Brooks v Young - [2018] SASCFC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BROOKS & ANOR v YOUNG & ORS
[2018] SASCFC 81
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Bampton and The Honourable Justice Doyle)
16 August 2018
SUCCESSION - FAMILY PROVISION - APPEALS
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME - APPLICATION TO BE BEFORE FINAL DISTRIBUTION
EQUITY - GENERAL PRINCIPLES - FIDUCIARY OBLIGATIONS - GENERAL PRINCIPLES
Appeal from a decision dismissing a claim for provision under the Inheritance (Family Provision) Act 1972 (SA), and various related claims, and ordering summary judgment.
The respondents are the executors of the estate of the deceased. The appellants are beneficiaries of the deceased’s estate. The deceased’s estate was valued for probate purposes at $434,542.02. Probate was granted on 23 February 2015. In April 2015, the executors distributed part of the estate (approximately $81,000 in cash) to the first respondent as beneficiary, distributed another part ($30,000 in cash) to a third-party beneficiary and distributed a house property at Berri to the first respondent as a beneficiary. The undistributed asset of the estate is the sum of $60,000 which, under the will, is to be distributed to the appellants.
The appellants issued these proceedings seeking orders for additional provision in their favour. The proceedings were not served on the respondents until 31 August 2015, eight days after the expiration of the six month limitation period prescribed by s 8(1) of the Inheritance (Family Provision) Act 1972 (SA).
In July 2016, the appellants sought an extension of time within which to bring their claim and an order for provision. The appellants also alleged that the executors owed and breached a fiduciary duty to the appellants as potential claimants under the Inheritance (Family Provision) Act 1972 (SA).
Held per Doyle J (Kelly and Bampton JJ agreeing), dismissing the appeal:
1. In the case of a partial distribution of an estate, the Court retains a discretion to grant an extension of time under s 8(2) of the Inheritance (Family Provision) Act 1972 (SA). However, if the extension of time is granted, the claim will be confined to the part of the estate which has not been distributed. The previous distributions cannot be disturbed in any way, including by any order for provision in respect of the distributed asset. The appellant’s claims for provision will thus be confined to the $60,000 to which they are already entitled and hence will fail.
2.       The respondent executors are not liable to account for the premature distributions made by them. Nor can there be any liability on the part of the beneficiaries who received the distributions in the circumstances of this case.
3.       Executors do not owe fiduciary duties to claimants or potential claimants under the Inheritance Act (Family Provision) Act 1972 (SA). The executor’s fiduciary duties and liability are dependent upon the claimant establishing their entitlement to provision.
4.       The appellants’ claims have no reasonable basis.
Inheritance (Family Provision) Act 1972 (SA) ss 6, 7, 8, 9, 10, 14; Supreme Court Civil Rules 2006 (SA) r 232; Trusts Act 1973 (Qld) s 8, referred to.
Blunden v Blunden [2008] SASC 286, applied.
Irvine v Public Trustee [1989] 1 NZLR 67; MacKenzie v MacKenzie (1998) 16 FRNZ 487; Re Stewart [2004] 1 NZLR 354; Sadler v Public Trust [2009] NZCA 364; Joan v Mary & Christine [2012] NZHC 1830; AB v RT and ST [2015] NZHC 3174, not followed.
Spencer v The Commonwealth (2010) 241 CLR 118; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Trkulja v Google LLC (2018) 356 ALR 178; Easterbrook v Young (1977) 136 CLR 308; Broadhead v Prescott [2015] SASC 34; Re Marsden (1884) 26 Ch D 783; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12; Brine v Carter [2015] SASC 205; Johnson v Trotter [2006] NSWSC 67; Breen v Williams (1996) 186 CLR 71; Pilmer v Duke Group Ltd (2001) 207 CLR 165; Commissioner of Stamps (WA) v West Australian Trustee, Executor and Agency Co Ltd (1926) 38 CLR 63; Taylor v Taylor (1870) LR 10 Eq 477; Guardian Trust and Executors of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115; Re Simson [1950] Ch 38; Re Winwood [1959] NZLR 246; Re Gimblett [1960] NZLR 664; In the Estate of Gough (1973) 5 SASR 559; Brown v Holt [1961] VR 435; Younan v Younan (No 2) [2015] VSC 549; Robbins v Hume [2015] VSC 128; D’Albora v D’Albora [1999] NSWSC 468; Ernst v Mowbray [2004] NSWSC 1140; Public Trustee v Bebich [2014] WASC 340; Re McPherson [1987] 2 Qd R 394; Re Hill (Supreme Court of Queensland, Carter J, 17 June 1988, unreported); Re Faulkner [1999] 2 Qd R 49; Curran v McGrath [2010] QCA 308; Vickers v Pickering [2016] QDC 58; Re Magson [1983] NZLR 592; Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41; Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; In the Estate of Pettitt (Supreme Court of South Australia, Lander J, 12 June 1998, unreported), considered.

