Pitman v Chant[2005] QSC 38

SUPREME COURT OF QUEENSLAND

[1] MOYNIHAN J:  This is an application for an extension of the time in which to seek orders for adequate provision for the proper maintenance and support of the applicant out of the estate of Mary Ellen Jane Chant.

[2] The applicant and Robert Chant were named executors but in the event the Public Trustee obtained an order to administer the estate on 19 February 2003.  The net value of the estate is of the order of $290,000. 

[3] Mary Ellen Chant died on 7 September 2002.  By her last Will dated 20 April 1995 she left her jewellery to the applicant and the bulk of her estate to her son Kevin. 

[4] The applicant is one of the three surviving children of Mary Ellen Chant the others being her brother Robert who was born on 13 May 1931 and her twin brother Kevin Francis Chant.  The applicant and Kevin were born on 12 December 1936.

[5] Kevin is intellectually disabled and suffers from diabetes.  He resided at home and was cared for by his mother until 20 May 1999.  Since that date he has been a permanent resident at Brassall Village Nursing Home.  He is incapable of giving a valid discharge for the delivery of his share of the estate.

[6] Kevin needs to live in a supported environment and to be supervised in looking after himself.  He requires full assistance for housekeeping, meal preparation, shopping, laundry, transport and community access arrangements.  He requires support in respect of any legal and his financial affairs.  It should be noted that the Public Trustee does not manage his affairs.

[7] The nine month period provided for by s 41(8) of the Succession Act expired on 7 June 2003. 

[8] The applicant sought legal advice shortly after her mother’s death.  She attended at the Public Trustee in Ipswich on 10 October 2002.  She was advised to seek independent legal advice and did so.

[9] The applicant’s then solicitors (they are no longer involved) advised the Public Trustee that she was contemplating a claim against the estate by letter of 18 October 2002 and on 23 October the Public Trustee provided details of the estate.

[10] On 3 November 2002 the applicant attended the Public Trustee’s office advising she wanted to renounce her executorship and to claim against the estate.

[11] On 18 November 2002 her then solicitors advised the applicant as to the prospects of her making a successful claim and that the costs of pursuing it would be up to $25,000.  The letter went on to advise the applicant that she was required to formally advise the Public Trustee and her brother within six months of the date of the deceased’s death of her claim and that if a settlement could not be negotiated she must institute proceedings within nine months of the death.  The solicitor’s letter noted that the applicant had advised that she wished to take no further action on the claim for the moment and went on to say “Please be aware of the time limits mentioned above”.

[12] On 9 December 2002 Robert advised the applicant’s solicitors that he would not be lodging a claim under the estate and renounced his executorship and stated that it was more appropriate to negotiate with the Pubic Trustee rather than him.

[13] I am satisfied Robert made it clear to the applicant soon after their mother’s death that he did not intend to make a claim against the estate or to negotiate a settlement on behalf of his brother Kevin.  He filed an affidavit controverting aspects of her claim and of her affidavit concerning him.  He did not participate in a mediation subsequently referred to but that was not the cause of its failure.

[14] After her then solicitors advised the applicant that they required $30,000 in order to proceed with her application and she did not provide them with the funds she unsuccessfully sought legal aid to pursue her claim.

[15] On 1 February 2003 the applicant notified the Official Solicitor, Public Trust Office and the Public Trust Office in Ipswich that she sought “to make formal” her claim against her mother’s estate.  In the document described as a statement of claim she gave details why the will failed to recognise her financial and personal needs and would not satisfy Kevin’s. 

[16] The Official Solicitor at the Public Trustee responded by letter of 24 April 2003.  The letter stated that the Public Trustee’s primary role as executor was to uphold the will and that the Disability Support Unit in the Public Trust Office had been asked to provide assistance in contacting Kevin. 

[17] The view was expressed that finding a quick resolution would be difficult and that the applicant should endeavour to seek the cooperation of her brother Robert for an easy negotiation.  As I have said Kevin had made his position clear.

[18] At around about 2 July 2003 the applicant apparently approached the Dispute Resolution Centre, Department of Justice and Attorney General, with a view to a mediation of her claim. 

[19] A mediation was held on 14 October 2003 but did not achieve a resolution.  There is no satisfactory explanation for the delay from July to October to arrange the mediation.

