Jenal v Wolfenden[2009] QDC 127

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an application for an order that the applicant's application for provision filed on the 9th of February 2009 be heard and determined, notwithstanding that it was instituted outside the nine-months' time limit for making the application.  See section 41(8) Succession Act.

The deceased is Margaret Ann Myers.  The following details are not in dispute and are taken from the applicant's outline of argument.

"2.3  The deceased died on 2 September 2007 at 68 years of age.  She was survived by her husband, John Edward Myers, and their two adult daughters, Marcia Fife, born 17 April 1961 (aged 46 at the deceased's death) and Cheryl Maree Jenal (the applicant) born 23 May 1962 (aged 45 at the deceased's death).

2.4  The deceased left a will, dated 4 January 2006.  The respondent (unrelated to the deceased but a friend of Marcia Fife) obtained a Grant of Probate from the Supreme Court of Queensland on 6 December 2007, being the sole appointed Executrix and trustee of the will.

2.5  The estate of the deceased is said (by the solicitor acting for the estate) to consist of the following:-

(i)  all of the right, title and interest in the residential real property appraised to be valued at $295,000 to $305,000;.

(ii)  $9,706.11 - being the balance of money at bank after payment of funeral expenses;.

(iii)  a motor car - value $4,000;

(iv)  chattels owned jointly with the deceased's husband -value $1,000.

2.6  By her will, the deceased left a life estate in the residential real property to her husband, John Edward Myers, and, upon his death, that property was to be sold and specific legacies totalling $145,000 were to be paid to five of her grandchildren (there are eight grandchildren altogether - only one of the grandchildren left a legacy is a child of the applicant - the other three children of the applicant were left nothing by their grandmother) before the total of the residue was left to the applicant's sister, Marcia Fife, the applicant being left nothing.

2.7  By originating application filed on 9 February 2009, the applicant applies for provision to be made in her favour out of the estate.  That originating application was filed just over eight months outside the nine-month limitation period (that ran out on 2 June 2008)."

The applicant's father died on 19 June 2008.

Relevant to the exercise of the Court's discretion are:

(a)  Whether there is an adequate explanation for the delay;

(b)  Whether there would be any prejudice to the Beneficiaries;

(c)  Whether there has been any unconscionable conduct by the applicant; and

(d)  The strength of the applicant's case.

See Hills v. Chalk and Others, [2008] QCA 159, at paragraph [75].

Mr Michael Campbell, for the respondent, did not suggest any prejudice beyond a diminution in interests of the beneficiaries, should the application succeed, or rely on unconscionability.  The principal issues for consideration are (a) and (d).  It is also not suggested that the failure to make the present application within time has adversely impacted on the affairs of the beneficiaries.  See Hills at paragraphs [78] and [79].

In paragraph 22 of his outline of argument, Mr Campbell submitted:

"The beneficiaries will have their entitlements reduced substantially as a result of a successful application being made by the applicant then I am of the view that the Court would take such a matter into consideration.(sic)  They have been prejudiced by not receiving their benefits because of the delay in bringing the application."

This was not though pursued on the hearing of the application, and it was certainly not then advanced as a reason for refusing the application.

Three affidavits were filed, two by the applicant and one by the respondent's solicitor.  Neither deponent was required for cross-examination.

So far as (a) is concerned, the applicant has a positive burden of demonstrating that the justice of the case requires the extension of time.  See Hills at paragraph [79].The applicant must make out a substantial case that it is just and proper for time to be extended.  See Hills at paragraphs [80], [203] and [220].  Of relevance is "whether there was a period after the testatrix's death in which the (applicant) was aware of (her) right to bring an application for further provision from the testatrix's estate."  See Hills at paragraph [155].

(d) has been said to involve a consideration of whether it is probable that the substantive application will succeed.  See Hills at paragraph [31].  Alternatively, the application to extend time will be refused if the substantive claim would probably fail or be clearly unlikely to succeed, or have distinctly improbable prospects of success.  See Hills at paragraphs [35], [37] and [43].  (d) has also been said to require consideration of whether the applicant has an arguable case on the merits.  See also Hills at paragraph [218].

What is required is "a general assessment of the strength of the applicant's case".  If there is an arguable case "it will often be necessary to give further consideration to the strengths or weaknesses of the applicant's case".

Fraser JA at paragraphs [212], [215] and [220] referred to the failure of the applicant in that case to establish that he had "a strong case" but that was in the context of assessing the applicant's case rather than postulating that an applicant for an extension of time had to establish a strong case on the merits.

I prefer the approach that an applicant for an extension of time need establish an arguable case.  That is consistent with the way in which such applications are normally dealt with.  In this respect, Muir JA said there is "a need to recognise the limitations of the material before the Court on the application for leave, which will be generally untested by cross-examination in comparison with the more extensive material likely to be in evidence on the substantive hearing."  See Hills at paragraphs [76] and [77].