BROOKS & ANOR v YOUNG & ORS
[2018] SASCFC 81
Full Court: Kelly, Bampton and Doyle JJ

KELLY J: I agree that this appeal should be dismissed for the reasons given by Doyle J.
BAMPTON J: I would dismiss the appeal for the reasons given by Doyle J.
Concerns regarding the practice of premature distributions
I would add the following observations in joining the chorus of judges who in other matters have decried the practice of premature distributions.
An executor must lawfully administer a deceased estate in accordance with the terms of the will. It is in this context that an executor has a fiduciary duty to the beneficiaries named in the will to carry out the testator’s wishes as expressed in the will.
A claimant who obtains an order for provision under the Inheritance (Family Provision) Act 1972 (SA) (“the IFP Act”) is, by virtue of the order, placed in the same position as a beneficiary under the will. The executor has the same duty to distribute the assets of the will in accordance with the wishes expressed in the will as amended by the order for provision which, pursuant to s 10 of the IFP Act, operates as a codicil to the will. Put another way, once an order is made for the benefit of a claimant not named as beneficiary or further provision is made to a named beneficiary the executor has an added legal obligation to comply with the Court’s order. Prior to the making of such an order, the executor’s fiduciary duty to administer the will lawfully is limited to the named beneficiaries’ interest under the will.
Leslie Melville Brooks (“Leslie”) who died on 27 September 2014 is survived by his children: Raymond Brooks, Trevor Brooks, Rosemary Young and Margaret Boyle. His estate, which included a property at 5 Huckstepp Court, Berri (“the Berri property”), for probate purposes was valued at $434,542.02.
Leslie made a penultimate will with Hume Taylor & Co Lawyers on 15 December 2011, leaving the residue of his estate to his surviving children in equal shares.
By his last will made with Kudra & Co on 29 February 2012 and admitted to probate (“the Will”), Leslie gave $30,000 each to Raymond, Trevor, and Margaret. The residue of Leslie’s estate was given to Rosemary. Rosemary and her son Robert were appointed joint executors of the Will.
There is no dispute that on 5 October 2014, two days after Leslie’s funeral, Rosemary handed her solicitor’s business card to her siblings. It is her case that she told the defendants that Mr Kudra of Kudra & Co had prepared and held the Will, and would attend to the administration of the estate. She maintains that none of her siblings asked or commented about the terms of the Will other than Raymond who complained that Leslie had been secretive about the Will, the selling of his home and moving to Berri.
Probate was granted on 23 February 2015. However, it was not until Raymond received a letter dated 8 April 2015 from the executors’ solicitor, Mr Kudra, that Raymond and Trevor were informed of the grant. The letter enclosed a copy of the grant and a copy of the Will. The letter stated:
We advise that we are now in a position to distribute the Estate pursuant to the terms of the attached Will. Please note that pursuant to the Will you are to receive the sum of $30,000.
It is significant to note that, despite this statement of readiness to distribute, the 8 April 2015 letter does not mention that the Transmission Application by Personal Representatives in respect of the Berri property was:
·signed and dated 22 March 2015 by Rosemary and Robert;
·endorsed with a notation signed and dated 22 March 2015 by Mr Kudra to the effect that Mr Kudra had verified the identities of Rosemary and Robert; and
·lodged at the Land Titles Office on 2 April 2015, together with a Memorandum of Transfer signed by Rosemary on 22 March 2015.
Raymond asserts that he did not receive the letter until 13 April 2015. Notably, the sum of $81,677.89 was distributed to Rosemary on 14 April 2015, the sum of $30,000 was distributed to Margaret on 15 April 2015, and the transfer to Rosemary of the Berri property was completed on 18 April 2015.
Raymond instructed solicitors to write to the executors’ solicitors on 22 April 2015 stating that he had discovered that the Berri property had been transferred to Rosemary. The letter requested withdrawal of the transfer, a copy of the statement of assets and liabilities and an undertaking to make no further distribution until “each beneficiary shall have had the opportunity to review their respective positions”. Mr Kudra replied by letter dated 24 April 2015 undertaking to make no further distribution until such a time as he obtained instructions from Rosemary and Robert. Mr Kudra replied by further letter dated 8 May 2015 enclosing a copy of the statement of assets and liabilities, stating that he had instructions not to make further distribution without notice and that the transfer of the Berri property would not be withdrawn.
