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Gilmore, (deceased), The Will of, in Re [1963] PNGLR 264 (12 August 1963)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 264 - Gilmore, (deceased), The Will of, in Re

[1963] PNGLR 264

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN RE THE WILL OF GILMORE DECEASED

Port Moresby

Ollerenshaw ACJ

12 August 1963

TESTATOR’S FAMILY MAINTENANCE ORDINANCE 1951-1959 SECTIONS 4 AND 8 - Application for extension of time for making application for provision - Onus - Principles affecting the exercise of discretion - Question of election by executor proving will.

Application was made under Section 8 of the Testator’s Family Maintenance Ordinance 1951-1959, by two married men with families for an order granting extension of time to apply for a further order under Section 4 of that Ordinance to grant them proper provision out of their Mother’s estate. Any application for such provision out of an estate should be made within nine months of the date on which probate is granted. The applicants herein were nearly three and a half months out of time and sought to have the Court exercise in their favour a discretion left to it by the Legislature.

Held

That the onus is on the applicant to satisfy the Court that such discretion should be exercised in his favour. It is a broad discretion and must be exercised judicially. It is unwise to define exclusively the grounds upon which the discretion should be exercised but in common with many other similar applications four main considerations apply to the facts of the present case, when determining whether the discretion should be exercised in the applicant’s favour.

1.       Whether the delay is excusable. The ignorance of a right to apply, and the speed with which an application is lodged following awareness of the right, are important factors in determining if the delay is excusable.

2.       It may be unjust to impose upon that part of the estate remaining undistributed, the whole burden of an order making provision for an applicant left inadequately provided for. Consequently the absence of any material distribution of the estate has a strong influence on an exercise of the discretion.

3.       Whether any injustice would be occasioned to the beneficiaries selected by the testator, bearing in mind that they may well have altered their position in anticipation of distribution. This aspect is of prime importance.

4.       The merits of the application for provision out of the estate. When such application is bound to fail the Court will exercise its discretion against the applicant. If the applicant has a not unreasonable chance of success, that is, he would be entitled to a hearing because it may succeed, the discretion should be exercised in his favour.

Held

Also that an executor who proves a will does not prejudice in any way his claims to a share in the estate under the Testator’s Family Maintenance Ordinance 1951-1959. Application granted.

Re Guskett deceased [1946] VicLawRp 74; (1947) V. L. R. 212; Re Barrot deceased [1952] VicLawRp 90; (1953) V.L.R. 308; Re T. F. Dun, 73 W.N. (N.S.W.) 99 Re Newton, 76 W.N. (N.S.W.) 479; Re Mitchell, [1941] NSWStRp 45; 42 S.R. (N.S.W.) 19, followed.

Counsel

Horton, (N.S.W. Bar), for the Applicants.

Cromie, for Respondent Executor.

Powell, for Respondent Executor and Beneficiary.

C.A.V.

OLLERENSHAW ACJ:  This is an application for orders extending the time within which each applicant may make an application under Section 4 of the Testator’s Family Maintenance Ordinance, 1951-1959 for an order making proper provision for himself out of the estate of their mother, the testatrix.

The testatrix died on the 17th May, 1961, and probate of her will was granted by this Court on 17th May, 1962. It is now provided by Subsection (1) of Section 8 of the Ordinance that, subject to the next three succeeding subsections, an application for provision under Section 4 shall not be heard by the Court unless the application is made within nine months after the date of the grant of probate of the will.

The notice of Motion now before me was filed in this Court on the 30th May, 1963; that is to say approximately three months and two weeks after the time within which an application for provision out of this testatrix’s estate could have been made without an order of the Court extending the time for the making of such an application.

This application for extension of time is made under Subsection (2) of Section 8 of the Ordinance, to which section were added Subsections (2), (3) and (4) by the Amending Ordinance No. 19 of 1959.

These subsections read as follows:

Section 8.

(2)      “The time for making an application for an order may be extended for a further period by the Court, after hearing such of the parties affected as the Court thinks necessary.”

(3)      “The power conferred by the last preceding subsection extends to cases where the time limited by Subsection (1) of this section for an application has expired, whether before or after the commencement of the Testator’s Family Maintenance Ordinance 1959.”

(4)      “The provisions of the last preceding subsection do not apply where the application for extension is made after the final distribution of the estate, and no such application or order made thereon affects a distribution of a part of the estate made before that application.”

The testatrix, who was predeceased by her husband, left an estate of £63,000 after deducting the amount of the debts and administration expenses. The main, if not the only remaining asset in the estate, is a hotel at Madang, which is now being carried on by the executors under a power given to them in a codicil to the testatrix’s will. Duty has not been finally assessed and there has been no distribution of the corpus of the estate. There has been a distribution of income in partial satisfaction to date of the annuity which I mention later.

