Valbe v Irlicht [2001] VSC 53

Supreme Court of Victoria|2001-03-08|Before: Gillard J

PART IV - ADMINISTRATION AND PROBATE ACT - testator's family maintenance - s.99 - extension of time - principles - merits - no arguable case - application refused.

Application by summons in a proceeding instituted by originating motion by the plaintiff seeking an order extending time pursuant to of the ("the ") to enable her to bring a proceeding pursuant to of the .

On 30 November 1990, Mary Oniman ("the deceased") executed her last Will. She subsequently executed three codicils during the period from November 1993 to November 1996.

Probate of her last Will and codicils was granted by this court on 22 April 1999 to the executor, Tadeusz Irlicht, ("the defendant") who is defendant in this proceeding.

The plaintiff, Tsirlia Valbe, ("the plaintiff") is an elderly woman. She is no relation of the deceased.

The Will and codicils made no provision for her.

The estate was valued at the date of death in the sum of $671,211.41. Some $160,000 has been distributed and at present the value of the estate is approximately $600,000.

The estate was left to four nephews and nieces who reside overseas.

The plaintiff contends that she is entitled to a share of the estate of the deceased and wishes to make application pursuant to Part IV of the Act. She is now out of time. I interpolate to note that the originating motion in fact makes the application pursuant to Part IV although out of time.

The first part of s.99 of the Act provides -

"No application shall be heard by the court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will or of letters of administration (as the case may be)."

It follows that the plaintiff should have made her application on or before 21 October 1999.

Section 99 goes on to provide -

"Provided that the time for making an application may be extended for a further period by the court after hearing such of the parties affected as the court thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall be made before the final distribution of the estate and no distribution of any party to the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon."

The plaintiff's application for extension of time is dated 11 February 2000. It follows that there has been a delay in the order of some 16 weeks. The undistributed part of the estate is valued at approximately $600,000 which would be more than sufficient to meet the claim if successful. The distribution to date has been to the four beneficiaries equally. Hence, there has been no preference and any order would be met equally by the beneficiaries.

In support of her application the plaintiff has sworn a number of affidavits. Her husband and a solicitor formally acting for her, Michael Oliver, also have sworn affidavits.

The defendant has sworn a number of affidavits. An accountant, Ida Olshina, who was engaged by the deceased to assist her with financial matters also swore an affidavit.

Some of the facts are in dispute. The plaintiff asserted that the deceased made a number of promises to her, to the effect that she would look after her in her will, that she provided substantial services to the deceased during the last 12 months' of her life for which she was not remunerated and she and the deceased executed an agreement concerning the services and a proposed provision in the will. These facts are disputed by the defendant. No deponent was cross-examined and the court is not in a position to resolve the disputed questions.

For present purposes I will proceed on the assumption that the plaintiff will be able to prove the facts as alleged by her and her husband.

The principles which guide the court on an application pursuant to s.99 have been discussed in a number of cases in this State.

First, it is noted that a wide discretion is given to the court and the Act does not specify any criterion to be considered in the exercise.

Secondly, the application must be made prior to the final distribution of the estate. Where a distribution has taken place it cannot be disturbed which means that the rights of the beneficiaries may have become conclusive and indefeasible. It follows they would be beyond adjustment. If distribution has been made to some beneficiaries but not others then the latter beneficiaries may suffer a prejudice if time is extended because the interests of the other beneficiaries cannot be disturbed. Prejudice is no doubt a weighty factor in the court's consideration. See Re Barrot deceased [1953] VicLawRp 45; (1953) VLR 308 at 312. Prejudice of that nature has not and will not occur in the present matter.

The authorities also establish that the court should take into account the period of delay and whether the excuse is a reasonable one. Any prejudice which cannot be overcome, if time was extended, is a matter of some weight.

Further, the cases establish that the onus is on the applicant to show some reason for the exercise of the discretion to extend time.

In the case of Re Guskett [1947] VicLawRp 28; (1947) VLR 212, Herring CJ at p.214 described the court's approach as follows -

"Now, s.147, as already indicated, commences with a prohibition against the hearing of an application, unless it is made within the time specified. It is clear, therefore, that the legislature intended that applications should be made within this period. The proviso to the section must be read in the light of its context, and, when so read, it does no more than enable the court to grant an indulgence to an applicant in appropriate circumstances. It is for the applicant to make out a case that will justify the granting of the indulgence sought. He has to show the reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts, but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As, moreover, he is seeking an indulgence, he should apply promptly for an extension of time."