What is involved is an evaluative assessment of whether at the date of death adequate provision has or has not been made from the estate for the proper maintenance and support of the applicant, having regard to the totality of the relationship between the deceased, her husband, and their two daughters,what a wise and just testatrix would do - moral duty or moral obligation of the testatrix to the applicant -, the applicant's financial position, the size and nature of the deceased's estate, any reason stated by the deceased for what she did and the legitimacy of the claims on the deceased's bounty by each daughter.  See Hills at paragraphs [38], [40], [41], [125], [129-137],[144], [145] and 205.

Explanation for Delay

Time expired on the 2nd of June 2008.  The respondent's solicitor, Carolyn Byrne, deposes that on the 30th of October 2007 she advised the applicant's then solicitors,at the latter's request, that the applicant was not a beneficiary under her mother's will.  By e-mail, dated the 5th of November 2007, Ms Byrne, in response to what appears to have been a telephone request for a copy of the will of the applicant's mother, advised the applicant's then solicitors that it would be available through the probate process.  None seems to have been obtained that way.

By letter dated 24th of June 2008 to the respondent's solicitors, the applicant's current solicitors requested a copy of the will of the applicant's father.

By letter dated 21st of July 2008, the applicant's solicitors wrote to the respondent's solicitors in the following terms,  so far as is relevant:

"ESTATE OF THE LATE JOHN EDWARD MYERS

As you are aware, we act for the daughter of the above named, Cheryl Jenal.

Thank you for providing us with a copy of the final will of the above named, dated 7 September 2008.  We note that the will makes no provision for our client.

We are instructed that our client is the only other child of the deceased and that she had a good relationship with both of her parents up until her mother passed away on Father's Day in 2007.  For three months prior to her mother's death, our client lived in her late parents' home with her mother and father for two nights per week for three months; to care for her ill mother and to provide for her father.  This required her to attend to all household duties, including cooking, cleaning, washing and purchasing groceries.  The above named father was unable to attend to these tasks due to his long-standing emphysema, which required him to have oxygen supplied to him at all times.  Our client considered that she had a good relationship with the deceased at least up until her mother passed away, approximately nine months ago.

For reasons unbeknown to our client, her sister, Marcia Fife, informed her approximately six weeks after her mother passed away that her father wished to have nothing more to do with her.  Despite repeated requests, unfortunately Ms Fife would not elaborate on the reasons why this occurred."

By letter dated 11 August 2008 the applicant's solicitors further wrote to the respondent's solicitors in the following terms:

"ESTATE OF THE LATE MARGARET ANN MYERS

We refer to previous correspondence.

We confirm that a Grant of Probate has recently been made by the Supreme Court in relation to the estate of the above named. We are instructed by our client that, shortly after her mother passed away, she was informed that her late father was the sole beneficiary of her late mother's estate.  For that reason, she did not make application for any provision from that estate.

We are further instructed that our client only became aware in July 2008 that her father was not, in fact, the sole beneficiary of her late mother's estate and that there were a number of beneficiaries, including our client's daughter.

We are instructed to make an application for provision from the estate of our client's late mother.  We request that you do not make any distributions from that estate until such time as our client's application has been determined.

In the meantime, we look forward to receiving a copy of the last will of the above named and a copy of the Grant of Probate, as previously requested.

We thank you in anticipation of your assistance."

Each letter is exhibited to Ms Byrne's affidavit.  No replies to either are produced by her.  These letters are, in my view, consistent with the applicant's explanation for delay advanced in her two affidavits filed in support of her application for an extension of time.  The absence of any material in opposition could also be said to be supportive of the applicant's case or at least not to detract from it.

Ms Byrne also refers to when probate was granted, the size and nature of the estate, and to the fact that as at the 28th of April 2009, the estate had been administered as follows only:

(a)  Marcia Fife had been paid $9,706, being the balance of the St George Bank account, less funeral expenses; and

(b)  The real property had been transferred from the name of the deceased to the name of the respondent as executor. Ms Byrne does not deal in any other way with any facts relating to the case for provision advanced by the applicant, or to the applicant's prospects of success in that case.

In her second affidavit, filed on the 9th of February 2009, the applicant deposes as follows:

"3.  In approximately October 2007, I instructed Shane Ellis Lawyers to make inquiries as to whether I was a beneficiary under my mother's will.

5.  I heard nothing further from Shane Ellis Lawyers and I took no further steps in respect of the matter until 28 April 2008, when I contacted Shane Ellis Lawyers again.  I had thought that Shane Ellis Lawyers must have had the matter in hand and I was not too worried about the matter as I simply believed that my mother would have left all of her estate to my father who survived her.  I had thought that my mother and father owned their home jointly and that my father would have simply inherited my late mother's share of that property.  I remember leaving a message with Shane Ellis Lawyers for the solicitor to call me.  I am advised by my current solicitors and verily believe that Shane Ellis Lawyers' records show that the solicitor, Katherine Hanson, called me back that same day and spoke with me for a very short time.  I have no recollection of the substance of the phone conversation I had with her.

