Blunden v Blunden

[2008] SASC 286

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Civil)

BLUNDEN v BLUNDEN & ANOR

[2008] SASC 286

Judgment of The Honourable Justice Bleby

27 October 2008

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - PRACTICE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - PRACTICE - PARTIES AND SERVICE

Application for extension of time in which to commence proceedings under the Inheritance (Family Provision) Act 1972 – plaintiff is adopted daughter of deceased but only lived with deceased for a short time as a young child – deceased bequeathed entire estate to his two sons in equal shares – no provision made for plaintiff in will – final distribution of estate made less than six months after grant of probate – plaintiff attempted to serve summons on defendants’ solicitors within time but was informed solicitors did not have instructions to accept service – summons then served personally on defendants, out of time – court has no discretion to extend time once final distribution made – application for extension of time has no merit – plaintiff’s moral claim weak – no explanation for delay in bringing application – application dismissed.

Application for permission to amend prayer for relief in Statement of Claim by including an order setting aside distribution of estate – whether distribution lawful when made before the expiry of the period within which claim under Inheritance (Family Provision) Act 1972 may be brought – executor or administrator should ordinarily refrain from distributing any part of estate during that period – no absolute prohibition on distribution – no statutory power for court to set aside distribution – application dismissed.

Inheritance (Family Provision) Act 1972 (SA) s7 s8 s9 s14; Supreme Court Civil Rules 2006  (SA) r66 r67; Trusts Act 1973 (Qld) s8; Family Provision Act 1982 (NSW) s15, referred to.
Guardian Trust and Executors Co of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115; Ernst v Mowbray [2004] NSWSC 1140, distinguished.
In the Estate of Gough, Deceased; Gough v Fletcher (1973) 5 SASR 559; In re Simson Deceased; Simson v National Provincial Bank Ltd [1950] Ch 38, discussed.
Burns v Elder's Trustees & Executory Co Ltd [1968] SASR 297; In Re Winwood (Deceased), Winwood v Winwood [1959] NZLR 246; In re Gimblett; Gimblett v Gimblett [1960] NZLR 664; Easterbrook v Young (1997) 136 CLR 308, considered.

BLUNDEN v BLUNDEN & ANOR
[2008] SASC 286

Civil

BLEBY J.

Introduction

1. Quentin Lloyd Blunden died on 22 April 2006. Probate of his Will was granted to the first defendant, Michael John Blunden, on 8 January 2008. The first defendant was the sole executor named in the deceased’s Will.

2. The deceased was survived by three children. The first defendant and the second defendant, David Lloyd Blunden, were both natural children of the deceased and his first wife. The plaintiff is the daughter of the deceased’s second wife. She was adopted by the deceased when she…