See remarks of High Court in Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509 at 511. The High Court emphasised factors which entitled the applicant to "a brief indulgence" to hear his claim and the absence of prejudice.

Whether or not the strength of the claim by the applicant under Part IV is a relevant matter to take into account is a moot point. A number of judges have held that it is irrelevant.

In Re Guskett deceased, supra at p.215, Herring CJ said -

"But the strength of her claim for relief under Part V cannot, I think, be taken into account, when one is considering whether or not the discretion to extend the time should be exercised in her favour. Were it otherwise, an applicant with a strong case on the merits might always delay beyond the period allowed, and then demand an extension of time on the ground that a manifest injustice would result from a refusal to grant such an extension. This would result in the court's exercising its discretion in such a way as to nullify the prohibition contained in s.147 and so defeating the intention of the legislature as appearing therein that application should be made promptly."

That view has been followed in Re Barrot supra, Nencke v Nunn (1967) WAR 79 and Re Coates, unreported decision of the Supreme Court of Victoria delivered 16 June 1955.

I must say I have some difficulty with the learned judge's reasoning.

There is nothing in s.99 which precludes consideration of the strength of the claim and in my opinion a strong claim which is denied when the period of delay is relatively short and there is no prejudice suffered by any person if time was extended would be to cause an injustice.

In Re Barrot deceased supra at p.312, Sholl J referred to the New Zealand cases which do clearly recognise the relevance and importance of the strength of the case.

In my opinion the strength of the case is an important and relevant factor to take into account. The period of delay and the reason for it, whilst important, are not factors which carry much weight in the absence of prejudice and in the face of a strong claim. Justice is the paramount consideration and to deny a person an extension of time in the face of a strong claim could amount to an injustice.

The cases also demonstrate that an applicant will fail in an application if the case under Part IV is hopeless.

In Re Walker [1967] VicRp 116; (1967) VR 890 at 892, Lush J said -

"There are dicta in those cases to the effect that on an application for extension of time the court is not concerned to consider the strength of the substantive application. But to say that an extension will not be granted merely because the case is unanswerable is not to say that an extension will be granted without regard to the fact that the case is groundless. ... The Queensland case of Re Terlier, (1959) Q.W.N. 5 in my respectful opinion correctly states the proposition that if it is improbable that the action will succeed, an extension of time should not be granted. This improbability may stem either from the condition of the estate ... or from the facts relevant to the plaintiff's claim, or from both, as in Terlier's case."

In Re McPhail [1971] VicRp 65; (1971) VR 534 at 548, Gowan J stated the test as - "it cannot be said there is no prospect of success, and it is right to say there is an arguable case".

Mr Irlicht frankly conceded that no prejudice would be suffered by the beneficiaries or any other person if time was extended. He did draw attention to the fact that currency fluctuations may have some impact on the final distribution to the beneficiaries who live overseas but in my opinion one cannot say at this time whether that is likely to cause any prejudice. The court can take judicial notice that the currency fluctuates both up and down and a further delay may in fact result in the beneficiaries obtaining in their own country a larger sum because of changes in currency.

In my opinion, justice is the most important factor to take into account in an application such as the present and if, after taking into account all circumstances justice demands that there should be an extension of time then, in my view, time should be extended. Factors which would be clearly relevant to the question of justice is the strength of any claim of a potential plaintiff and whether prejudice would be suffered which could not be overcome, if time was extended.

As I have already stated the plaintiff was not related to the deceased. Prior to 20 July 1998 a limited category of persons were entitled to bring a proceeding under Part IV. The law was changed by the Wills Act 1997. It came into operation on 20 July 1998.

The new s.91 of the Administration and Probate Act changed the nature and consideration of a claim under Part IV in a number of ways.

Two of them are, first, it allowed claims to be made by any person who qualified as "the person for whom the deceased had responsibility to make provision."

Secondly, the new s.91 set out in some detail what the court must take into account in considering whether or not the deceased made adequate provision for the proper maintenance and support of the person by reason of the distribution effected by the will or on an intestacy.