[20] It emerged at the mediation that Kevin was incapable of giving instructions or entering into an agreement.  The applicant and her husband became agitated and left.  Robert did not attend but that is not why the mediation failed. 

[21] On 14 October 2003 the applicant’s husband had a phone conversation with an officer of the Office of the Public Trustee discussing her claim against the estate and was advised that the applicant needed to file her claim in the District Court to preserve her rights. 

[22] The applicant then deposes that the District Court at Ipswich was contacted and some unknown person said that she needed a solicitor to file the claim as the court would not accept the claim prepared by “them”; the applicant and her husband.

[23] The applicant did nothing further at that stage.  She states that having been advised by her previous solicitors as to the costs and likelihood of success she did not believe she could engage another solicitor as she could not afford the costs. 

[24] By a letter dated 2 February 2004 the Official Solicitor to the Public Trustee noted that the applicant had not commenced her claim within nine months from the date of death and advised that it was proposed to distribute the estate regardless of the claim unless an agreement had been reached between the applicant and the other beneficiaries. 

[25] The applicant then engaged solicitors who organised the funding of an application and on 15 March 2004 filed an originating application for provision out of the estate.  That claim named the other beneficiaries rather than the Public Trustee as respondent. 

[26] The solicitors referred to in the preceding paragraph went into receivership and the applicant retained new solicitors who instructed counsel in the application before me.

[27] The principles upon which the court will extend time in cases such as this have been comprehensively considered in Clayton v Aust[1] at 366.  See Re Salmon (decd)[2] at 175; Bird v Bird[3]  and Warren v McKnight[4]. 

[28] The first matter to be considered is the circumstances of the delay.  The applicant was advised by the Public Trustee shortly after the death of her mother to seek independent legal advice.  That legal advice was unequivocal as to the existence of the time limit and the need to observe it.

[29] It ought to have been apparent to the applicant well before the expiration of the limitation period that Robert was not pursuing any claim, had little or no interest in negotiating and was not prepared to negotiate for Kevin.

[30] The applicant chose not to put her first solicitor in funds and did nothing to retain another solicitor until after the Public Trustee’s letter of 2 February 2004.

[31] The applicant’s financial circumstances are constrained.  Having chosen to do nothing to retain a solicitor from early 2003 she was however able to retain one from February 2004 and now has a second solicitor acting for her.

[32] It is perhaps unfortunate that after the expiration of the period of resolution by way of mediation was pursued without reference to the time limit having expired and that filing in the District Court was mentioned after the expiration of the period.

[33] Nevertheless the applicant had been unequivocally advised to obtain independent legal advice and that independent legal advice was unequivocal as to the necessity to file within the statutory time. 

[34] The applicant pursued her claim without legal assistance after she had declined to put her solicitor in fund until she retained solicitors on 11 February 2004 after the Public Trustee notified its intention to distribute the estate by letter of 2 February 2004.

[35] The fact that the applicant did not file proceedings before that time was as a result of her decision not to fund or to seek funding other than by way of legal aid.  Once she decided to retain a solicitor she was able to do so but the limitation period had expired.

[36] The applicant was on notice as to her brother Robert’s position well before the expiration of the time period.  That attitude, even if her version is accepted, is not a justification for delay.

[37] The applicant relied on Barney v Suler[5] where correspondence was construed a founding and estoppel preventing the subsequent taking of a limitations point.

[38] I am not satisfied on the facts that this is a case in which the applicant was induced to explore and did explore a consensual resolution on the basis of implied representation by the administrator of her mother’s estate that it was unnecessary to observe the time limit or that there has been a waiver or estoppel excluding its application. 

[39] I turn to the consideration of prospects of success.  It is a modest estate.  It appears that if an application were to proceed there are highly contentious issues of fact.  In that context it can nevertheless be said that while the applicant’s case may have some merit there seems to be a strong case of significantly superior obligation to and need on the part of Kevin Francis Chant which the testator was bound to take into account.

[40] The circumstances being those I have canvassed I am not satisfied that the applicant has made out “a substantial case” for it being “just and proper for the court to exercise its statutory discretion to extend the time”; Re Salmon[6] at 175.  I therefore dismiss the application.