Testator's Family Maintenance: Late Applications—Easterbrook v. Young

AuthorC. J. Rowland
DOI10.1177/0067205X7800900204
Publication Date01 June 1978
SubjectComment
COMMENT
TESTATOR'S
FAMILY
MAINTENANCE:
LATE
APPLICATIONS-EASTERBROOK
v.
YOUNG
By
C. J.
ROWLANO*
Easterbrook
v.
Young1
is
of great importance for the law relating to
Testator's Family Maintenance, particularly since the High Court, in
its unanimous judgment, pointed out that it would affect not only New
South Wales, but other States as well.
The facts were that an intestate left asmall estate in which the major
asset was acottage. The beneficiaries under the intestacy law were the
intestate's wife and the two sons of the marriage. Each beneficiary was
entitled to aone-third share in the estate. In 1959 letters of adminis-
tration were granted to one of the sons and the cottage was transmitted
to him as administrator, but the beneficial shares to which the benefici-
aries were entitled were never formally transferred to them. The debts
having been paid, the two sons agreed to allow their mother, the
applicant, to continue to live in the cottage, and this arrangement
continued to operate until 1973, when the mother applied for T.F.M.
-fourteen
years after the grant of letters of administration.
The grounds were that the cottage was not in good repair, and
substantial expenditure on maintenance was needed. This the appellant
could not provide, as she had no income apart from an old age pension.
Section
5(2A)
(a)
of the Testator's
~amily
Maintenance and
Guardianship
of
Infants Act 1916 (N.S.W.)2 empowers the court to
grant an extension of time subject to the rule that "every application
for extension shall be made before the distribution of the estate".
Section
5(2A)
(a),
in relation to late applications, continues:
and no distribution of any part of the estate made before the
application shall be disturbed by reason of the application or of an
order made thereon.
However, where an application
is
made within the time limit, section
11
(3)
applies:
Nothing in this section shall prevent the court from ordering that
any provision under this Act shall be made out 'of any assets
so
distributed.
The question therefore arose: could an extension of time be granted?
Had the asset (i.e. the cottage) already been "distributed"?
In
the
B.A., LL.B.
(Natal);
Lecturer in Law, Australian National University.
1(1977)
13
A.L.R. 351; [1977] A.E.G.R. 70-075; (1977)
51
A.L.J.R. 456.
Barwick C.J., Mason and Murphy JJ.
In
this note page references are
to
the
A.L.R. The writer gratefully acknowledges the help given by Mr Ric Lucas in
preparing this note.
2Hereinafter called the T.F,M. &G.
of
I. Act.
218
1978] Testator's Family Maintenance 219
Supreme Court of New South Wales3Holland J. held, on the basis of
case authority,
that
the estate
had
been finally distributed. IIolland J.
would have preferred to hold, on the wording of the T.F.M. and G. of I.
Act and the Wills, Probate and Administration Act 1898 (N.S.W.)4
that
there had been no final distribution.
On
appeal to the High Court
Barwick C.J. and Mason and Murphy JJ. in ajoint judgment held
that
they were not bound by the earlier decisions by which Holland J. had
regarded himself as bound, and on the basis of the unreported judgment
of Mahoney J. in
A.H.
Keys (deed) &T.F.M. ActS and particularly on
the legislation itself, "read in accordance with the purpose and policy of
the Act as evidenced by its provisions"6 held
that
the estate had not been
finally distributed and
that
the applicant could therefore be granted
testator's family maintenance
out
of the estate.
In
the result the High
Court allowed the appeal, extended the time and ordered that the
entire interest in the real
estate-i.e.
the
cottage-be
vested in the
mother to the exclusion of the sons.
The first question which arises is: when did the property cease to
form
part
of the estate of the deceased? T'he High C'ourt simply over-
ruled those cases which held
that
distribution of an asset had taken
place
(and
that that asset was therefore not available for alate
testator's family maintenance order) if the capacity in which the
personal representative held the property changed from personal
representative to trustee. The new test laid down by the High Court
is
formulated thus:7
the disabling circumstance in s 5
(2A)
is
the actual distribution
of the estate, its removal from the hands or name of the personal
representative and its placement in the hands
or
name of the
testamentary
or
statutory beneficiary.
The High
Court
seems to have made an effort to ensure that the
principle it propounded would apply indifferently to executors and to
administrators. Thus, throughout the judgment, although the estate
in question was intestate, the law relating to wills and executors
is
discussed. Indeed, the Court seems to have devoted more attention to
the rules governing executors than to those governing administrators.
Thus8the Court said
that
the:
fundamental question to be decided, then,
is
whether the change
in the capacity of the executor or administrator, if indeed in the
latter case there
is
any such change, in whose hands
or
name the
property remains
is
relevant to the construction of the Act.
The Court never decided whether
"any
such change" takes place in
the capacity of an administrator.
Nor
did they consider whether there
should be any difference between an executor and
an
administrator.
3Easterbrook
v.
Young
[1974] 1N.S.W.L.R. 676.
4Hereinafter the W.P.A. Act.
SCase No. 690
of
1972 Equity; judgment delivered
on
6June 1974.
6Easterbrook v.
Young
(1977)
13
A.L.R. 351, 356, c/. 358, 364.
7Id.
358
1.
15;
ct.
358
1.
36.
sid.
357.

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