6.  I was never made aware of Shane Ellis Lawyers that there was a limitation period in relation to making an application for provision from my mother's estate.  I did not know that there was one.  I only learned of such a limitation period after consulting my current solicitors, O'Reilly & Sochacki Lawyers.

7.  On 19 June 2008 my father, John Edward Myers, passed away. I telephoned Shane Ellis Lawyers again on 20 June 2008 to inquire as to what I could do in relation to finding out whether I had been left anything from my father's estate.  I did this as I had very little contact with my sister, Marcia, who I thought would be the executor of my father's will.  My relationship with Marcia at that time was really poor and I did not want to call her to speak about this matter.

8.  Later on the 20th of June 2008 I contacted my current solicitors, O'Reilly & Sochacki Lawyers, for the first time to inquire as to what I could do to determine whether I was a beneficiary under my late father's will.  They wrote on my behalf to National Seniors Lawyers who provided them with a copy of my late father's will.  It made no provision for me. At that point in time I had still not seen a copy of my late mother's will and nine months had already expired since her death.

9.  National Seniors Lawyers did not provide my solicitors with any detail as to the nature of the estate of my late father.  I instructed my solicitors as to my belief that my father's estate would have consisted of the home that my parents had lived in at Worongary, their Toyota motor car, cash investments and tools and personal possessions.  After I learned that my father had made no provision for me from his estate, I sought advice from O'Reilly & Sochacki Lawyers in respect of bringing an application against the estate for adequate provision from the estate.

10.  By letter dated 21 July 2008 my solicitors, O'Reilly & Sochacki Lawyers, wrote to National Seniors Lawyers putting them on notice that I intended to make a claim against the estate of my late father for adequate provision.  In the course of getting advice from O'Reilly & Sochacki Lawyers, they advised me that there was a nine-month limitation period in respect to making application for adequate provision from an estate.  At that time, I still believed that my parents' property would have all been part of my father's estate.  I instructed my solicitors to try to obtain a copy of my late mother's will.

11.  At around this time, I became aware that my father was not the sole beneficiary of my late mother's estate and had not inherited all of her property.  I raised this with my solicitors, O'Reilly & Sochacki Lawyers.  By letter dated 28 July 2008, my solicitors, O'Reilly & Sochacki Lawyers, wrote to National Seniors Lawyers and asked them to provide them with a copy of my late mother's will and a copy of the Grant of Probate that had issued from the Supreme Court of Queensland in respect of her will.

12.  It was around this time that my solicitors advised me that although I was out of time in respect of my late mother's estate that the Courts may grant leave to make an application for adequate provision out of time.  I instructed my solicitors to put National Seniors Lawyers on notice that I intended to make application for adequate provision out of my late mother's estate and they did this by letter dated 11 August 2008, sent to National Seniors Lawyers, solicitors acting for the estate of my late mother.  At that time, my solicitors had not received the copy of my late mother's will that had been previously requested.  Later that day, after hours, my solicitors received an e-mail from National Seniors Lawyers that attached a copy of the Grant of Probate and a copy of my late mother's will.

13.  My solicitors received written correspondence from National Seniors Lawyers dated 1 September 2008 in which my claims for adequate provision from the estates of my late parents were rejected and they pointed out that I was out of time in respect of the claim against my late mother's estate. My solicitors had previously recommended that I obtain advice from counsel in respect of these matters and particularly before commencing any application, even one for leave to proceed out of time against my late mother's estate.

14.  I instructed my solicitors to send a brief to counsel to obtain such advice and that was done on under cover of a letter dated 3 September 2008.

15.  My solicitors have advised me and I verily believe that they received some oral advice from counsel on or around 3 November 2008 and that as a result of that they wrote, by e-mail, to National Seniors Lawyers that same day requesting details of the assets of my parents at the time of their respective deaths.  My solicitors have further advised me and I verily believe that they received written advice from counsel in respect of my matter on 4 November 2008.

16.  My solicitors have advised me and I verily believe that they received written advice, by e-mail, from National Seniors Lawyers on 3 December 2008 setting out a list of the assets of my late parents at the time of their respective debts.

17.  On 13 November 2008 I instructed my solicitors to cause an application to be made by me for adequate provision out of the estate of my late mother and for an application to be made by me for leave to proceed with such application, although it is outside the nine months since the death of my late mother.

18.  My solicitors have advised me and I verily believe that on 18 December 2008 they sent, by e-mail, a brief to counsel to settle the material for the commencement of these applications and that they received the settled material back from counsel, by e-mail, on 22 December 2008."