It is not surprising that lawyers may not have been aware of the changes or more importantly fully appreciated the extent of them.

The excuse given for the delay is that the plaintiff was not aware that she could bring a claim under Part IV until she saw counsel in February 2000.

Mr Irlicht submits that the excuse given for the delay is not acceptable and that upon the evidence placed before the court at present, the claim is baseless and would have no prospect of success. In other words it is improbable that the action would succeed - see Re Walker supra.

He also submits that as a matter of discretion the plaintiff's attitude to the application and her failure to comply with directions' orders should result in the application being refused.

Many cases involving the past legislation have established that on a proper construction of the legislation, the plaintiff must establish that the will failed to make adequate provision for the proper maintenance and support of the plaintiff in circumstances where there was a need for maintenance and support and a moral obligation on the part of the deceased to make provision for the plaintiff. It was necessary for a plaintiff to prove that he or she had a claim on the bounty of the deceased and the deceased should have made provision to discharge that obligation.

It will be necessary to consider whether the new s.91 has changed the law.

This application is unusual in that in addition to her claim under the Administration and Probate Act she also seeks relief or remedy by seeking answers to questions as to whether the deceased was indebted to the plaintiff at the date of her death. This question is based upon an alleged agreement between the deceased and the plaintiff dated 22 January 1998, alternatively, whether the plaintiff has a good work and labour claim against the estate and finally, whether the plaintiff has any interest in a property known as Flat 4, 310 Inkerman Road, Balaclava.

It is questionable whether the relief sought is appropriate in a proceeding brought by origination motion. The claims appear to be common law claims and in addition a claim based upon some form of proprietary estoppel. However, other than to note the claims I put them to one side as being of little relevance. What relevance they have seems to be found in the fact that the claims suggest an uncertainty as to what is the appropriate claim and this reflects on the strength of the Part IV claim.

The plaintiff and the deceased met in 1990 and in subsequent years became good friends. The deceased's husband had died in about 1988. The plaintiff would visit the deceased at her home once or twice a week. She observed that she was a lonely person. The deceased enjoyed her company. She had no family in Australia.

The plaintiff performed services for the deceased such as shopping, cooking, cleaning and similar tasks and the deceased paid her $20 per hour. From about 1997 the deceased talked about entering into an agreement in relation to the services. In January 1998 when the plaintiff and her husband were at the flat there was a discussion concerning the agreement. It is asserted by the plaintiff that the deceased dictated the main terms of the agreement and it was signed by the parties. It is written in the Russian language.

The terms were, inter alia, that the plaintiff would move in to the deceased's flat and care for her on a full-time basis and was to arrange for her burial and notification of her death to her family. The plaintiff was to assist the deceased with her day to day affairs which would include shopping, cleaning, washing et cetera and would be a companion to the deceased.

It was part of the agreement that she would include the plaintiff in her Will. She said that if she changed her Will then the plaintiff would be entitled to charge on an hourly basis for the work done at $20 per hour.

The plaintiff moved in to the flat. This is disputed.

The plaintiff has sworn that the deceased showed her a codicil to her Will in which she stated that the plaintiff was to be a beneficiary. This document has not been found. The allegation of another codicil is also hotly contested.

According to the plaintiff, the deceased and the plaintiff lived happily together and remained good friends.

The deceased went to hospital on 27 October 1998 and remained there for some two months until her death. The plaintiff visited her on a daily basis.

After the funeral the plaintiff continued to reside in the flat but was told some days later by the deceased's accountant that she was required to move. There is a dispute concerning these facts.

The plaintiff saw a solicitor, Goldi Kelman. The solicitor required a payment of $1,000 and then stated that in any event could not assist. Eventually she was told they did not do the work of the kind required and she was referred to other solicitors.

She did not approach other solicitors until December 1999. This was nearly one year after the death. Time had expired under Part IV. The plaintiff states that she was advised by a solicitor and a barrister in February 2000 that she had a claim under Part IV. This was the first time she appreciated she did have a claim. She told her solicitors to make a claim at once. They did.

She states that she lives in a Housing Commission flat which she rents for $55 per week. She owns no significant assets and has no moneys or shares. She receives a pension of $371 per fortnight.

