of his home at 9 Loch Street, East Hawthorn which he and his late wife had purchased soon after the Second World War and which is said to be worth between $200,000 and $210,000.
[4]
The deceased was survived by three children the applicant, who is presently aged 62, the defendant Kevin James Sweeney who is presently aged 60 and a daughter Elaine Elizabeth Thomas who is presently aged 58.
[5]
In about 1973 Elaine Thomas and her husband went to live in Western Australia. According to the applicant, thereafter she only had occasional contact with her parents.
[6]
The applicant's evidence in relation to that aspect of the matter is challenged by Mrs. Thomas. She contends that after moving to Western Australia she maintained regular contact with her parents.
[7]
That dispute, so far as it is relevant, can only be determined at a trial of the proceeding.
[8]
In about 1980 Kevin Sweeney had a major falling out with the deceased and thereafter had little or no contact with him until the day on which the deceased died when he visited him in hospital. He did maintain contact with his mother up to the time of her death but did not attend her funeral as he "did not wish to agitate other family members or become upset myself".
[9]
The applicant maintained a strong and loving relationship with his parents throughout their lives and his parents had a close and loving relationship with his children who were the only grandchildren they had any contact with.
[10]
Although there is a dispute concerning this aspect of the matter, the preponderance of evidence is to the effect that in late 1989 and at the deceased's suggestion, the applicant and his children moved into the home of the deceased.
[11]
The applicant and his children have continued to live in the premises at 9 Loch Street, East Hawthorn to the present time.
[12]
Unbeknown to the applicant at that time, on 5 August 1991 Elizabeth Thomas obtained a grant of letters of administration of the deceased's estate. It was not until about November 1998 that the applicant became aware of that fact.
[13]
I find that to be somewhat unusual behaviour on the part of Mrs. Thomas and her solicitor. Having obtained the grant of letters of administration on 5 August 1991 surely it was incumbent upon them to take some steps thereafter to administer the estate; or at the least to have informed the applicant, since at that time he and his sons were living in the house which was the only asset in the deceased's estate.
[14]
At all events, about four years after the death of the deceased in 1989, the applicant found the will of the deceased together with the certificate of title to the Loch Street property, tucked away in the deceased's toolshed.
[15]
By his will the deceased bequeathed his estate "unto my immediate next of kin" and appointed "my immediate next of kin executor of this my will".
[16]
Approximately two years after the applicant found the deceased's will, he took it and the title to a solicitor (who is not his present solicitor) with whom he left them for safekeeping.
[17]
He sought no legal advice in relation to the matter and as he expressed it in his affidavit of 30 October 2000 he and his sons "continued to live, maintain and pay all rates and insurances on my father's home".
[18]
On 16 November 1998 and without any prior warning Mrs. Thomas and her solicitor visited the applicant at the house.
[19]
It was then that the applicant first learnt of the grant of letters of administration.
[20]
On that same occasion the applicant told Mrs. Thomas of the will and title and the name of the solicitor who was then holding them.
[21]
On 23 March 2000 and upon the application of the defendant, the grant of letters of administration was set aside and probate of the deceased's will was granted to the defendant.
[22]
I should have thought that such applications should have been made by the plaintiff as the most senior of the deceased's immediate next of kin. However, nothing turns on the point.
[23]
The applicant had no knowledge of the revocation of the letters of administration or of the grant of probate until he consulted his present solicitors on 28 September 2000.
[24]
He had no knowledge of his entitlement to make a claim that further provision be made for him from the estate of the deceased until he received advice from counsel to that effect on 3 October 2000.
[25]
On 5 October the present application was filed in the Court.
[26]
The financial position of the plaintiff's claim can be summarised as follows.
[27]
The plaintiff is presently employed as a sub-contract plumber. His marriage broke down in the late 1980's and he got himself into severe financial problems at that time.
[28]
On 25 June 1991 the applicant was declared bankrupt.
[29]
In 1994 and with the assistance of moneys which one of his sons had borrowed, he was able to pay a final sum of $38,000 to his trustee in bankruptcy and obtain his discharge.
[30]
The applicant's present earnings vary between $800 and $1,000 gross per week. However, his earnings are dependant upon the amount of work available in the building trade.
[31]
The applicant has no superannuation or any assets of substance apart from an old tradesman's motor vehicle and his tools of trade.
[32]
When he is no longer able to work he will be totally dependent upon the old age pension.
[33]
Needless to say the applicant has no prospect of ever buying his own home.
[34]
As Malcolm, C.J. made clear in Clayton v. Aust[1], on an application such as the present it is not necessary for the applicant to establish that his or her case is strong, nor is it to the point that on one view of the matter it may be said that his or her case is a weak one. All that an applicant is required to establish is that his or her case is an arguable one.
[35]
In my opinion the applicant has satisfied the burden which is placed on him in that regard.
[36]
The circumstances of this case are such as to make it arguable that in providing that the applicant receive no greater share of his estate than his brother and sister as he did, the deceased failed to have regard to the needs of the applicant and failed to make adequate provision for his proper maintenance and support.
[37]
As to whether the applicant has satisfied me that he did not act unreasonably in failing to make his claim within time, the short answer to the question posed is that he has.
[38]
I extend the time within which the applicant may make application that adequate provision be made for his proper maintenance and support out of the estate of the deceased to 31 January 2001.
[39]
In the circumstance I order that the plaintiff and the defendant bear their own costs of this application.