See also paragraphs 29-35 of the applicant's first affidavit filed on the 9th of February 2009.

I accept what the applicant says in both affidavits.  It is not contested by any material filed by the respondent. In my view, the applicant has, for the following reasons, proffered an adequate explanation for the delay, and has demonstrated that it is just and proper for time to be extended subject to a consideration of her prospects of success on the merits:

(1)  She instructed solicitors, in about October 2007, and from then until the 24th of April 2008 she thought they had matters in hand.  This was not an unreasonable position for her to take in the circumstances.

(2)  The applicant believed her mother and father jointly owned their home, and that her mother would have left all her estate to the applicant's father, who succeeded her. As to her belief to that effect, I agree with the written outline of argument of Mr Forrest, counsel for the applicant, as follows:  "Such beliefs (sic) were perfectly reasonable in all the circumstances, having regard to general societal norms in respect of property ownership between long-term married couples," (para 2.18).

It follows that I cannot accept Mr Campbell's submission to the contrary, namely, that it was unreasonable for the applicant to proceed on the basis that the house was jointly owned, and that a title search could have been quite easily conducted.  He submitted that a reasonable person would have conducted further investigation.  In the circumstances as they existed here I do not, with respect agree.

(3)  The applicant was not aware of the fact of the limitation period until late July 2008, and then only so far as making a claim on her father's estate was concerned.

(4)  By the 20th of June 2008 the applicant still had not seen a copy of her mother's will.

(5)  The applicant was not initially aware of the importance of the limitation period so far as a claim against her mother's estate was concerned, because of her belief that her mother's estate had gone to her father.

(6)  The applicant's sister confirmed to the applicant some weeks after their mother's death that "everything" - that is, all their mother's estate - was "going to their father" .

(7)  Between the dates of her mother's and father's deaths, the applicant had, as a result of what her sister said was their father's wishes, no contact with her father.

(8)  By the time the applicant knew of the correct position so far as the estates of her mother and father were concerned, the limitation period for making a claim on her mother's estate had expired.

(9)  The respondent's solicitors were advised of the applicant's intention to make a claim by letter dated 11th August 2008.

(10)  The applicant sought further legal advice as to her position.  That was the appropriate thing to do. On the advice of her solicitors, the applicant, on the 3rd of September 2008, sought the advice of counsel as to the merits of an application to extend time and an application for provision from her mother's estate. I was informed from the Bar table that counsel took two months to provide the advice sought.  The applicant is not responsible for that delay.

(11)  Thereafter the applicant, in my view, acted expeditiously.

(12)  Mr Campbell conceded it was not unreasonable of the applicant to obtain a copy of her mother's will and to seek counsel's advice.

(13)  Mr Campbell also conceded that more emphasis should be placed on the first time period; that is, the date of death, the 2nd of June 2008, than the second time period; that is, 2nd of June 2008 to 9 February 2009, and I think that concession was properly made.

(14)  The relatively short time between the 2nd of June 2008 and the 9th of February 2009, and the steps taken by the applicant during that period to obtain advice as to her position.

Prospects of Success

The applicant's case is summarised in her first affidavit filed on the 9th of February 2009 in the following terms:

"1.  I am the daughter of the deceased, Margaret Ann Myers, who died on 2 September 2007, and John Edward Myers, who died on 19 June 2008.

2.  I was born on 23 May 1962 and am forty-six (46) years old. I am married to John Jenal, who was born on 14 October 1964. There are four children of the relationship, all of whom are adults and live independently from me.

5.  As a child I lived with my parents, Margaret Ann Myers (my mother) and John Edward Myers ("my father") at our home at Queanbeyan in southern New South Wales.  I also lived with my older sister, Marcia Fife, who was born on 17 April 1961 ("Marcia").  I recall that my father worked on a full-time basis throughout my childhood for Queanbeyan City Council, whilst my mother worked as a nurse.

6.  Both my sister, Marcia, and I attended a local Catholic primary school.  Marcia was two years ahead of me.  After primary school we both attended the St Benedict's College at Queanbeyan.  I left after one year and went to Queanbeyan High School, which I left when I was in year 9, or third form as it was called then.  Marcia went on to complete year 12.

7.  I do not recall my childhood to be a happy one and there was always a great deal of conflict regarding Marcia and me. Even as a very young child, I recall feeling that I was treated differently to Marcia.

8.  When I was approximately seven years old, I was sexually assaulted by my late father.  This was a very traumatic incident in my life and I now understand it has had a dramatic impact on all aspects of my life; my growing up as a child and teenager, my attitude towards others and to myself.