The agreement dated 2 January 1998 and allegedly signed by the deceased has been translated and provides, inter alia, that the plaintiff was to provide continuous care for the duration of her life, would arrange burial in a Jewish cemetery and would inform her relatives of her death. The agreement went on to provide -

1. To include Tsirlia Valbe in my will (she herself refuses to be included in a full will).

2. To give to Tsirlia Valbe the right to share my flat with me (if she wishes to do so) and also the right to have the flat at her disposal after my death.

This agreement is made as a guarantee for Tsirlia Valbe.

If I Mary Oniman breach this agreement or if this agreement is terminated I, Mary Oniman, shall pay to Tsirlia Valbe $20 for every hour as calculated from the date of signing this agreement to the date of its termination."

On 29 July 1999, the plaintiff sent a letter to the defendant executor. The opening paragraph provides -

"My solicitor advises me to direct my claims regarding my agreement with late Mrs Mary Oniman dated 2/1/1998 to you before going to court. I agreed to work for Mrs Mary Oniman only after we both signed an agreement on 2/1/1998 (a copy is attached). When Mary gave me my copy of the agreement she assured me that it was also included in her will and I believe her."

It can be seen from the foregoing that on the plaintiff's version the plaintiff resided in the premises of the deceased with her for something less than ten months. The last two months of her life the deceased was in hospital. The deceased's accountant denies that the plaintiff lived with the deceased and deposes that the deceased paid the plaintiff cash of $150 per week for her services.

It is also clear that from at least July 1999 the plaintiff was receiving legal advice. It would appear that the claim that was being made by and on her behalf was the enforcement of the agreement and maybe a claim for services rendered. No mention was made of a claim under Part IV.

Her letter of 29 July concluded by working out what she said she was entitled to, namely, 380 hours at 24 hours a day equals 9,120 hours which when multiplied by $20 gave a total of $182,400.

On 22 December 1999, the plaintiff went to another solicitor, Messrs Fogarty Bayard and Oliver. A letter was written that day and again the claim is made on the basis of services rendered for which payment should be made. There is no reference to any claim for provision pursuant to Part IV of the Act. As the evidence reveals the plaintiff only became aware of that possible claim in February 2000 and it was shortly thereafter, namely, 11 February that the originating motion was issued.

Mr Michael Oliver, the solicitor, swore in an affidavit that he first got instructions on 22 December 1999 and wrote a letter to the defendant's solicitors. It was in this letter that the claim was made for services rendered. He briefed Mr Richard Cook of Counsel who requested a conference and in early February 2000 Mr Cook advised that there was a possible claim under Part IV of the Administration and Probate Act. The solicitor frankly admitted that he did not advert to making a claim under the Administration and Probate Act.

It follows that the plaintiff's excuse for failing to bring the application within time was because she did not appreciate she had a claim under Part IV of the Act and by the time she consulted another solicitor time had expired. This solicitor, Mr Oliver, moved with some expedition and issued a proceeding within six weeks of receiving instructions. On the other hand, it cannot be overlooked that the plaintiff was in the hands of another solicitor and there was no suggestion of any claim under Part IV. The claim that was made on her behalf was for services rendered.

Taking into account the recent amendments to the Part IV legislation and in particular the fact that those who may successfully bring an application are not confined to a family relationship, the reasons given by and on behalf of the plaintiff in my view provide an adequate basis for a prima facie extension of time. Ignorance of a right to claim has been accepted as a reasonable excuse in the past - see Re McPhail, supra at p.548. The absence of any prejudice is also a matter of substance.

It is important that the plaintiff establish that her claim is arguable, in other words, that it is not improbable that she would succeed.

It is necessary to consider the legal principles which would apply on such an application and in particular whether the new s.91 has changed the law.

The new provision now permits any person to make application to obtain a provision or further provision out of the estate of the deceased. Prior to the provision coming into operation on 20 July 1998 only certain defined persons could obtain provision or further provision out of the estate.

The mere relationship under the old legislation did not establish a right to provision or further provision. It was a fact that had to be established that the applicant was in a particular relationship with the deceased. The applicant still had to prove an entitlement to provision or further provision out of the estate.

