Winter-Cooke v Winter-Cooke

[2022] VSCA 264

Victorian Court of Appeal

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Interrogate

Catchwords

1. Administration and Probate
2. › Family provision
3. › Application for extension of time
4. › Lengthy delay
5. › Whether satisfactory explanation for delay
6. › Whether claim for further provision arguable
7. › Whether other beneficiaries prejudiced
8. › Whether judge erred in refusing extension of time
9. › Administration and Probate Act 1958 (Vic), ss 91, 99
1. Appeal
2. › Leave to appeal
3. › Discretionary decision
4. › Application of [name withheld] v The King principles
5. › Whether primary judge acted on wrong principle or failed to take into account material consideration
6. › Whether decision unreasonable or plainly unjust

Quick Take

An applicant for extension of time to bring a family provision claim must provide a satisfactory explanation for the entire period of delay, not merely parts of it. Where an applicant's belief in an alternative entitlement (here, shares in a company) ceases to be reasonable at a particular point in time, that belief cannot explain delay beyond that point. A change of mind about whether to pursue a claim, or unmet expectations of distributions from a testamentary trust, will not ordinarily constitute satisfactory explanations for delay. The execution of deeds waiving family provision rights does not bar a Part IV claim on public policy grounds, but the circumstances of execution (including the applicant's active negotiation and awareness of alternatives) are relevant to the assessment of the claim's strength.