Ruling says testator’s alleged promises were at most expression of her wishes
Victoria’s Supreme Court dismissed a daughter’s application seeking further provision from her deceased mother’s estate upon determining that the testator’s representations were, at most, expressions of her wishes to keep farming properties within the family, rather than promises.
In Re Hinton; Carter v Ryan [2025] VSC 666, a 97-year-old woman passed away on 28 February 2012, survived by her son and the plaintiff daughter.
The woman left a will dated 3 July 2007, which appointed her son as her executor, gifted him all her farming properties and other real estate, and divided the residuary estate equally between her two children.
On 21 November 2012, the son obtained a grant of probate of his mother’s will.
On 30 March 2024, the son died, leaving a 1 October 2021 will, which designated the defendant as executor, gifted a Hintons Road property to his sister, and left his estate residue to a man unrelated to the family.
As the son’s named executor, the defendant assumed the role of executor of his mother’s estate, which he had not fully administered before his death.
On 15 October 2024, the daughter filed an out-of-time application under part IV of the Administration and Probate Act 1958 (Vic) for further provision from her mother’s estate, based on the promises her mother allegedly made.
Last 8 April, the defendant applied for orders dismissing the proceeding under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (CPA). She alleged that the application lacked real prospects of success.
The Supreme Court of Victoria dismissed the application for further provision from the testator’s estate under s 63 of the CPA upon determining that it lacked a real prospect of succeeding. The court ordered the daughter to pay the defendant’s standard costs of the proceeding.
First, the court ruled that the daughter’s claim for provision enjoyed no real prospect of success.
The court saw no unconscionable behaviour on the mother’s part that could alter the assessment of the provision’s adequacy in the manner sought by her daughter.
The court stated that the mother fulfilled her part of the promise she supposedly made by leaving a will gifting all real property to her son in the way she said she would. The court noted that the mother could not control her son’s actions.
The court found that any unconscionability would exist in the son’s failure to comply with his alleged promises to gift his sister the real property through his will. However, the court stressed that the son’s subsequent conduct could not impact his mother’s conduct.
Second, the court emphasised that the time to assess the adequacy of provision was the date of the mother’s death. As of that date, the court noted that the daughter had a home and financial resources, while the son was residing and working on the farm.
The court found that the mother thought that her son could not fully take care of himself. The court said it could not reassess the provision’s sufficiency as if the son had not survived his mother.
The court noted that the daughter submitted that she did not previously see the need to file a claim against her mother’s estate and thus jeopardise her relationship with her brother. The court explained that the daughter’s readiness to wait until her brother’s death showed the sufficiency of her mother’s provision for her at the time of her death.
The court found it unnecessary to consider the issue of lack of need, given its finding that the daughter lacked a real prospect of success.