The testatrix left surviving her two sons, namely the applicants, Graham David and John Louis Gilmore, and her daughter, Peggy Webb.

Graham David Gilmore is married and has a son aged ten years and a daughter, who was adopted by him after the testatrix’s death and who is one year of age. He is thirty-two years of age and able-bodied. He owns about £10,000 in cash, this being the price at which recently he sold his plantation.

John Louis Gilmore is married and has five children, whose ages range from five to seventeen years. He is forty-five years of age. He too is able-bodied and he has the following assets: £500 in cash, a motor car and a plantation, which he developed from virgin land. There is no satisfactory evidence of the value of this plantation. About five years ago, being in financial difficulties, he sold one half of the land involved for £4,000. The balance of the land in the plantation is “worth considerably more than £4,000”, but, in the present circumstances of the Territory, so it is said, is not readily saleable. He owes the sum of £12,000 which, so it would appear, is secured by a mortgage over his plantation.

The daughter, Peggy Webb, is thirty-nine years of age. She is married and has two sons, John and David McEvoy, aged fourteen and sixteen years respectively. They are the children of an earlier marriage whose father died in 1951. She has also a daughter, aged five years, who was born out of wedlock. There is no evidence before me of her or her husband’s financial situation.

The testatrix, in the events that have happened, disposed of her estate, so far as is material, in the following manner: To her daughter, Peggy, she bequeathed an annuity, which she charged upon her estate with power to appropriate part of the corpus in exoneration of the rest; To her grandsons, John and David McEvoy, the children of Peggy, she gave two-thirds of her residuary estate (that is her estate after payments of debts and liabilities and including, in due course, any part appropriated for payment of the annuity together with any surplus income); To the other child of Peggy and her grandchildren, being the five children of the applicant John Louis and the son of the applicant David Graham, she gave the remaining one-third of her residuary estate. Thus it will be seen that she left nothing to either of her two sons, the present applicants, who take no benefit under her will except such assistance as, possibly, they may be afforded in bringing up and educating their children in the event of the exercise of a power given to the executors to raise up to one half of the share of any infant beneficiary for his or her advancement or benefit.

Although this is the first application of its kind to be made to this Court, similar applications under similar statutory provisions are not uncommon in the Courts of, e.g., New South Wales, Victoria and New Zealand, and a number of reported decisions contain the contributions of those Courts towards the ascertainment of the principles which should be applied in the consideration of an application of this sort.

The section, itself, confers a wide power upon the Court and the legislature has not in any way attempted to indicate the grounds upon which an application may be made or to limit the discretion conferred upon the Court.

Although the legislature itself did not specify the grounds upon, or, the circumstances in which an extension of time may be granted, it is obvious from the fact that a dilatory applicant must obtain the Court’s order for an extension of time before making his substantive application and from the wording of the grant of power: “The time for making an application for an order may be extended . . . . by the Court after hearing such of the parties affected as the Court thinks necessary”, that time should not be extended in all cases. It is equally clear that the onus lies upon an applicant to make out a case for the exercise of the discretion in his favour.

It is, of course, a discretion that must be exercised judicially, that is judiciously upon relevant considerations. This does not mean, however, that I am bound by principles which Courts, other than the High Court of Australia, have worked out and applied if such principles, upon reflection, do not appeal to my mind.

Giving heed to the repeated warnings against Courts attempting to define exclusively the grounds upon which a discretion should be exercised or otherwise to create imperative conditions when the legislature itself has refrained from doing so, I limit myself to the considerations which, in my judgment, are relevant to this present application. These considerations will appear in the course of this judgment. I think, indeed, that they are considerations which will be found to be common to many applications, whatever features peculiary to themselves other applications may present.

Firstly, I consider whether the short delay in this case of some three months or so is excusable.

The explanation offered by each of the applicants is that he was ignorant of his right to make an application for provision out of the estate. This claim has not been challenged in this application. Similar claims frequently have been made and established, e.g. in New South Wales, where weekly for many, many years applications for provision out of estates have been made to the Court by disappointed sons and daughters, as well as wives and husbands, often with great publicity. In this Territory such litigation would receive little, if any, publicity. Indeed such applications are very rare. I have consulted the Registrar of this Court and he has informed me that during his tenure of office, that is to say during the last four years, in the case of one estate, only, have applications been made to this Court for provision under the Testator’s Family Maintenance Ordinance. Furthermore, the present applicants live in places remote from where the Court usually has sat in its civil jurisdiction and from where there are practising solicitors. In all the circumstances I see no reason for not accepting the explanation for the delay.