9.  I recall the first incident occurred when my father took me with him to go wood carting.  I recall I was sitting on a log in the bush and my father came over to me.  He began to fondle my breasts and told me to lay down on the ground.  He then had sexual intercourse with me.  I recall I felt a great deal of pain.  When this happened I was very confused and unsure what he was doing.  I recall he said to me:- 'Don't you tell anyone about this or you will get a hiding.'  I did not tell anyone about what had happened as I was very scared of my father.

10.  I recall the second incident occurred some four to six months later.  I cannot be certain.  I recall my father had taken me with him again to go wood carting and that whilst with him he again forced me to have sexual intercourse with him.  I was still only seven at the time.  Again, I recall my father told me words to the effect:- 'You cannot say anything to anyone about this or you will get into a lot of trouble.' Once again, I was very scared and did not tell anyone about what my father had done to me for several years.

11.  After the incident, I recall my relationship with my father changed dramatically.  I was very fearful of him and as I grew older I appreciated what had happened, I also became distant from him.  I recall as I grew up that I felt very different from my sister and felt that I was treated differently, most particularly by my father who was dismissive of me and seemed to favour my sister.

12.  As I grew up I became more rebellious and began having difficulties at school.  I did not like school and had a distrust and dislike of authority figures, such as my teachers.  As a consequence, I was often in trouble at school. I left school when I was 14 or 15.  I recall this caused a great deal of conflict between me and my parents; but I was not happy at school and refused to return to school.

13.  I recall in my early teens I spoke to a friend at school named Ann Green.  I recall I told her what my father had done to me.  I recall I said words to the effect:- 'Did your dad do that to you?'  I recall after telling Ann Green, I then attempted to tell my mother.  This was very unsuccessful as my mother did not believe me.  I recall I said words to the effect:- 'Mum, dad had sex with me when I was seven.'  She said:- 'That's impossible.  You're nothing but a liar.  Don't ever say that about your father.'

14.  I recall after I told my mother my relationship at home with my parents deteriorated even further and my behaviour also deteriorated.  I became more difficult and rebellious at home.  I did not want to be at home and would often go and stay with friends.  I recall I left home at 16 or 17 years of age when I became pregnant.

15.  After telling my mother of the sexual abuse by my father, it was never discussed again.  Her disbelief of me was very upsetting for me.  Whilst I had a good relationship with my mother after telling her, our relationship was more distant and it took some time to develop again.  My relationship with my father remained distant and had it not been for my mother, I do not think my father would have remained very involved with me.  I have no doubt in hindsight that I was a big disappointment to them compared to Marcia.

16.  When I became pregnant at 17, my parents told me I had to get married and at 17 I married Bernard Keft on 20 October 1979.  Bernard and I had three children from that relationship, namely, Charmaine Keft, born 31 March 1980; Kellie Ann Keft, born 6 January 1982 and Matthew John Keft, born 20 October 1983.  Bernard and I were married for seven years.  We separated in 1982 and divorced on 12 May 1986.

17.  Bernard and I lived in Queanbeyan and I recall that my mother and father remained involved with me and at times would have the children overnight.  When Bernard and I separated I was 19 years of age and had two children under three years.  I was also pregnant with Matthew.  I recall that I had to go on a supporting parents' benefit.  I was solely responsible for the care of the children as I did not receive a great deal of support from Bernard.

18.  In 1986 I met my husband, John Jenal ("John").  John and I married on 23 December 1988.  We have one child from our relationship, namely, Jamie Jenal, born 15 March 1988.

19.  When John and I were married, John immediately assisted me with the care of my three children who were eight, five and three years old.

20.  John and I continued to live in Queanbeyan.  Over the period 1988-2000, I continued to have regular contact with my father and my mother.  I saw them every second day and would regularly go to their home with the children and often they would come to our home.  I would often assist them with shopping or run errands from them.  I considered my relationship with them both appeared to have settled.

21.  In 1993 I had difficulties with my second child, Kellie. Kellie left home and went to live at my mother's home.  My relationship with my parents was again strained and my mother was very critical of how John and I had raised the children, especially Kellie.  At the end of approximately four months away, Kellie returned home.  After this my relationship with my parents improved again.

22.  In the period between 1993 and 2000, I continued having regular contact with my mother and father.  I would see them once or twice per week and would also speak with them on the phone.  I was regularly running errands for them and buying groceries and taking them out.  I recall giving my mother and father various pieces of furniture during this period, including a gas heater, a lounge, a fridge and a bed.  John would also go to their home and complete maintenance around their home.  I considered my relationship with my parents in this period to be a very good one.

23.  In 2000, John and I relocated with the children but for Kellie, to Burringbar in northern New South Wales.  Kellie had already moved out of home.  After I left Queanbeyan, I remained in regular contact with my parents.  I would ring them weekly, if not twice weekly.  I recall visiting them in both 2001 and 2002, approximately three times each year.  On each occasion we stayed with them at their home in Queanbeyan. Again, during this period I considered I had a very good relationship with mum and dad.  We remained in regular contact.  We sent cards and presents and we saw them at every available opportunity.

