Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23

High Court of Australia Dixon C.J. Williams, Webb, Fullagar and Kitto JJ. Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23

ORDER Appeal allowed. Vary the order of the Supreme Court dated 26th October 1955 by substituting the figure £20 for the figure £5. Order that the costs of all parties of this appeal be paid out of the estate of the testatrix.

Cur. adv. vult.

The following written judgments were delivered:—

June 6 Dixon C.J.

This is an appeal by special leave from an order made by Lowe J. in the Supreme Court of Victoria under Pt. V of the Administration and Probate Act 1928 as amended by the Administration and Probate (Testator's Family Maintenance) Act 1937 (No. 4483). The order, which was made on the application of the present appellant, directs that he receive a proper maintenance and support out of the estate of his mother in addition to the provision made for him by her last will. The order fixes an additional sum of five pounds per week for his life payable as from the date of the order, viz. 26th October 1955. The respondents in the appeal are the trustees of the will and the Attorney-General for the State of Victoria. The Attorney-General appears in the interests of a large number of charities which are the residuary beneficiaries under the will and take the whole of the corpus. The ground of the appeal is that the provision made by the order is inadequate and was the result of a mistaken exercise of the learned judge's discretion.

The appellant's mother died as long ago as 29th March 1945 and probate of her will was granted on 9th July 1945. The appellant's application was made by summons issued on 5th July 1955. Section 147 of the Administration and Probate Act as amended provides that no application shall be heard by the court at the instance of the party claiming the benefit of that part of the Act unless the application is made within six months after the grant of probate or administration c.t.a. There is, however, a proviso enabling the court or a judge to extend the time for making an application and to do so although the time limited for making an application has already expired. The proviso is qualified by a requirement that the application must be made before the final distribution of the estate and that no distribution of any part of the estate made prior to the application must be disturbed by reason of the application or of any order made thereon. Pursuant to the power conferred by the proviso Sholl J. made an order dated 16th June 1955 directing that the time for making an application for adequate provision for the proper maintenance and support of the appellant should be extended until 15th July 1955. The appellant made his application to the Supreme Court accordingly and it thus became necessary for Lowe J. to consider, ten years after the death of the deceased, whether an adequate provision for the proper maintenance of the appellant had been made by her will and, if not, what, if any, additional provision should be made out of her estate.