It appears from the evidence, too, that the applicants moved quite promptly after they learnt from an accountant of the possibility that they had some right to approach the Court for provision out of her estate, notwithstanding the terms of their mother’s will. They quickly consulted a solicitor in Port Moresby, who filed and served their Notice of Motion without further delay.

I am, therefore, satisfied that their failure to make a substantive application under the Ordinance within the period it prescribes is excusable.

Mr. Horton, in his very able presentation of the case for the applicants, referred me to certain New Zealand authorities, such as In re Brown[ccclii]¹ from which it has been established in that Dominion that an extension of time should be granted notwithstanding an inexcusable delay in a case where an applicant would suffer a “manifest injustice” by reason of the dispositions of a will unless the time limit were extended to enable the Court to rectify the position. The delay in this case being, in my judgment, excusable it is not now strictly necessary for me to consider this New Zealand principle. I think, however, that it will not do any harm if I say, if I may, that I am strongly inclined to agree with the Victorian Judges who have rejected this doctrine of “manifest injustice” to an applicant: vide Re Guskett, deceased[cccliii]² and Re Barrot, deceased[cccliv]³.

Secondly, I take into consideration in favour of the applicants the absence of any material distribution of this estate.

Section 8, itself, in Subsection (4), provides, in effect, that after the expiry of the nine months from the grant of probate there is no power to grant an extension of time after the final distribution of the estate and that, in any event, any partial administration made before the application is not to be affected by any order made thereon. It is clear to my mind, however, that the extent of distribution still may be a factor requiring consideration in the exercise of the discretion inasmuch as during an applicant’s delay there may have been such a distribution as to make it unjust to impose upon that part of the estate remaining undistributed the whole burden of an order making provision for an applicant left inadequately provided for: vide, e.g., Re Barrot, deceased[ccclv]⁴.

In this estate there has not been any distribution of corpus and such distribution of income as has been made is immaterial.

Thirdly, there is the important consideration of any injustice that may result, from the granting of an application, to the beneficiaries selected by the testator. During the applicant’s delay such beneficiaries may have, e.g., so dealt with their undistributed interests, or, so ordered their affairs, in the expectation of receiving the benefit of such interests as have been left to them under the will and have not been disturbed by any orders made under the Ordinance within the time prescribed, that it would be unjust to them to allow to be made out of time an application that might jeopardise those interests.

It is not suggested that there has been any such disposition of interests or acting in the expectation of receiving them, by any of the beneficiaries in this estate. Indeed, apart from the testatrix’s daughter, who takes merely an annuity, all the beneficiaries are no more than school-children who could not have disposed of their interests or acted upon their expectations in any significant sense.

I am, therefore, of the opinion that no question of injustice to beneficiaries that ought to be considered at this stage arises in this application.

It is convenient for me to say here that it was for these reasons that I considered it unnecessary to have the infant beneficiaries represented before me upon the hearing of this application in which the executors and the sole adult beneficiary, who is herself the mother of the infants who take the greater share of the estate, are represented.

Fourthly, I come to such consideration as I ought to give to the merits of the applications that are proposed to be made in the event of the time for making them being extended. To what extent should I enquire into the facts and circumstances that will be relied upon by the applicants and, importantly, what standard of mental satisfaction should I feel with regard to the fate of their proposed applications before I make an order that would subject the estate and its beneficiaries to the litigation involved in such applications? Ought I to be satisfied, e.g., that the applications are bound to succeed, or, that they probably will succeed, or, that they possibly will? This is a question that has received the consideration in New South Wales of the Judges administering the jurisdiction of the Supreme Court in Equity, in which jurisdiction such applications are dealt with. The two reported cases, which were cited by Mr. Horton, are Re T. F. Dun[ccclvi]⁵ and Re Newton[ccclvii]⁶. In the former Myers J., considered that it was not necessary to show a probability that the substantive application would succeed and that it was sufficient if it were not unreasonable to suppose that it may succeed. In other words, as Myers J., also put it, if it appears that the application for the provision would be bound to fail then the application for the extension of the time for making it ought to be refused in justice to the beneficiaries, who otherwise might be prejudiced by, e.g., expense and delay in the administration of the estate. On the other hand, if it appears that the substantive application would have a not unreasonable possibility of success then an extension may be granted.

This decision was followed by the Chief Judge in Equity, McLelland C.J. in Eq., in Re Newton[ccclviii]⁷ and it seems to me that much the same approach to the question was adopted by Sholl J., in Re Barrot deceased[ccclix]⁸ at p. 313, where he said: “It may be (I need not here decide it) that a Court would consider that, on the case she has made, she has shown that the testator . . . . did not make adequate provision for her proper maintenance and support.” The word in italic is mine.