24.  In 2002, my parents sold their home in Queanbeyan and moved to Nerang.  My parents lived in a caravan in the front yard of Marcia's property for three months until they found their home at Nerang.  I was not involved in my parents' purchase of the Nerang property, which I now understand was purchased in my mother's sole name.  After my parents moved to Nerang, I continued to have regular contact with them.  I would ring at least once a week and speak to both parents and visit a minimum of one to two times per month.

25.  Over the five years between 2002 and 2007, I considered that my relationship with my parents, and particularly my mother, to be a good one.  We spoke regularly and I was not aware of any conflict in my relationship.  My parents' home was approximately 60 kilometres away from our home at Burringbar and at times, at mum's request (which occurred from time to time).  I recall during one of my visits I was speaking with my mother about my father and the fact that I did not feel he was close to me.  I recall saying words to the effect:-  'Mum, I always felt I was on the outer.  I couldn't understand why dad was so nasty to me.'  She said:- 'Don't worry, Cheryl.  Your father hasn't been happy with you since you went to the Centralion trip.  At the station you didn't kiss him goodbye.'  I said:- 'Mum, that was years and years ago.'  My mother and I never talked about my relationship with my father at any other time.  At no time did the issue of my sexual abuse get raised by my mother or me.  At all times I believed that I had a good relationship with my mother, though I understood and accepted that my relationship with my father was different.

26.  In 2007, my mother became unwell.  My mother passed away on 9 September 2007.  In the three months prior to her death, I went to her home regularly to help my father care for her. I went up weekly and would often stay two or three nights. During this time I cleaned the house, did the cooking, and did the weekly shopping.  On each occasion I would bring groceries, cooking and food to assist them over the week.  I tried my best to support my mother, who had lung cancer, and to support my father.  I would stay with my mother to make her comfortable and remained at their home to support my father who was frail and unable to care for my mother alone.

27.  I recall that during this time my sister, Marcia, would also come over.  At times this became difficult and there was often tension between Marcia and me.  My father would often get involved and supported Marcia.  My mother was aware of this tension and I recall before her death, my mother said words to the effect:-  'I know Marcia tells lies but she's been good to me since I've been sick.'

28.  I was present at my mother's bedside on the day of her death.  I recall Marcia had gone to Melbourne on 7 September 2008 to see Phantom of the Opera.  When my mother's condition deteriorated, I rang Marcia to ask her to come home as mum was unwell.  Marcia arrived home on the night of 8 September 2008 and my mother died the next day.

29.  I was devastated by my mother's death and wanted to be there for my father in the immediate period after her death. On the afternoon of my mother's death, I recall approaching my father to talk with him.  I recall saying words to the effect:-  'How are you doing, dad?  Are you okay?  Is there anything I can do?'  He said:- 'Just leave me alone.  Get out. Just get out.'  I said:- 'Dad, I know you're upset but what's wrong?  Why are you saying this?'  He said:-  'Just leave, get out.  Just get out of here.'

30.  I was very upset and distressed but I left.  I did not want to make him more upset.  I was not sure what I had done to make him respond to me like this.  I recall I went home and was very upset.  I felt I needed to talk with someone and called a friend, Sue Whiting.  I recall I talked with Sue about my father and I spoke to her about my father's sexual assault of me.  I recall that my father telling me to 'get out' brought back many feelings about my relationship with him, thoughts and feelings which I had for many years about the sexual assault.

31.  At the funeral on 6 September 2007, my father did not speak to me at all.  I tried to speak with him but he refused. Marcia was at my father's side and I was pleased that he had support.  Marcia also appeared reluctant to talk with me.  I had little contact with Marcia for several weeks after my mother's death.  We met some weeks after my mother's death at The Pines at Elanora and when I asked about my father, Marcia said words to the effect:- 'Dad doesn't want to see you or speak with you.'  I recall saying:-  'Marcia, why?  Why doesn't he want to talk with me?'  She said:-  'Just leave him be.  Leave him.  I don't know why but he doesn't want to.'

32.  Prior to the meeting, Marcia had asked me to bring a list of things I wanted from my mother's possessions.  At the time I did not ask Marcia if there was a will, but I did say words to the effect:-  'Marcia, everything will be going to dad.' She said:-  'Yes.'  I also said:-  'Marcia, do you have the knitting bag with needles?'  She said:- 'The executor has many of mum's and dad's things and they will get sorted out.'  I took little notice of what Marcia had said as I was very upset and could not understand my father's reaction.  I had been at his home for over three nights per week over a period of three months caring for my mother and my father had not reacted to me at any time before during that three months.

33.  Following my mother's death, I made inquiries regarding my mother's estate with my then lawyers, Shane Ellis Lawyers. I seek leave to refer to my affidavit sworn on 20 January 2009.  This affidavit has been prepared in support of my application to commence these proceedings out of time.

