[Home] [Databases] [WorldLII] [Search] [Feedback] Supreme Court of Victoria

You are here: 

Broad v Broad [2007] VSC 33 (22 February 2007)

Last Updated: 27 February 2007

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8682 of 2006

IN THE MATTER of Part IV of the  Administration and Probate Act 1958 

AND IN THE MATTER of the Will and Estate of Edgar Stanley Broad, deceased

---

---

PROBATE – Application for extension of time within which to bring an application under  Part IV  of the  Administration and Probate Act 1958  – Whether an acceptable reason for delay shown – Whether an arguable case that the provision made by the testator was inadequate for the proper maintenance and support of the applicant – Whether evidence of financial hardship.

---

HIS HONOUR:

1 This is an application for an extension of time within which to bring an application under  Part IV  of the  Administration and Probate Act 1958  for provision to be made out of the estate of a deceased person for the proper maintenance and support of the applicant. By  s.99 , an extension is required if the principal application is not made within six months of the date of the grant of probate of the relevant will. No such application was made in this case.

2 Edgar Stanley Broad died on 27 August 1977. By his last will, which was made on 10 May 1975, he appointed his wife (the plaintiff Gwendoline Alice Broad) and his brother Harold John Broad as the trustees and executors of his estate. It was not large. According to the inventory of assets and liabilities filed in support of a grant of probate, its gross value was $66,181.26.

3 Probate was granted on 20 October 1978. The application before me for an extension of time was initiated by the filing on 14 September 2006 of an originating motion. It is supported by two affidavits. These were sworn by the plaintiff on, respectively, 7 November 2006 and 23 January 2007. An affidavit in opposition was sworn by the defendant (the plaintiff's son, Graeme Edgar Broad) on 14 December 2006.

4 So far as is presently relevant  s.99  provides 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 part of the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon."

5 The final distribution of the estate has not yet occurred; yet the effect of the will was straightforward and, it seems to me, equitable. By his will, the testator left the land upon which the matrimonial home was situated to his trustees to pay the net income, rents and profits to the plaintiff during her lifetime, with the remainder to the defendant. The residue of the estate was left to his five daughters in equal shares. The effect was that the plaintiff received a life interest in property which, according to the inventory, was valued $39,120; while the daughters received the residue, all of which was personal property as opposed to land, and the value of which was recorded in the inventory as being $24,061.21. In other words, each daughter would on this basis have received about $4,812. The defendant, who with his father had farmed the land all his working life, and has continued to do so, will take a fee simple interest in it on the death of his mother.

6 The precise amount distributed to the daughters is not in evidence; but it is not suggested that the estate has not to the presently relevant extent been dealt with in accordance with the will. There is evidence that each daughter received the sum of $1,600 from the defendant, that being a condition - laid down in the will - for the defendant taking his share in the remainder of the real estate. In addition, all the daughters were given with their brother a gift during their father's lifetime of a portion of the family farm. The defendant has subsequently purchased from his sisters their share of the land.

7 The plaintiff, if she is to succeed, must demonstrate that she had an acceptable reason for her delay in making the present application for an extension of time. In paragraph 25 of the affidavit of 7 November 2006 she swears that:

"The solicitors who prepared the application in respect of the will ... had been for many years the solicitors for our family including the deceased and our children. It was never explained to me by those solicitors or indeed anyone else until recently that if I believed that adequate provision had not been made for my maintenance and support after 27 years of marriage and six children I could apply for an order from the court seeking that further provision be made in my favour."

8 I accept this evidence. It was countered by counsel for the defendant, Mr Wells, with the submission that, on the evidence, I should conclude that even had she been fully informed, the plaintiff would not have applied under  Part IV.  The testator, Mr Wells submitted, in effect had been entirely fair to all who had a claim on his bounty and the plaintiff would have appreciated that that was so.

9 Mr Baker, counsel for the plaintiff, submitted to the contrary. He contended that the plaintiff had been treated shamefully by the deceased and that her claim was accordingly a strong one. Had she been aware of her rights she would have exercised them.

10 I do not think that the testator's provision for his wife can properly be described as shameful. To the contrary. During his lifetime, the couple lived comfortably but without extravagance. They took holidays. Their reasonable needs were met. In my opinion, the testator by his will attempted to ensure that after his death his widow would be financially no less comfortable. He was constrained by the size of the estate, and by the need to provide for his children. It seems to me that, within those constraints, he did what he could to promote a just result.

11 And I think that, at least in general, he succeeded. On the evidence available to me, he made adequate provision for his daughters. Had he given them any less, they may well have brought an application under  Part IV  for further provision for themselves; and they may have succeeded. Had this been the result, the plaintiff's interest must have been diminished, because it was only out of her interest that any further provision could have been made.

12 The defendant was left nothing under the will, save the interest in remainder to which I have referred. He had already received his share. Before his father's death, the defendant was given a portion of the family farm – all, that is, save for that which now constitutes the plaintiff's life interest, and that portion given to all the children and subsequently acquired by the defendant when he bought his sisters' interest. In my opinion, the testator had by this means made adequate provision for his son – who, as a farmer himself, had a particular interest in the land and a particular claim on it. Had an appropriate provision not been made, the defendant too may well have successfully applied under  Part IV.  Again, such an application would have put the plaintiff's interest at risk. Indeed, on the hypothesis that the daughters received no more than their entitlement, the plaintiff's interest would have been diminished in favour of her son.

13 There is no evidence before me to suggest that any disposition of his estate other than that for which the will provided was in justice open to the testator. I accordingly conclude that, had the plaintiff's application been made within time, it would have failed.

