‘Rare’ precedent set for future estate matters

“Colin’s legal representative filed an Originating Motion within the statutory limitation period of six months from the Grant of Probate. Significantly, Colin’s legal team put the estate on notice of their client’s intention to make an application but failed to serve the Originating Motion which would have put the estate on notice that the Originating Motion had actually been filed within the statutory limitation period,” Macpherson Kelley said on the proceedings.

“Macpherson Kelley swiftly identified the opportunity to contest the precise wording of the notice, timing requirements of the APA and the very limited case law in this area.”

Appearing for Ian Haddow, Macpherson Kelley principal lawyer Joanne Hazeldene, associate Alanna Richmond and Teri Konstantinou of counsel said they needed to take a “bold approach to technical arguments”, which led to their success.

“We were watching the clock,” Ms Richmond said.

“Immediately upon the expiration of the limitation period, at 12.52pm we distributed the estate’s major asset (a property in regional Victoria) to Ian on the basis that we had only received notice of Colin’s intention to challenge the Will. Only an hour and 23 minutes later, we were notified that Colin’s Originating Motion had been filed.”

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The firm noted that in her decision, Judicial Registrar Englefield ruled in favour of Ian, stating that “there is no real prospect that at trial it will be found that action lies against the defendants for having distributed the Property, on either of the plaintiff’s arguments regarding the effect of the Plaintiff’s First Letter under s 99A(3) of the Act.”

“[Given] the extremely small size of the remaining estate, there is no utility in this case proceeding any further,” Judicial Registrar Englefield said.

The matter, the firm said, serves as a rare and vital precedent for future litigation in the area.