Alympic v Alympic - [2024] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ALYMPIC v ALYMPIC & ORS
[2024] SASC 117
Judgment of the Honourable Associate Justice Dart
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME
Application for provision - application made six years after first grant of probate - second grant of probate - applicant says the second grant creates a new entitlement to make a claim - in the alternative, an extension of time is sought - no new right to claim arises from the second grant of probate - not appropriate to grant an extension of time.
Inheritance (Family Provision) Act 1972 (SA) s 8; Administration and Probate Act 1919 (SA) s 42, referred to.
Alympic v Alympic unreported, 19 January 2023, Auxiliary Judge Norman (CIV-22-005092); Alympic v Alympic (No 2) [2023] SASC 172; Burns v Elder's Trustee & Executor Co Ltd [1968] SASR 297; In re Bidie, Decd; Bidie v General Accident Fire & Life Assurance Corp Ltd [1948] WN 454; In re Freeman (deceased) [1984] 1 WLR 1419; Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113; Lang & Ors v Australian Executor Trustees Ltd & Ors [2013] SASC 171, considered.

ALYMPIC v ALYMPIC & ORS
[2024] SASC 117

These reasons deal with the question of whether this application for provision, made pursuant to the Inheritance (Family Provision) Act 1972, was commenced within time or whether an extension of time is required. If the latter, the question is whether it would be appropriate to grant the applicant an extension of time. The application was commenced out of time. It is not appropriate in the circumstances to grant an extension of time within which to commence the proceedings.
Background
This matter has an unusually involved background. Natalie Alympic (the applicant) and Timothy Alympic (the first respondent) are siblings and are two of the children of Mr Alexander Alympic who died on 1 December 2016. He left a will made on 24 August 2012. It appointed the siblings as joint executors of the deceased estate. The four children of the deceased share equally in the residue of the estate. A grant of probate followed on 15 March 2017. The two siblings commenced to administer the deceased estate.
The principal asset in the estate was real property at Stanley Flat in the Clare Valley. The will contained a provision which provided the applicant with a right to reside at the property for a period of one year from the death of the testator. That period expired on 1 December 2017.
The applicant declined to vacate the property. The first respondent advised the applicant that the property needed to be sold. That was resisted by the applicant. She indicated she did not wish to move out and that she wished to purchase the property herself.
Thereafter there were several years of discussions about the applicant buying the property. The applicant made an offer to purchase the property in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alympic v Alympic

Details

AGLC: Alympic v Alympic [2024] SASC 117
Case: [2024] SASC 117
Decision Date: 18 September 2024

CaseChat Overview and Summary

This matter concerns the question of whether an application under the Inheritance (Family Provision) Act 1972 was made out of time and, if so, whether an extension of time should be granted. The applicant is Natalie Alympic and the respondent is Timothy Alympic, her brother, and one of the other children of their deceased father, Mr Alexander Alympic. The central issue in this case was whether the applicant’s application for family provision was made within the statutory time limit and, if not, whether an extension of time should be granted. The court was required to determine whether the applicant’s application was out of time and, if so, whether it was appropriate to grant an extension of time.

The court found that the applicant’s application was indeed made out of time. It also found that it was not appropriate to grant an extension of time. The court reasoned that the applicant had been afforded an opportunity to purchase the property in question but had failed to do so. Moreover, the applicant had obstructed the administration of the estate, leading to the revocation of the grant of probate in her favour and the appointment of the respondent as sole executor. The court concluded that the applicant’s conduct had frustrated the due administration of the estate and that the court’s intervention was necessary to resolve the situation. The court further found that the applicant’s application was made in bad faith and that it was not in the interests of justice to grant an extension of time.

The court dismissed the application and made no orders in relation to the application for an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

These reasons deal with the question of whether this application for provision, made pursuant to the Inheritance (Family Provision) Act 1972, was commenced within time or whether an extension of time is required. If the latter, the question is whether it would be appropriate to grant the applicant an extension of time. The application was commenced out of time. It is not appropriate in the circumstances to grant an extension of time within which to commence the proceedings. Background This matter has an unusually involved background. Natalie Alympic (the applicant) and Timothy Alympic (the first respondent) are siblings and are two of the children of Mr Alexander Alympic who died on 1 December 2016. He left a will made on 24 August 2012. It appointed the siblings as joint executors of the deceased estate. The four children of the deceased share equally in the residue of the estate. A grant of probate followed on 15 March 2017. The two siblings commenced to administer the deceased estate. The principal asset in the estate was real property at Stanley Flat in the Clare Valley. The will contained a provision which provided the applicant with a right to reside at the property for a period of one year from the death of the testator. That period expired on 1 December 2017. The applicant declined to vacate the property. The first respondent advised the applicant that the property needed to be sold. That was resisted by the applicant. She indicated she did not wish to move out and that she wished to purchase the property herself. Thereafter there were several years of discussions about the applicant buying the property. The applicant made an offer to purchase the property in June 2021 which was subject to finance being approved. There is no evidence that finance was approved. The first respondent’s position is that the applicant would not carry out her duties as executor and would not cooperate in the administration of the estate. He made application for the grant of probate to be revoked with a new grant to him as sole executor. The application was heard by Auxiliary Judge Norman in late 2022. His Honour delivered judgment on 19 January 2023.[1] His Honour accepted that the applicant had frustrated the administration of the estate. He revoked the grant of probate, passed over the applicant as an executor and made a new grant of probate in favour of the first respondent as the sole executor. [1] Alympic v Alympic, Auxiliary Judge Norman, 19 January 2023 unreported (CIV-22-005092). Auxiliary Judge Norman delivered a separate judgment in relation to the costs of the proceedings. He noted:[2]In my reasons, I found that a history had been shown of the respondent being uncooperative and obstructive in respect to the sale of the property. Notwithstanding the provisions in the deceased’s will allowing her to reside at the property for 12 months after his death, she had resided and continued to reside there after that period had expired without paying rent, she had advised that she did not wish to vacate, and she had later written to the beneficiaries informing them that she was not moving out and that they would need to convince a judge at the expense of the estate why she needed to be removed. The situation remained unresolved for a considerable time. Notwithstanding that the respondent offered to purchase the property, subject to finance, she had been unable to provide proof thereof and that matter had not been taken further, and she had also refused to allow real estate agents access to the property. I found that the applicant had had no choice but to issue the proceedings, that he had established a departure by the respondent from her duties as an executor, that a course of conduct by her had frustrated, delayed and prevented the due administration of the estate over several years, and that the position would not be resolved without the intervention of the Court. In these circumstances, the due and proper administration of the estate required the revocation of the grant of probate, a passing over of the respondent, and the appointment of the applicant as executor, and orders were made accordingly. [2] Alympic v Alympic (No 2) [2023] SASC 172 at [6].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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