Wilkinson v Wilkinson [2002] NSWSC 175

New South Wales Supreme Court

CITATION : Wilkinson v Wilkinson [2002] NSWSC 175 FILE NUMBER(S) : SC 2336/01 HEARING DATE(S) : Friday, 1 February 2002 JUDGMENT DATE : 1 February 2002

PARTIES : Leslie Wilkinson (Plaintiff) Peverall John Wilkinson (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : L. Ellison (Plaintiff) D.D. Knoll (Defendant) SOLICITORS : Marsdens Solicitors (Plaintiff) McPhee Kelshaw Solicitors (Defendant) DECISION : 1. Order that the claim of the Plaintiff under the Family Provision Act 1982 be dismissed.; 2. Order that so much of the notice of motion filed by the Defendants on 21 November 2001 as related to a claim grounded upon an asserted constructive trust be dismissed.; 3. Order that the Plaintiff have leave to file and serve on or before 8 March 2002 an amended statement of claim in respect to his claim grounded upon an asserted constructive trust.; 4. Order that any defence thereto be filed on or before 15 April 2002.; 5. Order that one half of the Plaintiff's costs on the party and party basis and the costs of the Defendants on the indemnity basis of and incidental to the notice of motion filed by the Defendants on 21 November 2001 be paid out of the estate of the late Brian Robert Williams ("the Deceased").