The executors took approximately seven weeks to inform Raymond and Trevor of the grant of probate and prematurely distributed the estate’s assets. It would be open to infer on the material before the Court that they did so as a pre‑emptive strike to frustrate any claim pursuant to the IFP Act.
As executors, Rosemary and Robert owe a duty to the beneficiaries of the Will to keep them informed regarding the administration of the estate, this includes promptly notifying them of the grant of probate and their entitlement under the Will. The handing out of the Kudra & Co business card did not, in my view, discharge the duty to inform the beneficiaries. The grant of probate activated the executors’ authority to deal with Leslie’s estate in accordance with the Will and accordingly the requirement to notify the beneficiaries.
As Doyle J details in his reasons, any application pursuant to the IFP Act had to be made within six months of the grant of probate, that is, by 23 August 2015. Raymond and Trevor were on notice from receipt of the letter dated 8 April 2015. Whilst the application for provision was issued on 17 August 2015, s 8(6) of the IFP Act prescribes that the application is deemed to have been made on the day the summons by which it is instituted was served on the executors. The summons was not served on the executors until 31 August 2015, eight days after the limitation period expired.
Any application to extend time for making an application under the IFP Act must be made before the estate has been lawfully finally distributed.[1] The Court has no power to disturb any distribution made before an application for extension of time.[2] In this matter, subject to the payment of funeral expenses, the undistributed asset in the estate is the sum of $60,000 which, under the terms of the Will, is to be distributed to Raymond and Trevor in equal shares. As Doyle J concludes, there is no reasonable basis for any of Raymond and Trevor’s claims.
[1] Inheritance (Family Provision) Act 1972 (SA) s 8(4).
[2] Blunden v Blunden (2008) 258 LSJS 206 (Bleby J) at 209.
Judicial warnings falling on the deaf ears of executors
The premature distributions in this matter and other matters that come before this Court in its IFP jurisdiction are of great concern. Time and time again judges have warned executors to be circumspect by refraining from distributing any part of an estate during the six-month period within which an application for provision may be brought.[3] Those warnings appear to have no impact, falling on the deaf ears of executors and, it appears to me, their legal advisors. No doubt this is because there is nothing prohibiting executors making distribution once probate is granted before the expiry of the six-month limitation period and even with notice of a pending claim for provision.[4]
[3] Re Simson (deceased) [1950] Ch 38 at 42-43 (Vaisey J); In the Estate of Gough (deceased) (1973) 5 SASR 559 (Zelling J) at 565-566; Blunden v Blunden (2008) 258 LSJS 206 (Bleby J) at 209-210.
[4] GE Dal Pont & KF Mackie, Law on Succession (Lexis Nexis Butterworths, 2^nd ed, 2017) at 595-596.
The judicial chorus
I, like Bell J in Younan v Younan (No 2),[5] join the — so far ineffectual — chorus of “… judges decrying the practice of making early distributions, especially in the face of a pending or impending application for family provision” and “add a wish that the courts be given power to do more about it”.
[5] [2015] VSC 549 at [24].
An embargo on distribution?
In their text Law of Succession,[6] Dal Pont and Mackie note that in certain Canadian jurisdictions statute prescribes that an executor must not, during the relevant statutory limitation period, distribute any portion of the estate to beneficiaries under the will except with the consent of all persons who would be entitled to apply or if permitted by the Court.[7] The authors point out that this Canadian provision does not, however, prevent an executor from making reasonable payments out of the estate for the maintenance of any family members who are beneficiaries. The provision also prescribes that executors who distribute any portion of an estate in contravention of law against distribution before the expiry of the limitation period are personally liable to pay an amount equal to any maintenance and support that is payable under a family provision order and that ought to be paid out of the portion of the estate distributed.
[6] GE Dal Pont & KF Mackie, Law on Succession (Lexis Nexis Butterworths, 2^nd ed, 2017) at 595-596, footnote 208.
[7] Wills and Succession Act 2010 (Alta) s 106.
I am of the view that an embargo on distribution except in cases of need during the six-month limitation period prescribed by the IFP Act has merit and warrants further consideration.
DOYLE J: This is an appeal from a decision of a Judge of this Court dismissing the plaintiffs’ claim for provision under the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act) and various related claims, and ordering summary judgment in favour of the defendants.
Leslie Melville Brooks (the deceased) died on 27 September 2014. The deceased was survived by four adult children, namely Raymond Brooks, Trevor Brooks, Rosemary Young and Margaret Boyle. For convenience, and without intending any disrespect, I shall refer to each by their first name.