Under the new legislation any person may obtain an order but it is still necessary to prove, inter alia, that there was a relationship between the deceased and the applicant, namely, one which imposed a "responsibility to make provision". See s.91(1).

Legislation making provision for the support of family members of a testator was first passed in Victoria in 1906. Thereafter it was amended from time to time and by reason of the 1937 amendments the Victorian legislation was the same as legislation throughout Australia and New Zealand.

Over the years much case law has resulted in well accepted principles applying to an application under Part IV.

The new section in my opinion has not altered the principles established by the cases.

It is still necessary for the applicant to prove that the distribution of the estate effected by will and/or as a result of the statutory provision on an intestacy, "does not make adequate provision for the proper maintenance and support of the person" who is making the application or on whose behalf the application is made. See s.91(3).

What the new section does is enumerate relevant matters to be taken into account not only on whether the deceased had a responsibility to make provision for the person, but also with respect to the questions of adequate provision, quantum and any other matter related to the application.

The language is mandatory and requires the court to have regard to the matters enumerated. See s.91(4)(e).

In my opinion none of the enumerated matters add any matter which would not have been taken into account in an application under the old provision.

However, there is one important change to the law and this is found in s.94(c) which makes admissible in evidence "of the deceased person's reasons for making the dispositions in his or her will (if any) and for not making proper provision for the applicant, whether or not the evidence is in writing."

This laid to rest the controversy in the cases as to the extent which the court may have regard to statements made by the deceased which explained the reasons for the terms of the Will. See Re Paulin (1950) VR 462, Pontifical Society for the Propogation of the Faith v Scales (1962) 107 CLR 924, Re Buckland [1967] VicRp 1; (1967) VR 3 at p.6 and Hughes v National Trustees [1979] HCA 2; (1979) 143 CLR 134.

Another change to the law was the repeal of s.96(1) which empowered a court to refuse an application "if the character or conduct of the applicant" disentitled him to any provision. Instead, non character and conduct are relevant factors to be taken into account - see s.91(4)O.

Section 95 has also been repealed but the matters addressed in that section are included in relevant matters in s.91(4) - see (g), (h) and (l).

Turning then to the present application the plaintiff has to establish that it is not improbable that the proceeding will succeed.

She has established that the Will does not make any provision for her. However, the real and important issue is whether in the circumstances the deceased had any responsibility to make provision for her.

The principles which have guided the courts over the last 90-odd years are found in the New Zealand case of Re Allardice (1910) 29 NZLR 959 at 972 where the court said -

"It is the duty of the court so far as is possible, to place itself in all respects in the position of the testator, and to consider whether or not, having regard to all existing facts and surrounding circumstances, the testator has been guilty of a manifest breach of that moral duty which a just, but not a loving, husband or father owes towards his wife or towards his children, as the case may be. If the court finds the testator has been plainly guilty of a breach of such moral duty, then it is the duty of the court to make such an order as appears to be sufficient, but no more than sufficient to repair it."

In Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494 at 509 Dixon CJ said -

"From that time the views expressed in Re Allardice have provided the source whence the principles derived which have guided the courts in the administration of the Acts. They were re-stated by the Privy Council in Bosch's case and since then they have again been considered in Mudford v Mudford."

In Bosch v Perpetual Trustee Co Ltd (1938) AC 463 at 478-9 the Judicial Committee said -

"Their Lordships agree that in every case the court must place itself in the position of the testator consider what he ought to have done in all the circumstances of the case, treating the testator for that purpose as wise and just, rather than a fond and foolish, husband or father."

Their Lordships adopted with approval what was said by Salmond J in In Re Allen (deceased), Allen v Manchester (1922) NZLR 218 at 220 -

"The Act is ... designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and desserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty."

The principles that I have set out have to be adapted to the position of the testator and the obligation, if any, to the person who is making the application or on whose behalf the application is made.

What moral obligation did the testator owe to that person? What claim did that person have upon the bounty of the testator?

In my opinion the deceased in the present matter did not owe any obligation to use her testamentary powers for the purpose of making provision after her death for the support of the plaintiff. In my opinion the plaintiff did not have any moral claim upon the bounty of the deceased.

In coming to that conclusion, I have proceeded on the basis that the plaintiff could prove all the matters which have been deposed to by her and on her behalf in support of the application.

