Neutral Citation no. [1999] 1996

Ref:

GIRJ3020

 

 

 

Judgment: approved by the Court for handing down

Delivered:

29/10/99

(subject to editorial corrections)

 

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

CHANCERY DIVISION

 

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IN THE MATTER OF THE ESTATE OF DOUGLAS McATEER DECEASED

 

- AND -

 

IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY

AND DEPENDANTS) (NORTHERN IRELAND) ORDER 1979

 

BETWEEN:

SAMUEL McATEER

Plaintiff;

AND

 

1. JOHN McATEER

2. ANNIE SPEEDIE

3. PATRICIA THOMPSON

4. EILEEN ORR

Defendants.

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JUDGMENT

 

GIRVAN J

 

INTRODUCTION

By an originating summons issued on 11 June 1999 the plaintiff seeks an order under the 1979 Order seeking reasonable financial provision out of the estate of Douglas McAteer deceased ("the deceased") who died on 26 February 1998 leaving a will dated 11 October 1996. Probate of the will was granted to the first defendant as sole executor on 18 May 1998. It is clear that the originating summons was issued after the expiry of the prescribed six month period within which applications under the Order should be brought. The plaintiff seeks an extension of time for the bringing of the proceedings and this was dealt with as a preliminary issue.

FACTS

By his will the deceased left his estate to his widow Annie McAteer for life with remainder to the plaintiff for life and on his death the estate was directed to be divided equally between the second, third and fourth defendants being the deceased's daughters. The estate comprised lands of some 52 acres with a farmhouse, farm buildings and a cottage in which the plaintiff resided for a period and in which the widow now resides. The plaintiff alleges that he left school at 15 and thereafter farmed the lands without a wage though he was given money from time to time by his mother. He avers that on occasions he expressed the desire to leave the lands but that the deceased and the widow told him that the lands would be his when the deceased died. The deceased and the plaintiff appear to have had on occasions a somewhat fractious relationship and for a period in 1984 the plaintiff moved out. During this period the deceased sold the dairy stock. The deceased and the plaintiff appeared to have thereafter reconciled to some extent. The plaintiff renovated a dilapidated cottage on the lands and lived there and he helped build up the stock level on the farm. The plaintiff claims that he owned the farm assets and operated the farm bank account. He carried out land reclamation work, fencing work and restored buildings and did other necessary repairs. The parties had another disagreement in 1996 when the deceased asked him to leave but the deceased was persuaded to allow him to continue to stay on the lands.

The plaintiff in his affidavit stated that on learning of the terms of the deceased's will he attempted to discuss a family settlement with his mother and sisters. The plaintiff has moved into the farmhouse which requires significant repairs and the widow has moved into the cottage. The estate has not been distributed although the debts, funeral and testamentary expenses have been discharged and an assent has been executed vesting in the widow her life interest. A building site on the lands has been sold for 43,500 and some of this money has been advanced to the widow. The plaintiff asserts that the reason why he did not issue proceedings earlier was that he had hoped to negotiate a satisfactory family settlement without having to resort to proceedings.

The second defendant in her affidavit said that there had been some negotiations between the plaintiff, the widow and the sisters that these had finished in the summer of 1998 and it was abundantly clear at that stage that there would be no agreement.

In a further affidavit sworn on behalf of herself and her sisters she set out the grounds for opposing substantive relief. According to the sisters' case the plaintiff was already benefiting substantially under the will and the sisters' entitlement only fell in after his death. The plaintiff was engaged in farming of the lands during his lifetime and benefited thereby and since the death of the deceased has continued to enjoy the profits of the land without having to pay rent to his mother who is unlikely to demand any rent from him. It is claimed that the plaintiff did not really help the deceased during his lifetime with the farm work to any substantial degree and that the two were in endless dispute.

The plaintiff in response alleged that there were ongoing discussions with the third and fourth defendants up until the summer of 1999. The executor in his affidavit says that negotiations ended around March of 1999.

LEGAL PRINCIPLES

Under Article 6 an application for an order under Article 4 shall not except with the permission of the court be made after the end of the period of six months from the date on which representation in respect of the estate of the deceased is first taken out.