Probate of the deceased’s will was granted to Rosemary and her son (Robert Young) on 23 February 2015. Pursuant to the terms of the deceased’s will, he appointed Rosemary and Robert (the defendants) as his executors and trustees. He gave a legacy of $30,000 to each of Raymond, Trevor and Margaret, and the residuary estate to Rosemary.
The net estate disclosed in the statement of assets and liabilities was $434,542.02. The major asset of the deceased’s estate was his property located at Berri and valued at $275,000. The remaining assets comprised money held in various bank accounts.
On various dates during April 2015, the defendants (as executors) made distributions from the estate, including distributions to Margaret of $30,000 on account of the legacy in her favour, and to Rosemary of $81,677.89 plus the Berri property. After allowing for expenses incurred, and the distributions made during April 2015, the only asset left in the estate from late April 2015 was the sum of $60,000 intended for distribution equally between Raymond and Trevor (the plaintiffs) on account of the legacies in their favour.
On 17 August 2015, the plaintiffs issued proceedings in this Court seeking orders for provision in their favour under s 7 of the IFP Act. However, the proceedings were not served on the executors until 31 August 2015, which was eight days after the expiration of the six month limitation period prescribed by s 8(1) of the IFP Act.
On 11 July 2016, the plaintiffs filed an interlocutory application seeking an extension of the time within which to bring their claim under the IFP Act. That application was referred for consideration at trial, and was not a matter required to be determined by the primary judge or on this appeal.
On 28 November 2016, the plaintiffs filed a statement of claim which not only claimed an entitlement to provision under the IFP Act, but also made various allegations against the defendants. While the pleading is somewhat discursive and imprecise, it appears to make the following allegations:
1. That the plaintiffs are entitled to an order for provision under s 7 of the IFP Act (and an extension of the time within which to bring their claim for provision under s 8 of that Act).
2. That Rosemary (in her capacity as beneficiary) holds both the Berri property and the $81,677.89 transferred to her on trust for the deceased’s estate, and is thus liable to either transfer these back to the estate in order to meet any order for provision, or is otherwise directly liable to meet any such order for provision.
3. That Rosemary and Robert (in their capacities as executors) owed and breached a fiduciary duty to the plaintiffs as potential claimants under the IFP Act. The duty was described in the pleading as an obligation not to distribute the estate, without notice to the plaintiffs, within the six month period for claims under the IFP Act. In submissions it was also, or alternatively, described as a duty of even-handedness, or a duty not to prefer their own interests, owed to both the beneficiaries named in the will and potential claimants under the IFP Act (or at least those of whom executors were aware, or ought to have been aware). In submissions it was also expressed as a duty that extended beyond the six month limitation period, being a more general duty not to distribute in circumstances of potential claims for provision.
4. That Rosemary and Robert (in their capacities as executors) are liable to account to the estate for the transfers of the Berri property and $81,677.89 to Rosemary, at least to the extent necessary to meet any order for provision in the plaintiffs’ favour.
On 12 December 2016, Rosemary filed an application seeking summary judgment, or an order for dismissal of the proceedings, on the ground that the pleadings disclose no reasonable cause of action or no reasonable basis for the claims alleged.
The primary judge concluded that there was no reasonable basis for any of the plaintiffs’ claims. In particular, his Honour held:
1. Even if an extension of time were granted, the Court would be precluded by s 8(5) of the IFP Act from disturbing the distributions made and hence from making any order for provision out of the assets that had already been distributed by the time the application for an extension of time was made, being all of the assets other than $60,000 which the defendant had already earmarked for distribution to the plaintiffs in accordance with the will.
2. While the defendants, as executors, owed fiduciary duties to the beneficiaries named in the will, Australian law did not recognise any duty to potential claimants under the IFP Act not to distribute the assets of the estate within the six month limitation period under s 8 of the Act.
3. There was nothing in the IFP Act to suggest any duty owed to potential claimants. To the contrary, the existence of the contended duty would tend to contradict the executor’s duty to administer the deceased’s estate in accordance with the terms of the will. Any fiduciary duty owed by the defendants as executors arose from the terms of the will, which authorised the distributions in accordance with its terms.
4. The defendants, in their capacity as executors, were protected from any personal liability by reason of s 14(1) of the IFP Act.
5. In any event, any breach of a fiduciary or other equitable duty did not cause any loss. The cause of the loss was the failure of the plaintiffs to bring their claim within time, with the result that s 8(5) of the IFP Act precluded any order being made in their favour.