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 1 February 2002

2336/01 LESLIE HAROLD WILKINSON -V- PEVERALL JOHN WILKINSON & ANOR JUDGMENT 1 MASTER: There is presently before the Court a notice of motion filed by the defendants, Peverall John Wilkinson and Barbara Ellen Parkinson on 21 November 2001. By that notice of motion the defendants seek an order pursuant to Part 13 rule 5 or Part 15 rule 26 of the Supreme Court Rules that the proceedings be dismissed. 2 The substantive proceedings were instituted by summons filed by the plaintiff, Leslie Harold Wilkinson, on 26 April 2001. By that summons the plaintiff sought substantively a declaration that he was entitled to a legal life estate in certain land situate at and known as 50 Quarry Road, The Oaks, and sought consequential relief in respect to the transfer to him of such a legal life estate. 3 Subsequently there was filed on behalf of the plaintiff on 14 November 2001 a statement of claim. That statement of claim sought declaratory relief in respect to the subject property, although the form of the declaration sought was that the defendants hold that property on trust for the plaintiff to the extent of a life estate. 4 In addition, the plaintiff sought an order pursuant to section 15 of the Family Provision Act 1982, extending the time in which he could bring proceedings against the estate of the late Brian Williams, and further sought an order for provision out of the estate of the late Brian Williams pursuant to section 7 of the Family Provision Act. 5 In order to understand the nature of the substantive claims being brought by the plaintiff and the basis upon which the defendants seek that those claims should be dismissed, it is appropriate that I should set forth, at least in summary, something of the factual background and familial relationships relevant to those claims and the history of the dealings of the plaintiff with his legal advisors and the communications between those legal advisors and the solicitors for the defendants. 6 The plaintiff is the brother of the late Dorothy Joyce Williams (known in the family and referred to in the statement of claim and the affidavits as Joyce). Joyce died on 21 May 1998. She was survived by her son, Brian Robert Williams (referred to in the statement of claim and in the affidavits as Brian, to whom I shall also refer as "the deceased"). In consequence, therefore, the plaintiff was the uncle of Brian. 7 The land situate at The Oaks, which is the subject of the proceedings and which constitutes the significant asset in the estate of Brian, was, as I understand it, originally owned by the husband of Joyce and the father of Brian, being the late John Robert Williams (referred to as Jack). 8 It would appear from the evidence that the plaintiff had a close relationship with his sister Joyce, her husband Jack and her son Brian. Indeed, for a period both before and after the first marriage of the plaintiff, he resided with Joyce, Jack and Brian, firstly in their residence at Guildford in the 1940s, where he remained with them for a period of eight to ten years. Then, after the termination of his first marriage, he again went to live with them, about 1958, until he commenced to reside, in 1963, with the lady who became his second wife, being Mrs Valda Wilkinson. 9 It is the case for the plaintiff that after the death of his wife Valda in 1996, some five months after the death of Jack Williams, the plaintiff was requested to remove his residence to the residence of Joyce and Brian at "The Oaks". 10 According to the plaintiff's evidence, he was somewhat reluctant to do so, he at that stage being content to reside at Old Bar (which, as I understand it, is located on the north coast of New South Wales). At all events, the plaintiff did, in about May 1997, move to the property at The Oaks, he having at the end of 1996, sold his residence at Old Bar. 11 The plaintiff continued to reside in the property at The Oaks. From May 1997 until her death on 21 May 1998, the plaintiff was a member of the same household of which Joyce was a member and from May 1997 until his death on 2 November 1999, the plaintiff was a member of the same household of which Brian was a member. 12 Upon the death of Joyce, the entirety of her estate passed to Brian. He left a will dated 26 August 1970. However, the effect of that will was to leave the entirety of his estate to his two parents, both of whom had, of course, by the time of his death in 1999, predeceased him. 13 In consequence therefore, the estate of Brian is subject to distribution in accordance with the rules of intestacy. It would appear that that estate will be divided equally among a number of the uncles and aunts of Brian. In the evidence of the plaintiff, that number is given as eleven, whilst in the evidence of the defendants, that number is given as nine. 14 The defendants are the persons to whom administration of the estate of Brian, with the will of Brian annexed thereto, was granted on 13 February 2001. 15 I have already referred to the fact that the summons by which the proceedings were instituted on 26 April 2001 sought relief only in respect to the land at The Oaks and did not seek any relief by way of a claim for an order for provision under the Family Provision Act 1982. 16 I have also referred to the fact that the statement of claim filed on 14 November 2001 seeks not only relief in respect to the land at The Oaks, but also seeks substantively an order for provision under the Family Provision Act and, as an essential prerequisite to the making of any such order, seeks an order extending the time in which such an application for provision can be brought. 17 The evidence further discloses that the plaintiff first approached a solicitor and sought legal advice concerning at least his right to remain in residence in the property at The Oaks in December 1999. 18 Correspondence passed between the plaintiff's solicitors and the solicitors acting for the present defendants, in the course of which, in a letter of 20 February 2001, the solicitors for the defendants adverted to the possibility of the plaintiff bringing a claim under the Family Provision Act and expressed the view that the plaintiff did not have any valid claim against the estate under that Act. 19 That letter also contained a request that the solicitors for the plaintiff advise whether the plaintiff intended to commence proceedings against the estate and continued by saying that the solicitors for the defendants were instructed to accept service of any process. 20 The prescribed period for the institution of proceedings for an order for provision under the Family Provision Act is, by section 16 of that Act, a period of eighteen months from the date of the death of the deceased person. 21 Since the relevant deceased person in the instant case is Brian, and since he died on 2 November 1999, the last day for the institution of a claim for provision under the Act was 2 May 2001. The plaintiff did not make such a claim by that date. The claim was first made in the statement of claim which was filed on 14 November 2001. 22 The plaintiff seeks an order that the Court, in the exercise of its discretion under subsection (2) of section 16 of the Family Provision Act, extend the prescribed period to enable the claim to be brought out of time. That application is opposed by the defendants. 23 It is upon the basis of that opposition and the submission by the defendants that, unless the plaintiff can succeed in having the time extended, the claim under the Family Provision Act should be dismissed, that the defendants bring their application for dismissal in respect to that part of the plaintiff's claim. 24 It should here be recorded that it was not in dispute between the parties that the plaintiff is an eligible person in relation to Brian, being such at least within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act and possibly within paragraph (a) of that definition. 25 I have had the benefit of receiving from Counsel for the defendants a written outline of his submissions, together with a chronology and copies of relevant authorities. The written outline of submissions and the chronology will be retained in the Court file. 26 I shall proceed to deal first with what can be treated as an application by the plaintiff for extension of time in which to bring his claim under the Family Provision Act. If the plaintiff cannot substantiate an entitlement to have the time extended, then it is inevitable that the claim of the plaintiff under that Act must be dismissed. 27 I will then proceed to consider the application of the defendants for dismissal of the claim of the plaintiff in respect to the asserted life estate or right of occupancy in the property at The Oaks, that asserted right being grounded upon an alleged oral promise on the part of Joyce and Brian, either jointly or severally, and also upon the principles relating to a constructive trust. 28 In respect to the extension of time for the bringing of the claim under the Family Provision Act, it has been pointed out by Counsel for the plaintiff that the usual practice in this Division is that where a claim is brought after the expiry of the prescribed period, the application for extension of the prescribed period should be dealt with at the final hearing of the substantive claim and in the context of the evidence to be adduced at that hearing. 29 It is certainly my experience that more usually than not the hearing of the application for extension of time takes place at the final hearing. 30 Nevertheless, a defendant is not precluded from applying for dismissal of proceedings on the ground that they are not brought within time and, in effect, having the hearing of an application for extension of time heard separately from the hearing of the substantive claim. That is, in effect, what has happened in the present proceedings. 31 I have been taken to a number of decided cases concerning extension of time under the Family Provision Act. I will make reference only to the decision of Young J in Charles v Charles (unreported, 25 March 1998, NSWSC) and to the unreported decision of Master Macready in Tumley v Swaab, [1999] NSWSC 594. 32 Subsection (3) of section 16 of the Family Provision Act provides as follows: "The Court may not make an order under subsection 2 allowing an application in relation to a deceased person to be made after the end of the prescribed period unless: