Alympic v Alympic

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 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].
Costs were awarded against the applicant on an indemnity basis in that proceeding.
The Supreme Court reissued the grant on 30 May 2023. The applicant made this application for provision on 19 June 2023. The first respondent thereafter, as sole executor, in separate proceedings, sought an order for possession of the Stanley Flat property. The applicant declined to move out after the new grant of probate was issued. She eventually agreed to move out shortly before the order for possession was made.
The legal issue
It was agreed that the question of whether a new cause of action arises from the second grant or whether it is appropriate to grant the applicant an extension of time should be dealt with first. The parties filed affidavits and there was some oral evidence from the applicant in chief. She was also cross examined by counsel for the fourth respondent.
The claim which the applicant wishes to pursue is purely statutory. It is a creature of the Inheritance (Family Provision) Act 1972. The relevant provision is as follows:
8—Time within which application to be made
(1) Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
(2) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.
The applicant is an eligible applicant. She says that the new grant of probate creates a new entitlement to make a claim under the Inheritance (Family Provision)Act. It can immediately be seen that difficulties would arise if that is the correct position. Executors in deceased estates change from time to time for many reasons. Sometimes an executor, for illness or other reason, cannot continue. Sometimes an executor passes away. The orderly administration of deceased estates would be significantly disrupted if every time there was a change of executor a new right to make a claim for provision arose.
In Burns v Elder’s Trustee & Executor Co Ltd[3] Mitchell J was dealing with a time issue under predecessor legislation. She said:[4]
In an application under the Testator's Family Maintenance Act, one fact which it would be necessary for the plaintiff to prove to support his right to an order would be that probate of the will of the testator had been granted to the defendant or defendants. (Cf. Re Jenner, deceased; Nuffer v. Jenner) I therefore am of opinion that the cause of action in an application under the Testator's Family Maintenance Act does not arise until the grant of probate.
(footnote omitted)
[3] [1968] SASR 297.
[4] [1968] SASR 297 at 301.
The same reasoning applies under the present legislation. The applicant’s cause of action arose when the original grant of probate was made on 15 March 2017. Her claim should have been commenced within six months of that date.
There are statutory provisions which preserve actions where there is a revocation of a grant of probate. Relevant is s 42 of the Administration and Probate Act 1919:
42—Revocation of grants not to prejudice actions
(1) Where, before the revocation of any probate or administration, or the rescission of any special administration, proceedings have been commenced by or against the executor or administrator who obtained such probate or administration, the Court in which such proceedings are pending may order the revocation or rescission of such probate or administration, and the grant of any probate or administration which has been made consequent thereon, to be notified upon the record.
(2) Upon an order being made under subsection (1) hereof the proceedings shall be continued in the name of or against the new or original executor or administrator in like manner as if the proceedings had been originally commenced by or against such new or original executor, or administrator, but subject to such conditions and variations, if any, as the Court directs.
The provision makes clear that if the applicant had commenced a claim within time, the revocation of the original grant would not have affected the cause of action. The claim could have continued. The provision is sufficiently elastic to apply to the facts of this case, if necessary.
There appears to be no case law in South Australia that considers the issue of whether a second grant of probate gives rise to a fresh cause of action under the Inheritance (Family Provision) Act. Counsel for the first respondent undertook research on the matter and has uncovered some cases in the United Kingdom and Australia. It should be borne in mind that statutory provisions may vary and for that reason care is required when considering the applicability of such authorities.
The first case is In re Bidie (Deceased); Bidie v General Accident Fire & Life Assurance Corp Ltd.[5] This is an English Court of Appeal decision. Letters of administration had been granted on the footing of an intestacy. More than a year later a will was located. The original grant was revoked and probate of the will was granted. The widow of the deceased then made an application for provision under the relevant statute. The statute had a six month time period within which to commence a claim. The Court of Appeal allowed the claim.
[5] [1948] WN 454.
The case turns on its facts because, at that time in the United Kingdom, the relevant legislation did not permit the making of a claim for provision in an intestacy. It was only the grant of probate in respect of the will which gave rise to an entitlement to claim a provision. Accordingly, the claim was commenced within six months of the cause of action arising.