His Honour concluded that the defendants were thus entitled to summary judgment, and dismissed the plaintiffs’ action. This is an appeal from that decision. The grounds of appeal are essentially that his Honour erred in concluding that there was no reasonable basis for any of the plaintiffs’ claims.
Summary judgment principles
The defendants’ application sought summary judgment under r 232 of the Supreme Court Civil Rules 2006 (SA). To succeed, the defendants were required to satisfy the Court that the plaintiffs’ claims had no reasonable basis.
As the authorities make plain, the power to dismiss an action summarily is not lightly to be exercised.[8] While caution in exercising the power is thus appropriate, the authorities also make it plain that a test focusing upon the claims having a reasonable basis, or reasonable prospect of success, calls for a more liberal approach to the exercise of the power to summarily dismiss than was propounded in earlier decisions such as Dey v Victorian Railways Commissioners[9] and General Steel Industries Inc v Commissioner for Railways (NSW).[10] As the High Court recently acknowledged in Trkulja v Google[11] in the context of the similar Victorian test for summary judgment (“no real prospect of success”), it allows for the possibility of cases which may not be “hopeless” or “bound to fail”, but nevertheless do not have a real prospect of succeeding.
[8] Spencer v The Commonwealth (2010) 241 CLR 118 at [24], [60].
[9] Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90-91.
[10] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130.
[11] Trkulja v Google LLC (2018) 356 ALR 178 at [23] citing Spencer v The Commonwealth (2010) 241 CLR 118 at [56], [60].
The nature of the test is such that it will not ordinarily be appropriate to determine a matter summarily where the outcome is likely to turn upon contested issues of fact. Similarly, it will not ordinarily be appropriate to resolve complex or unsettled issues of law on a summary judgment application, at least not where their determination may be bound up in contested issues of fact. Trkulja v Google LLC[12] is an illustration of the caution that is necessary in such cases.
[12] Trkulja v Google LLC (2018) 356 ALR 178 at [37]-[39].
However, I do not understand this need for caution to prevent a matter being determined on a summary basis if, after a careful or detailed analysis of the relevant legal issues, a clear outcome emerges. To the contrary, if such analysis leads the Court to be satisfied the claim does not have a reasonable prospect of success, then the evident intention of r 232 is to permit the Court to enter summary judgment and save the parties and the Court the time and expense of the proposed proceedings and trial.
Here, if the matter were to proceed, there will likely be some contested issues of fact. Thus, in order for the matter to be determined summarily, the defendants accept that the legal issues that they contend are determinative must be considered on the assumption that the facts alleged by the plaintiffs are proved. That is the basis upon which the primary judge approached the matter, and it is the basis upon which this Court must approach the matter.
Factual background
That said, there does not appear to be any significant dispute about the essential chronology of events. The key matters have been set out in the introductory section of these reasons. The following is a summary of the factual context in which these events occurred. It draws heavily upon the trial judge’s summary, which was not challenged on appeal.
The deceased’s last will, the terms of which are summarised earlier in these reasons, was dated 29 February 2012. It replaced an earlier will dated 15 December 2011 in which the deceased had left the residuary estate equally to each of his children.
The deceased died on 27 September 2014. Raymond claims that at the funeral a few days later Rosemary told him that she did not know the location or content of the will.
On 5 October 2014, the deceased’s children attended Raymond’s house. Rosemary claims that on that occasion she informed her siblings that a solicitor, Mr Kudra, had prepared and was holding a will for the deceased and that he would attend to the administration of the deceased’s estate. She claims that she gave each of her siblings Mr Kudra’s business card and said that they could contact him if they wanted any information.[13]
[13] I understand that Rosemary contests Raymond’s version of their interaction at the funeral, and that Raymond contests Rosemary’s version of their interaction at Raymond’s house. For the reasons mentioned, it is appropriate to proceed on the basis of Raymond’s version of events, this being the most favourable to the plaintiffs.
Through Mr Kudra, Rosemary and Robert applied for a grant of probate which was issued to them on 23 February 2015.
On 8 April 2015, Mr Kudra wrote to Raymond at his PO Box address providing him with a copy of the grant of probate with the deceased’s last will. The letter advised that the executors were in a position to distribute the estate and for that purpose he requested Raymond’s bank details to deposit his legacy of $30,000. From that date, Raymond was on notice of the terms of the will, the date probate was granted and that the executors considered they were in a position to distribute the estate.[14]
[14] It was not suggested that Trevor was in any different position.