34.  My father died on 19 June 2008.  Between the date of my mother's death and my father's death, I did not have any contact with him.  I dearly wanted to speak with him and spend time with him, but my sister had made it clear that he did not wish to have any contact with me.  I had no choice but to respect these wishes.

35.  After my father's death, and as a result of inquiries made by my solicitors, I became aware that a title search in respect of my late parents' property at Nerang identified that the title to the property had been registered in the name of Sandra Maree Wolfenden, a very close personal friend of my sister, as personal representative.  I also became aware that the property had been registered solely in my mother's name prior to her death and not in my parents' joint names.  As a result, I instructed my solicitors in early August 2008 to write to the solicitors for my mother's estate to obtain a copy of my late mother's will and the grant of probate.

36.  I was very upset when I received my late mother's will and it indicated that certain sums of money were to be distributed to five of my mother's grandchildren, including my daughter, Kellie, and that all of the residue of the estate was to pass solely to my sister, Marcia.  The will made no provision for me and there is no explanation contained in my mother's will as to why I did not receive any provision from her estate.

37.  I have never received any gifts of money from my late mother or my late father during their adulthood.

38.  I was educated to year 9 and have no formal qualifications or training.  Following my marriage in 1979, I was involved in home-making responsibilities.  I did not return to work until approximately 1986.  I worked primarily on a part-time basis completing manual work.  I also assisted my husband, John, in his earthmoving business two to three days per week.  On the days that I worked for John, I would call into my parents' home for lunch and my mother would always have a cooked lunch prepared.

39.  In February 2008, I took over a cafe business located at Mooball.  This business has been unsuccessful and the business will be closing down at the end of my lease.  I have to work very long hours in the business which has consistently been operating at a loss.  In the period between February to June 2008, the business lost $15,503.  Unfortunately, I have a lease to 11 April 2009 and whilst I have reduced the losses of the business, this has been achieved by me taking on the primary responsibility of running the business and not employing staff.

40.  My assets, which I own jointly with my husband in equal shares, are as follows:-  (i) Home at Burringbar E$400,000. (ii) Holden Crewman ute, E$25,000.  (iii) Hilux ute E$5,000. (iv) Bedford campervan, $8,000.  (v) Joint savings accounts, $7,000.  (vi) Backhoe, $60,000.  (vii) Another backhoe, $25,000.  Total $525,000.

41.  My liabilities which I owe jointly with my husband are estimated as follows:-  (i) Mortgage over home at Burringbar $145,000.  (ii) Car loan, $30,000.  (iii) Loan on backhoe, $60,000.  (iv)  Overdraft for business, $50,000.  (v) Australian Taxation Office, $40,000.  Total, $325,000.  Net total - jointly owned, $200,000.

42.  I am almost solely reliant on income my husband, John, generates from his excavation business.  John's income is very unpredictable and depends not only on demand but also on weather.  The current economic crisis has had a very significant effect on John's income as building and construction work has slowed down.  Much of our income is applied to meeting our existing liabilities.

43.  I have no superannuation.  My husband, John, has no superannuation.  Our income does not provide for payment of our superannuation or financial needs in the future.  I am 46 years of age and I am concerned about my financial well-being into the future.  After I close the cafe business I will need to find alternative employment.  My age and lack of qualifications and the present financial and economic circumstances means that it will be difficult to obtain employment.

44.  I do not propose that any of the assets of my late mother's estate be exonerated from any order of the Court in these proceedings."

I accept what the applicant says.  It is not contested by the respondent.

Mr Campbell submitted that the applicant has no prospects on the merits at all and that, more so with a small estate such as the present, a married daughter applicant needs to establish a special need or a special claim.  Mr Forrest, on the other hand, submitted that no accepted principle required the applicant to go so far in her claim.

In his outline of argument Mr Campbell makes the following points:

"16.  The applicant is a middle-aged married woman with a reasonably secure financial position although she deposes that she has no income other than that of her husband whose work has slowed down as he is in the building and construction industry.  No documentary evidence has been filed in this regard.

17.  She paints a picture of running a business that has been suffering ongoing losses but she has an interest in a matrimonial property with an estimated value of $400,000 and a mortgage of $145,000.  No documentary evidence has been filed in this regard.

18.  She also paints an extensive picture of sexual abuse of her as a child by her father to such an extent that one queries whether or not this seems to be the motive and the basis upon which her application is made.

25.  It is seriously open to question as to whether or not any award would be made in favour of the applicant given as noted earlier she is a married woman whose husband works.  As well she has no dependant children and is relatively debt free save and except for a small mortgage.