In Re Salmon [1981] Ch 167 Megarry J laid down certain guidelines upon the exercise of the court's discretion to extend the time limit. As pointed out in Tyler's "Family Provision" 3rd Edition at 333 et seq it is possible to see that in subsequent cases the attitude of the courts has tended towards a greater liberality in the granting of extensions of time.

In Re Salmon Megarry J accepted the wide and unfettered discretion of the court. The applicant must make out a substantial case for it to be just and proper to exercise its statutory discretion. In some more recent authorities the courts have proceeded on the basis that there must be some prejudice to the respondent from the granting of an extension of time. More recent case law tends towards an emphasis on prejudice, a less rigorous examination of the reasons for delay and a refusal to enquire in depth into the merits save as a purely threshold test.

Megarry J stated that in carrying out its functions under the provision the court has to look at all the circumstances. In appropriate cases leave could be granted even after substantial delays of months or even years. (See the authorities discussed in Tyler at 335 et seq).

The test of adequacy of the reasons for the delay can be overstated. Tyler submits, correctly in my view, that the correct approach to giving an explanation for any delay was laid down by Croom-Johnston LJ in Smith v Loosley (18 June 1986 unreported):

"It was submitted to us on behalf of the beneficiaries that the reason why the application is being brought is something which has to be satisfactorily explained before one proceeds further in order to see whether or not the application should be entertained. It was submitted that, if the explanation is missing or is in some way unsatisfactory, bound up as it may be with the length of the delay, that is something which in effect should conclude the matter. But in my view that is not the correct approach. The discretion which is in the court as to whether it would extend time under section 4 is a whole discretion."

 

Megarry J stated that it was material whether negotiations had been commenced within the limit. Such negotiations inform the defendants that a claim is being made. Negotiations might on occasions be regarded as a waiver by the defendants of the time limit. Negotiations commenced after the time limit might also aid the applicant at any rate if the defendants have not taken the point that the time limit has expired.

Megarry J stated that it was important whether the estate had been distributed or not. If the estate has been distributed the personal representatives are immune from liability. In considering whether the estate has been distributed the courts are unconcerned with the change in capacity from personal representative to trustee which occurs when administration is complete.

In deciding whether to allow applications out of time the courts have adopted a threshold test of whether the applicant has an arguable case or a triable issue. Clearly if a case is unarguable or wholly without merit the court would decline to extend time. Equally clearly if a case has very strong merits this would be a strong factor weighing heavily with the court in extending time if the defendants have not in reality been prejudiced by the delay.

DECISION

In this instance the plaintiff has an arguable case. His case does not fall at either end of the spectrum ranging from unarguable to very meritorious. The estate has not been administered and his sisters' shares have not fallen into possession. There is nothing to suggest that they have taken any steps such as selling their remainder interest which would cause them or any successor in title significant prejudice if the matter were to proceed. There clearly were some family discussions from which the plaintiff hoped to achieve some sort of amicable resolution of his complaints about the adequacy of the will's provisions. The sisters clearly must have understood that he was not happy with the terms of the will of the deceased. While in the context of ordinary civil litigation the fact that negotiations are taking place is not normally a good reason not to issue proceedings to avoid a limitation defence family disputes represent a somewhat different type of case. Time and again the court stresses the desirability of family members resolving their disputes out of court and a court involved in such family disputes can understand the reluctance of family members resorting to litigation if this can be avoided.

In this case I consider that on balance the court should grant an extension of time and allow the matter to proceed.


1999 No.1939

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

GIRJ3020

CHANCERY DIVISION

 

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IN THE MATTER OF THE ESTATE OF DOUGLAS McATEER DECEASED

AND IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY

AND DEPENDANTS) (NORTHERN IRELAND) ORDER 1979

 

 

BETWEEN:

SAMUEL McATEER

Plaintiff;

AND

 

1. JOHN McATEER

2. ANNIE SPEEDIE

3. PATRICIA THOMPSON

4. EILEEN ORR

Defendants.

 

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J U D G M E N T O F

 

 

GIRVAN J

 

 

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