After this letter was sent to Raymond, and pursuant to the terms of the deceased’s will, the executors made the following payment and distributions on dates between 10 and 18 April 2015:
·    $6,595 was paid to the executors’ solicitors for their fees.
·    $81,677.89 was distributed to Rosemary.
·    $30,000 was distributed to Margaret.
·    The Berri property was distributed by way of registered transfer to Rosemary.
The effect of the above was that, after allowing for funeral expenses of $11,627.16, the only asset held by the deceased’s estate was the sum of $60,000, which the defendants accepted was to be distributed equally between the plaintiffs pursuant to the deceased’s will.
On 20 April 2015, Raymond instructed a solicitor, Mr Westley, and on 22 April 2015 Mr Westley wrote to Mr Kudra by email attaching a letter advising him that he had been instructed to act on behalf of Raymond. It is apparent from the terms of the letter that Raymond had become aware of the transfer of the Berri property to Rosemary. The letter sought an urgent response and undertakings from the executors to withdraw the transfer of the Berri property to Rosemary, to provide each of the beneficiaries with a copy of the statement of assets and liabilities in the estate, and to make no further distribution of funds in the estate until each beneficiary had had an opportunity to review their respective positions. The letter suggested that the beneficiaries had been denied any opportunity to question or challenge the deceased’s division of his estate. It also noted that the position of a child of the deceased who had predeceased him (but had a surviving daughter) had been entirely overlooked. The letter proceeded to request information in relation to the preparation and execution of the deceased’s last will, but did not expressly foreshadow any claim for provision.
On 24 April 2015, Mr Kudra responded to Mr Westley’s letter and advised that he was in the process of obtaining instructions from the executors and gave an undertaking not to make any further distributions from the deceased’s estate until such time as instructions had been obtained.
On 8 May 2015, Mr Kudra sent a further letter to Mr Westley providing him with a copy of the grant of probate and the statement of assets and liabilities. The letter stated that he was instructed not to withdraw the transfer of the Berri property. It also stated that Mr Kudra’s office had prepared the will, and that Mr Kudra had satisfied himself that the deceased had capacity to provide instructions and to execute the will.
By letter dated 27 May 2015, Mr Westley wrote to Mr Kudra requesting a copy of the deceased’s previous wills and a copy of his notes in relation to preparation of the last will. This request was repeated in a further letter dated 22 June 2015.
Mr Westley wrote again to Mr Kudra on 2 July 2015, this time enquiring whether he had instructions on behalf of the executors to accept service of a claim being commenced pursuant to the Act. Mr Kudra replied by letter dated 16 July 2015 confirming that he had those instructions.
On 31 July 2015, Mr Westley’s firm sent, by express post to the Supreme Court registry, Raymond’s originating court documents to commence proceedings pursuant to the IFP Act. On or about 12 August 2015, the originating proceedings were returned to Mr Westley’s office unfiled and subject to a requisition. On 14 August 2015, Mr Westley’s firm sent the amended originating proceedings for filing, again by express post to the Supreme Court registry. On 17 August 2015, the registry telephoned Mr Westley’s office to confirm that the originating proceedings had been successfully filed. At this time there were six days until the limitation period was to expire.
On 18 August 2015, Mr Westley wrote to Mr Kudra stating that he had filed proceedings under the IFP Act, noting that Mr Kudra had instructions to accept service on behalf of the executors, and indicating that he would shortly serve the documents on him. On the same day he also wrote to the solicitors acting on behalf of Rosemary in her capacity as a beneficiary of the deceased’s estate, asking whether they had instructions to accept service of the IFP Act proceedings that had been filed.
On 25 August 2015, one day after the proscribed limitation period had expired, the executors’ solicitors again confirmed they had instructions to accept service.
On 28 August 2015, the sealed originating proceedings were sent by express post to the executors’ solicitors. The letter enclosing the originating proceedings were received by the executors’ solicitors on 31 August 2015, eight days after the prescribed limitation period of six months from the grant of probate.
There is no concession on the part of the defendants that the plaintiffs would be, or would have been, entitled to an order for provision in their favour under s 7 of the IFP Act if their claim had been brought within time. However, for the purposes of their summary judgment application, the defendants do not challenge the underlying merits of the plaintiffs’ claims for provision. Rather, they rely upon what they contend are the more fundamental legal barriers to that claim, namely that the claim was brought outside of the six month limitation period and at a time when all but the final $60,000 in the estate had distributed; and the absence of any legal basis for the fiduciary or other forms of liability contended for by the plaintiffs.