26.  De Groot and Nickel (supra) page 114, indicate that the following principles apply in relation to married daughters: (i)  Applications by married daughters in good health who are being supported by their husbands tend to be treated similarly to applications made by adult sons who are supporting themselves.  They are not in a strong position as applicants, and in a number of cases the applications have failed. (ii)  If, as suggested above, adult daughters are now to be treated similarly to adult sons, it is likely that the Courts will insist that the same principles apply, that is, it must be, as a general rule, some special need or special claim before the Court will consider making further provision for them.  For example the need for the support and education of a child. (iii)  It would seem that in the case of a small to modest estates (as is the case here) a married daughter would have to show some special need or claim before she could expect some provision at the hands of the Court."

The absence of documentary evidence and the suggested motive for the application were not seriously pursued, and in any event the applicant was not required for cross-examination.

I am not satisfied that a married daughter seeking part of a modest estate must establish a special need or special claim. Mr Campbell referred to De Groot and Nickel, Family Provision in Australia, Third Edition.  The following passages from paragraph 3.31 of that text do not appear to disentitle the applicant here, for the reasons advanced by Mr Campbell.

"[3.31]  Applications by married daughters in good health who are being supported by their husbands tend to be treated similarly to applications made by adult sons who are (or who are capable of) supporting themselves.  They are not in a strong position as applicants, and in a number of cases their applications have failed.

Where the daughter is married to a husband earning a low income, has dependant children, or is otherwise in need, she may be awarded a sum equal to that received by her siblings under the will 195 or she may be awarded a substantial share in the estate.

Provision is not limited to immediate needs.  The daughter's fortunes might unexpectedly change and some provision to cover future possible misfortune may be justified, for example, a mortgage on the matrimonial home may become a great burden if the husband's earning capacity were reduced.  Other contingencies which have been taken into account include the probability that a health condition (such as increasing deafness or lameness) would reduce employment opportunities and that the existing provision in a will might soon be inadequate to support the applicant.

There has been a distinct change in attitude by the Courts to applications by married daughters in recent years.  For example, in Little v. Angus 203 the New Zealand Court of Appeal said, 'We accept that the claims of married daughters are to be approached at the present day somewhat more liberally than in the past.'

In Re Bodman 204 Hoare J said:  'In the case of a married daughter it is clear that the mere fact that she is presently supported by her husband does not disentitle her from claiming under the Act'.

Perhaps the best expression of need for applicants in this category is found in the joint judgment of Fullagar and Menzies JJ in Blore v. Lang, where their Honours say, 'In a case such as this, where the applicant is a married woman with a healthy husband in satisfactory employment who supports her in reasonable comfort, her need is not for the bread and butter of life but for a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit.'

If, as suggested above, adult daughters are now to be treated similarly to adult sons, it is likely that (except in New South Wales) 216 the Courts will insist that the same principles apply, that is, there must be, as a general rule, some special need or special claim before the Court will consider making further provision for them.

The examples of special need or special claim mentioned in the context of adult sons would no doubt also apply in the case of adult daughters.  Again, it is a case of approach rather than jurisdiction.

It would seem that in the case of small to modest estates, a married daughter would have to show some special need or claim before she could expect some provision at the hands of the Court."

At any rate, these various matters are clearly arguable in the applicant's favour.  At the end of the day, the question to be determined is whether the applicant has been left without adequate provision for her proper maintenance and support, and in the present circumstances I am satisfied, for the following reasons, that the applicant has established that she has an arguable case in that respect; it is not a case which would probably fail or in which she has distinctly improbable prospects of success:

(1)  The size of the estate.

(2)  The moral duty of the deceased to both of her daughters, and what a wise and just mother would have done in the circumstances.

(3)  The absence of any apparent reason for preferring one daughter to the other, or some grandchildren to the applicant.

(4)  The somewhat arbitrary nature of the dispositions by the applicant's mother.

(5)  The applicant's modest financial circumstances at the date of her mother's death which would also have been known to the deceased.

(6)  The fact that her father's sexual interference of her in all probability contributed to her behavioural problems whilst growing up, and to the resultant conflict with her parents, and their apparent preference for the applicant's sister.

(7)  Her mother's refusal to believe that the applicant's father had sexually interfered with the applicant, and the extent this may have later influenced her mother in her testamentary dispositions.

(8)  The continued contact between the applicant and her family and her parents, for better or for worse, and the applicant's assistance to her mother when the latter became unwell in 2007.

(9)  The relationship between both daughters and their parents.

(10)  The fact that the applicant clearly has a legitimate claim on the bounty of her mother, more so when her father has contributed to the estate of her mother.

(11)  The fact that the father of the applicant contributed to the estate of the applicant's mother.

For these reasons the application to extend time will be granted, and the time for making the substantive application will be extended up to and including the 9th of February 2009.

I order that the applicant pay the respondent's costs of and incidental to the application, to be assessed on the standard basis, unless agreed.

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