There is a further English case In re Freeman (Deceased).[6] By this time the law in the United Kingdom had changed and it was possible to seek provision in an intestacy. There was a grant of probate in respect of a will. About four years later, the grant of probate was revoked on the basis that the will was invalid. Letters of administration on an intestacy were then granted. Thereafter a claim for provision was made. The court held that the time to make the claim commenced from the date of the second grant. The reason being that time could only run from a valid grant of probate.
[6] [1984] 1 WLR 1419.
There is also the decision of the High Court in Holmes v Permanent Trustee Co of New South Wales Ltd.[7] In that case there had been a grant of probate issued in the Supreme Court of New South Wales. Most of the property of the deceased was located in the Northern Territory. At the time, the law of South Australia applied. The South Australian legislation required an application for provision to be made within six months of a grant of probate. For the purpose of administering the deceased estate, it was necessary to reseal the grant in the Northern Territory so as to deal with the property located there.
[7] (1932) 47 CLR 113.
An application was then made under the South Australian legislation for provision in the Supreme Court of the Northern Territory. On appeal Rich J held that it was the resealing of the grant in the Northern Territory that commenced time running. Until the reseal, there had been no representative of the estate in the Northern Territory and no proceedings could have been commenced in that jurisdiction.
What all three cases have in common is that, for varying reasons, it was not possible to commence valid proceedings on the first grant. That is not the case here. A valid claim could have been commenced after the first grant.
The statutory cause of action arose once and that was at the time of the first grant in 2017. It is a claim in the deceased estate of Mr Alympic. The fact that the personal representative of the decease estate changes does not alter the form of the action. It merely changes the identity of the correct respondent. There was no need for the cause of action to arise on a second occasion and it did not do so. It follows that this action was commenced out of time.
The applicant’s second argument is that if no second cause of action arises, the Court should grant an extension of time, pursuant to s 8(2), within which to commence the application. The application commenced in 2023. It should have been commenced in 2017.
Prior to the trial the applicant had said that one reason she did not commence a provision claim within the original six months was that her sister, the fourth respondent, had promised her that she would give the applicant her share of the estate. That position was maintained by the applicant until her cross examination. The fourth respondent denied ever making such a statement. It should be noted that her original affidavit[8] seeking an extension of time made no mention of an agreement with the fourth respondent. During her oral evidence, she agreed that the decision not to commence proceedings was not the result of anything said by the fourth respondent.
[8] FDN 2.
The reason no claim was commenced was because the applicant’s primary concern had been purchasing the property at Stanley Flat. It was only when it became clear that she would not be able to do so that she determined to bring a claim. In light of my finding that no cause of action arose on the second grant, the claim was commenced about six years out of time.
The Court has a discretion to extend time for the making of a claim. The purpose of time limits is to ensure the orderly and prompt resolution of disputes. The starting point is that no extension should be granted unless the interests of justice require it. The applicant carries the onus of establishing that it is appropriate to grant an extension.
A critical factor in the consideration of the discretion in this matter is the fact that the applicant received written advice from a legal practitioner about bringing a claim. It was obtained less than a month after the first grant of probate. The advice was tendered at the hearing. It made clear to the applicant that the time within which a claim could be commenced would expire on 14 September 2017. The advice pointed out that the matter was urgent and that notice of a claim should be given to the executors with a request that they not distribute the estate pending resolution of a claim.
This is not a case where the applicant was unaware of the facts and circumstances of the grant of probate or the relevant laws. She knew of the grant of probate and the terms of the will because she was an executor who applied for the grant. She knew a claim had to be commenced by 14 September 2017 but decided not to make a claim.
In Lang & Ors v Australian Executor Trustees Ltd & Ors[9] Anderson J declined to grant an extension of time because the applicant could not provide a satisfactory explanation for the delay. The same applies in this case. Nothing put on behalf of the applicant justifies the grant of an extension of time.
[9] [2013] SASC 171.
The claim will need to be dismissed. I will hear the parties on the form of the orders.

[2024] SASC 117

18 September 2024