The facts show that for some years prior to January 1998 the plaintiff performed services for the deceased for which she was paid. The services included shopping, cooking and similar tasks and she was paid $20 per hour. The agreement was executed in January 1998.

Each party was to provide benefits and services to the other party pursuant to the agreement. The deceased for her part provided board and lodging if the plaintiff wished to reside with her. The plaintiff says she did reside with the deceased. The plaintiff for her part was to be a companion to the deceased and to perform services such as shopping cleaning, washing and cooking.

In addition to providing board and lodging the deceased agreed to include the plaintiff in her will, whatever that promise may mean, and also "the right to have the flat at her disposal after ... death".

It is arguable that these provisions would be void because they are too vague and uncertain.

If the promises made in the agreement are void because of uncertainty and the plaintiff was able to establish that she relied upon the promises to her detriment it may be arguable that the deceased did assume some responsibility for the plaintiff's support and maintenance taking into account that the plaintiff has very few assets and income from the pension. A claim on her bounty could be submitted on the basis that if services were provided without remuneration, the assets of the deceased were thereby preserved.

But in answer to these arguments is the fact that the agreement went on to provide what was to happen in the event that the deceased either breached the agreement or terminated it. In either of those events the deceased agreed, according to the agreement, to pay the plaintiff $20 for every hour.

In my opinion the true relationship between the deceased and the plaintiff was a contractual one pursuant to which the plaintiff was to be provided services for which she was to be recompensed either by some appropriate provision in the will or failing that, an entitlement to money due under a contract. The relationship was one of a commercial nature rather than a relationship pursuant to which a moral obligation arose imposing any responsibility on the deceased to make provision for the plaintiff.

The plaintiff was not at any time dependent on the deceased for her support or maintenance. She freely entered into the arrangement. She elected to live with the deceased.

Applying what the Privy Council said in Bosch's case, the court placing itself in the position of the testatrix and considering what ought to be done in all the circumstances of the case would lead to the conclusion that the testatrix provided for the very contingency which occurred and would have no obligation to provide for the plaintiff in her will. In those circumstances the plaintiff did not have a claim on the bounty of the deceased, nor did the deceased have any moral obligation to the plaintiff to provide for her maintenance and support in her will.

The agreement regulated their relationship and provided for what was to happen in the event that the deceased did not include her in her will.

Adopting the words of Lush J in the case of In Re Walker, having considered the strength of the substantive application it is improbable that the proceeding would succeed.

It follows that the plaintiff fails in her application to extend time.

I wish to emphasise that I have decided this application on the basis that the agreement between the parties provided for the event which occurred, namely, the failure by the deceased to make provision in her will for the services rendered, that the plaintiff was not dependent on the deceased and in the circumstances the deceased had no responsibility to make provision. The plaintiff's rights are in contract if she has any. But that is not to say that where a person provides services or benefits to a testator as a result of a promise to leave property by a will instead of being paid adequate remuneration the circumstances may not be such that the promisee does have a claim under Part IV of the Act.

The plaintiff in her originating motion has not only sought provision under s.91 of the Act but has also sought further or other relief in the form of questions. It seems to me that the questions raised are inappropriate and that if she has any claim it would appear to be a claim arising in contract.

The court made an order in another proceeding being proceeding No. 6954 of 2000 in which the present defendant was plaintiff and the present plaintiff was defendant. I do not propose to consider whether any other proceeding is now barred. However, in order to avoid additional costs I am prepared to order pursuant to Rule 4.07 of the Rules of Court that the proceeding continue as if it had been commenced by writ and give leave to the plaintiff to deliver a statement of claim if so advised.

Subject to submissions of counsel I propose to make the following orders:

(i) That the application seeking an extension of time pursuant to s.99 of the Administration and Probate Act be dismissed;

(ii) that the claim brought by the plaintiff in paragraph one of her originating motion seeking proper provision out of the estate of the deceased Mary Oniman pursuant to s.91 of the Administration and Probate Act be dismissed;

(iii) that the proceeding continue as if it had been commenced by writ;

(iv) that the plaintiff have leave to deliver and file a statement of claim on or before 30 March 2001.

I will hear the parties on the question of costs.

At a glance

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Judgment (128 paragraphs)

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