I propose to follow those decisions because it seems to me that they establish what is an emminently reasonable test in applications of this sort and I ask myself in respect of each of the proposed applications: Is it bound to fail or has it a reasonable possibility of success?

Each applicant has sworn an affidavit, which has been read, as to the facts and circumstances upon which he would rely in making out a case for some provision out of their mother’s estate, from which they receive no benefit under the terms of her will. They propose, so it would seem from their affidavits, to strengthen their claims by evidence to the effect that they assisted their mother in building up the estate which she has left. Whether or not such assistance is a matter which the Court ought to take into consideration in determining whether an order for provision out of the estate should or should not be made is the subject of a conflict of judicial opinion. I do not think that it would be proper, at this stage, for me to express any opinion upon this aspect of their claim. In view of the judicial support that does exist for it, I may say that it would not be unreasonable to suppose that the judge who hears the applications may take the view that the rendering of such assistance does strengthen the claims for provision.

I have considered the cases proposed to be made, in so far as is necessary for me to apply the test which I have adopted, but, I do not think that it would be wise for me to say more than that I do not consider that I could say of either of the proposed cases that it is bound to fail in an application in which it will be urged that the moral claims of the applicants upon the testatrix have been entirely ignored and the Judge will be required to consider this submission in the light of the actual dispositions which the testatrix did make of her estate: vide Allardice v. Allardice[ccclx]⁹; Bosch v. Perpetual Trustee Company Limited[ccclxi]¹⁰; and Delacour v. Waddington[ccclxii]¹¹. On the other hand, I consider that it may be said of each of the cases proposed to be made that it has a not unreasonable possibility of success, or, to put it in my own words, that it is an application that is entitled to a hearing because it may succeed.

I should add that I have not overlooked, amongst the other difficulties that the applicants may encounter, the fact that each applicant is able-bodied and that he is able to support himself and his family and has some assets of a not insubstantial nature. However, these are matters which, while requiring careful consideration in all the circumstances that will fall for the consideration of the Judge who hears the applications, do not now present such barriers to success as at one time they were thought to do: vide, e.g., McCosker v. McCosker[ccclxiii]¹² and Stott v. Cook[ccclxiv]¹³.

I should, perhaps, refer to one other matter that was raised by Mr. Powell, who appears for the respondent daughter. He submitted that one of the applicants, who was one of the executors appointed by the testatrix and who joined in proving her will, had thereby elected in favour of the terms and dispositions of such will and so could not now make a claim which, if successful, would disturb these dispositions. I need say no more than that it is clear that this is not a case of election within any department of the doctrine of election and that it has long been accepted that an executor who proves a will does not thereby prejudice in any way his claims under the Statute. Where there is only one executor it may present a procedural difficulty, but where, as in this matter, there are two executors, one of whom is not a claimant and so properly may be made the respondent to the application for provision, there is no such difficulty, vide, e.g., Re Mitchell[ccclxv]¹⁴.

For the reasons which I have expressed I conclude that an extension of time for making an application for provision out of the estate of the testatrix should be granted in the case of each applicant and I will make orders accordingly.

Ordered: “THAT the time for making an application by each of the applicants Graham David and John Louis Gilmore under the Testator’s Family Maintenance Ordinance 1951-1959 be extended until four o’clock in the afternoon of Monday the 2nd day of September, 1963, and that the question of costs be reserved.”

Solicitor for the Applicants: Cory and Kilduff, Port Moresby.

ence>[ccclii](1949) N.Z.L.R. 509.

[cccliii][1946] VicLawRp 74; (1947) V.L.R. 212 per Herring, C. J.

[cccliv][1952] VicLawRp 90; (1953) V.L.R. 308 per Sholl J. at pp. 313-314.

[ccclv][1952] VicLawRp 90; (1953) V.L.R. 308 per Sholl, J. at p. 313.

[ccclvi]73 W.N. (N.S.W.) 99.

[ccclvii]76 W.N. (N.S.W.) 479.

[ccclviii]76 W.N. (N.S.W.) 479.

[ccclix](1953) V.L.R. 308.

[ccclx] (1910) 29 N.Z.L.R. 959.

[ccclxi](1938) A.C. 463.

[ccclxii][1953] HCA 64; 89 C.L.R. 117 at p. 127.

[ccclxiii]97 C.L.R. 567.

[ccclxiv]33 A.L.J.R. 447.

[ccclxv][1941] NSWStRp 45; 42 S.R. (N.S.W.) 19.