Relevant provisions of the IFP Act
Claims for provision are governed by the IFP Act. Section 6 lists the various categories of people who are entitled to bring a claim. They are essentially the deceased’s spouse, former spouse, domestic partner, children (including children of their spouse or domestic partner maintained by the deceased), grandchildren, parents and siblings.
Under s 7(1), if satisfied that a claimant has been left without adequate provision for their proper maintenance, education or advancement, the Court may in its discretion order that such provision as it thinks fit be made “out of the estate” of the deceased person.
Section 9(1) provides that every order for provision made out of the estate of a deceased person must, inter alia, specify the amount and nature of the provision, and the part or parts of the estate out of which it is to be raised or paid. Section 9(7) provides that upon any order being made, the portion of the estate affected “shall be held subject to the provisions of the order”.
Under s 10, every order for provision operates and takes effect as if it had been made by a codicil to the deceased’s will executed immediately before their death.[15]
[15] Or, in the case of a deceased person who died intestate, as a will executed immediately before their death.
The time within which claims for provision must be brought, the circumstances in which extensions of that time may be obtained, and the consequences for provision claims of distributions made prior to the claim are governed by s 8. That section relevantly provides 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.
(3)     An extension of time granted pursuant to this section may be granted—
(a)     upon such conditions as the Court thinks fit; and
(b)     whether or not the time for making an application pursuant to subsection (1)         of this section has expired.
(4)An application for extension of time pursuant to this section shall be made before the final distribution of the estate.
(5)Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.
(6)An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.
(7)     …
In summary, a claim for provision must be made within six months of the grant of probate (s 8(1)). The Court has a discretion to extend the time for bringing a claim (s 8(2)). However, the Court can only exercise this discretion if the application for an extension of time is brought before the final distribution of the estate (s 8(4)). Further, even if there is a successful application for an extension of time, any distribution of part of the estate made before that application “shall not be disturbed” by any order for provision.
Also relevant in the present context is s 14. It contains provisions relevant to the liability of the executor[16] in the event distributions are made prior to determination of a claim for provision. It provides:
[16] The IFP Act uses the label ‘administrator’, but this is defined in terms that include an executor.
14—Liability of administrators after distribution of estate
(1)An administrator of the estate of a deceased person who has lawfully distributed the estate or any part thereof shall not be liable to account for that estate or that part thereof, as the case may be, to any person claiming the benefit of this Act, unless the administrator had notice of the claim at the time of the distribution.
(2)     For the purposes of this section, notice of the claim—
(a)     shall be in writing signed by the claimant or his solicitor; and
(b)shall lapse and be incapable of being renewed unless, before the expiration     of three months after the administrator receives notice of the claim a copy of         an application by the claimant for the benefit of this Act has been served on        him.
(3)Subsection (1) of this section shall not prevent the Court from ordering that any provision under this Act be made out of the estate, or any part thereof, after it has been distributed.
Operation of the IFP Act scheme
The general scheme established by the IFP Act is relatively clear in its operation. Importantly, and putting to one side for the moment the existence of the fiduciary duties that the plaintiffs in this case contend exist outside of the statutory scheme, the timing of any claim for provision, relative to both the six month time limit and the making of distributions by the executor, has significant consequences for the outcome of that claim and any potential liability on the part of the executor or beneficiaries.
If the claim is made within six months of the grant of probate, then it will be determined in the ordinary course and may result in an order being made in respect of any part of the estate. Even if distributions have been made, including a final distribution, nevertheless an order for provision may be made in respect of assets distributed to beneficiaries under the will. That is the effect of the decision of the High Court in Easterbrook v Young,[17] as confirmed in respect of the IFP Act in Blunden v Blunden[18] and Broadhead v Prescott.[19] This ability, to make an order for provision in respect of assets of the estate that have been distributed, is a product of the specification in s 10 that any order for provision operates as a codicil executed prior to the deceased’s death, and is recognised by s 14(3) of the IFP Act.[20] It is also implicit in the existence of the limitation upon the Court’s power to disturb distributions already made in the case of applications requiring an extension of time, and the absence of any equivalent limitation upon claims brought within time.
[17] Easterbrook v Young (1977) 136 CLR 308 at 318.
[18] Blunden v Blunden [2008] SASC 286 at [30].
[19] Broadhead v Prescott [2015] SASC 34 at [21].
[20] Blunden v Blunden [2008] SASC 286 at [30].
