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[2001] VSC 53
Supreme Court of Victoria
2001-03-08
Gillard J
Original judgment source is linked above.
PART IV - ADMINISTRATION AND PROBATE ACT - testator's family maintenance - s.99 - extension of time - principles - merits - no arguable case - application refused.
"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)."
"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."
"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."
"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."
"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."
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."
"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 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."
"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."
"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."
"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."
(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.
Valbe
Irlicht [2001] VSC 53
(1994) 68 ALJR 509
(1962) 107 CLR 924
(1979) 143 CLR 134
(1956) 95 CLR 494