14 I add that, according to the evidence, the plaintiff was induced to make the present application not so much because she was or is dissatisfied with the provision made for her by her husband, but rather because she now wishes to be in a position to leave something to her daughters, or some of them, on her death. This is not a proper basis upon which to mount an application under  Part IV.  Nor does it give rise to a reasonable apprehension that, had the plaintiff known of her rights, she would have exercised them within the prescribed six months.

15 It is of course true that the plaintiff's life interest is restricted to the land which remained in the testator's ownership at the time of his death. The balance of the farm, the whole of which once supported a family of eight, had previously been given to his children.

16 Nevertheless, after his death, the general pattern of the plaintiff's life continued as before. She went on a cruise. Her reasonable needs have, it seems, been met. Certainly, there is no evidence to indicate that she has ever been reduced to living under real financial hardship. Although I do not for a moment suggest that luxury had or has been a feature of any part of her life - at least not of any part of which there is presently any evidence - there is evidence that she has been able to save the (very modest) amount of $9,000.

17 There is no evidence of the economic impact which the inter vivos gift of land to the children has had on the ability of the portion the subject of the plaintiff's life interest to support one person (the plaintiff) where before the un-subdivided property had supported the testator, the plaintiff, and their six children. Thus there is now no direct evidence of whether the life interest was and is capable of supporting the plaintiff to the extent that the entire farm supported both her, her husband and their family during his lifetime. The nearest the evidence comes to addressing this point is that, in 1977, the defendant agreed to lease the matrimonial home and the 323 acres which constitute the plaintiff’s life interest at a rental of $2,500 per year for three years. I do not know what, given the effect of inflation, that sum would now represent.

18 The fact nevertheless remains that the life interest is presently dedicated to only one person, whereas formerly the larger property supported a family of eight. On all the evidence, I can I think properly infer that the plaintiff is now little if any worse off, financially, than she was when her husband was alive. More importantly, at the time of his death, she was not left without adequate provision for her proper maintenance and support. I add that, if there is any deficiency in the evidence then, the burden of proof being on the plaintiff, the absence of evidence cannot be in her favour.

19 The plaintiff can in justice point to the fact that the terms of the will have not been adhered to in respects relevant to the present circumstances. The defendant has been in residence in his parents' former matrimonial home since before the death of his father, and it may be all his life. His mother is now entitled to its rents and profits. Yet he has paid a market rent only occasionally, if at all. It seems that, even after the formal lease was entered into, rent was by informal agreement paid in kind, or by the defendant taking responsibility for meeting debts of the plaintiff.^[1] The most striking example is the defendant's payment of $30,000 by way of bond for the plaintiff's present aged care accommodation. The defendant maintains that this payment is in lieu of rental for his possession of the land in which his mother has her life interest; and that, as such, it will be some time before rent once again becomes payable.

20 The plaintiff is now approaching her 90^th birthday. It is not surprising that she sees her present circumstances as not being in accordance with her understanding of her entitlements. As she apprehends it, she is receiving (and, indeed, has received) nothing from her husband’s estate. So she is dissatisfied, and looks to the court to rectify the position. I am satisfied, however, that she does not understand the benefits and the limits of the life estate which she has inherited. Not only that, but she no longer puts in its correct perspective the fact that, as she acknowledges, she voluntarily moved out of her former home although by the lease entered into with the defendant in 1977 it was explicitly agreed that she would occupy "the homestead" along with him.

21 This, I think, is at least in part due to a failure by her children, including the defendant, to explain her situation to her. More particularly, it is the result of the fact that her life interest is not being managed as the will envisaged. But the plaintiff was appointed an executor and trustee under it, and remains so. She is doubtless now too old to fulfil her role as such with an understanding of all that her role entails. That was not the case in the years immediately after the death of the testator, when the present pattern was established.

22 In all the circumstances of this case, I cannot conclude that the plaintiff now has an arguable case that further provision made so as to address what she claims to be less than proper maintenance and support. It seems to me that, indeed, the testator was even handed in the dispositions in his will. He provided for his son to the extent that, appreciating that his son made his living by farming the land, it would be appropriate for him to receive on his mother's death the entire interest in the farming property. And I take into account the fact that any further provision for the plaintiff now would upset arrangements by which the defendant’s life has been governed for the past thirty years. In my opinion, the passage of time and the position that the land the subject of the life interest now occupies in the life of the defendant and his family would cause an extension of time to have unjust consequences.^[2]

23 The fact remains that it was not until the present proceedings were instituted that the plaintiff made any formal complaint about her treatment by the defendant. And the fact also remains that, as the executor of the deceased's estate, the plaintiff was always in a position to exercise her powers as executor to enforce the terms of the will. This she of course can do in the future. Nothing that I say today should be taken as in any way inhibiting her from exercising whatever rights she has as executor and/or beneficiary under the will in question. For the reasons I have attempted to articulate, however, it seems to me that this is not a case in which the court should exercise its discretion in allowing the plaintiff to bring an application under  Part IV  some 28 years out of time.

24 Although I accept the plaintiff's excuse for not bringing the proceeding earlier, in that she did not appreciate her rights under the legislation, it seems to me that no court would accept that the provision made for her in her husband's will was not adequate for her proper maintenance and support. For these reasons the application must fail.

---

^[1] As I find - the plaintiff indicated in her oral evidence that she did not always or necessarily go along with this scheme.

^[2] See Re Barrot, dec’d [1953] VicLawRp 45; [1953] VLR 308.