Barns v Barns

The High Court considered appeals from the Full Court of the Supreme Court of South Australia concerning an application for family provision. The appellant, Kathryn Fay Barns, sought provision from the estate of her deceased father, Lyle Phillip Barns. Mr Barns' will left his entire estate to his widow, Alice Elizabeth Barns, and made no provision for the appellant, his adopted daughter, or his son, Malcolm Phillip Barns. However, on the same day as executing his will, Mr Barns, along with his wife and son, also executed a deed. This deed stipulated that Mr Barns and his wife would make wills in a specified form and agreed not to revoke these wills without the consent of the other parties, thereby creating a contractual fetter on their statutory power of revocation.

The central legal issues before the High Court were whether the deed and the mutual wills executed pursuant to it operated to prevent the appellant from making a claim for provision out of her father's estate under the *Inheritance (Family Provision) Act 1972* (SA), and whether the deed was invalid for reasons of public policy. The Court also considered the circumstances in which the High Court should depart from previous decisions of the Privy Council, particularly where those decisions concerned State law and were made on direct appeal from a State Supreme Court.

The High Court reasoned that the *Inheritance (Family Provision) Act* is remedial legislation and should be construed broadly to give the most complete remedy permitted by its wording. The Court held that the contractual obligations undertaken in the deed did not render the appellant incompetent to apply for provision under the Act. The Court found that the intention of the Act was to ensure adequate provision for dependants, and that a contractual arrangement, even if intended to prevent a claim under the Act, did not, of itself, invalidate the claim if the statutory criteria were otherwise met. The Court distinguished the present case from situations where a testator might divest themselves of assets prior to death, which would genuinely leave no estate from which provision could be made.

The High Court allowed the appeals, setting aside the orders of the Full Court of the Supreme Court of South Australia. The Court declared that the deed did not operate to make the appellant's application for provision incompetent. The matter was remitted to the Supreme Court for hearing, and costs were ordered to be paid out of the estate on an indemnity basis.