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August 18, 2017 |

Plaintiff Successful Contesting a Will in NSW even though his Application was out of time

Link:

Life v Hall [2016] NSWSC 316

MY SUMMARY OF THE PLAINTIFFS APPLICATION:

Application out of time. The Deceased left a Will with some provision made for the Plaintiff and the application before the court is whether the provision was adequate and whether sufficient cause for making an order extending the time for the making of the Plaintiff’s application is warranted.

It was clear, from the evidence, that the relationship of the Plaintiff and the Defendant has broken down, it seems, irretrievably.

The Defendant submitted that an order should be not be made extending the time for the making the Plaintiff’s application, principally because his substantive claim should be dismissed.

MY SUMMARY OF THE EVIDENCE:

The deceased died aged 88 years.  The deceased was married to Allan George Life until his death in March 1992. The deceased and Allan had only two children, who are the parties in the proceedings. The Plaintiff was born in August 1948 and the Defendant was born in February 1957.

The deceased left a Will and a Codicil. There is no dispute regarding these documents. The bulk of the estate was shared, equally, between the Plaintiff and the Defendant.

In her affidavit sworn 28 August 2015, the Defendant disclosed liabilities of the estate, which had been paid, as $8,016. She also stated that “a few hundred dollars” had been deducted by the Bank, as “withholding tax”. She asserted that there were additional liabilities of the estate, amounting to $9,828, which had not been paid, including some legal costs of associated proceedings to which I shall refer.

It was necessary for the Defendant to commence proceedings against the Plaintiff to obtain possession of the estate property. She commenced proceedings, by Statement of Claim, filed in the Possession List of this Court, on 20 November 2014. Those proceedings have not been determined because this application was made by the Plaintiff (out of time).

The Plaintiff commenced proceedings by Summons filed on 29 June 2015. the Plaintiff’s Summons was filed approximately 2 years and one month after the death of the deceased. Accordingly, it was filed 13 months outside the time prescribed by the Succession Act.

The deceased appointed the Defendant her Enduring Guardian on 11 February 2004. The Plaintiff made application to the Guardianship Tribunal to review that appointment in March 2010. He also sought a review of the making, operation and effect of an Enduring Power of Attorney which the deceased made in favour of the Defendant on 22 July 1996. On 28 May 2010, the Guardianship Tribunal dismissed both applications for review. In each case, the Plaintiff had stated that the application “was made because of the conflict between [the Defendant] and himself and concerns about the decisions being made by [the Defendant]”:

The plaintiff made an offer of a 50/50 settlement before the hearing but that offer was rejected by the Defendant.

The two questions for the Judge to answer were whether the Plaintiff has been left with inadequate provision for his proper maintenance, education and advancement in life; and, if so, what, if any, provision (or further provision) ought to be made out of the estate for those purposes.

It has been said by other judges that expression “sufficient cause” means “sufficient explanation or sufficient justification or excuse for the application not having been made within the prescribed period.

SIZE OF THE ESTATE:     $685,000

Property $594,000

Bank account $109,000

MY SUMMARY ABOUT THE PLAINTIFF:

The Plaintiff, a son of the deceased, applied, out of time, for a family provision order. Not in good, suffering from “chronic depression for which he receives a disability pension”. The plaintiff, a pensioner and clearly in need of provision. His legal costs were $50,000

MY SUMMARY ABOUT THE DEFENDANT:

The Defendant in the proceedings was Francene Hall, also a child of the deceased and the only sibling of the Plaintiff. She is the sole executrix named in the deceased’s Will. Her health and finances good compared to the plaintiff. Defendants legal costs $50,000.

MY SUMMARY OF THE COURT ORDER:

The judge said that he accepted the Plaintiff’s evidence that his psychological condition, when he was faced with the requests to vacate the estate property, led him to a state of paralysis in deciding what to do and that he buried his head in the sand.

The judge was also satisfied, weighing up all of the matters the court must consider, that the Plaintiff has shown sufficient cause for extending the time for the making of his application until the date of the filing of the Summons. 

The order was further provision by way of an amount equating to an additional percentage of the net estate absolutely, and, if the Plaintiff purchases accommodation, partly by way of an amount which equates to an additional percentage, which amount is by way of loan from the Defendant’s share of the estate, repayable to the Defendant, and secured, by registered mortgage, on any property purchased by the Plaintiff.

In this case, when the judge considered the current financial and material circumstances of the Plaintiff, including his lack of earning capacity, his lack of other resources, such as superannuation, his age, his physical and psychological condition, he was satisfied that the provision made for him in the Will of the deceased is neither adequate nor proper.

Then there was an arrangements made for the provision for the plaintiff included selling the property and providing accommodation for his life with provision to the Defendant as well. The defendant to receive $180,000 on the sale and then have the benefit of a mortgage to secure the balanced of his entitlement.

Eric Butler

 

doyles Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

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