In the event of an order in respect of an asset that has been distributed to a beneficiary, that asset will be “held” by the beneficiary subject to the order for provision (s 9(7)). Presumably this means held on trust for the successful claimant. In other words, the successful claimant will have a proprietary right permitting him or her to trace through to the asset (or its traceable proceeds) in the beneficiary’s hands. If the beneficiary no longer holds the asset (or its traceable proceeds), then it would seem that the claimant would have a personal claim against the beneficiary.[21]
[21] Re Diplock [1948] Ch 465; Ministry of Health v Simpson [1951] AC 251.
If the claim is made outside of six months from the grant of probate, then the implications of this will depend, inter alia, upon whether there has been no distribution of the estate, partial distribution of the estate or final distribution of the estate.
1.   If there has been no distribution of the estate, then the Court has a discretion to grant an extension of time. If the extension of time is granted the claim will be determined in the ordinary course and may result in an order being made in respect of any part of the estate.
2.   If there has been a partial distribution of the estate, then the Court retains a discretion to grant an extension of time. However, if the extension of time is granted, the claim will be confined to the part of the estate which has not been distributed.[22] This is a consequence of the specification in s 8(5) of the IFP Act that the part of the estate that has been distributed shall not be “disturbed”.[23] Certainly this means that the distributions cannot be set aside.[24] But in my view it means more than this. It means that the distributions cannot be disturbed in any way, including by any order for provision in respect of the distributed asset. A beneficiary who has received a distribution will not be vulnerable to an order requiring that he or she hold the distributed asset subject to an order for provision, or any other form of liability by reason of having received that asset. Allowing any form of proprietary claim against the beneficiary would plainly operate to “disturb” the distribution. Further, given that a personal claim against the beneficiary would be parasitic upon such a proprietary claim, it seems to me that such a claim was also intended to be precluded by the operation of s 8(5).
3.   If there has been final distribution of the estate, then no order for provision may be made. The claim will be out of time, and the court has no power to grant an extension of time. It follows that no beneficiary who has received a distribution would be vulnerable to either a proprietary or personal claim.
[22] Blunden v Blunden [2008] SASC 286 at [33]; Yancic v Yancic [2010] SASC 335 at [11]; Dawson v Fitch (2002) 84 SASR 20 at [30]; Young v IOOF Australia Trustees Ltd (1995) 180 LSJS 302 at 314.
[23] The position was the same under the legislation considered in Easterbrook v Young (1977) 136 CLR 308 at 318, although their Honours did not elaborate upon the meaning or effect of this limitation upon provision claims.
[24] Blunden v Blunden [2008] SASC 286 at [28], [30].

Less clear is the extent of any liability on the part of the executors in the event of a claim made in circumstances where there has been a distribution of some or all of the assets of the estate.
The defendants correctly concede that the executor may in some circumstances incur a personal liability to account for any shortfall in the amount available to meet a successful claim for provision by reason of a distribution having been made. However, the basis for this conceded potential liability is not some fiduciary duty owed to the claimant as such (that is, in their capacity as a claimant or prospective claimant under the IFP Act, and prior to a successful determination of their claim). Rather it is a recognition of the nature and consequences of an order for provision if and when made. The order being one that takes effect as a codicil of the will executed prior to death,[25] it in substance results in the retrospective creation of an ‘amended’ or ‘new’ will containing a gift (or enlarged gift) in favour of the successful claimant, and hence confers on the claimant the status of beneficiary in respect of that gift (or enlarged gift). By making any distribution in accordance with the ‘original’ will, but which is contrary to the terms of the ‘new’ will, the executor will have acted contrary to the terms of the will and hence in breach of his or her duties as executor owed to all beneficiaries (including any ‘new’ beneficiary) to administer the estate in accordance with the terms of the will.
[25] Under s 10 of the IFP Act; see also Easterbrook v Young (1977) 136 CLR 308 at 315.
The basis for this liability is explained in more detail later in these reasons. However, once the basis for this potential liability on the part of an executor is properly understood, it follows that the liability is dependent upon the claimant succeeding in obtaining an order for provision, and hence in achieving the status of a person entitled to recover in accordance with the terms of the (new) will. It is not a liability that springs from the breach of any duty owed to the claimant as such and prior to the successful determination of his or her claim.
While there is thus a potential liability on the part of an executor in the case of a successful claim for provision, this is subject to the operation of s 14(1) of the IFP Act. The effect of that section is that an executor who has “lawfully distributed” the estate, or any part thereof, is not liable to account for that distribution unless he or she had notice of the claim for provision at the time of the distribution. Section 14(2) provides that this notice must be in writing from the claimant or their solicitor, expires after three months if no claim is made, and is not able to be renewed.
While this protection from liability on the part of the executor is confined to distributions “lawfully” made, it is my view that this requires merely that the distributions were made in accordance with the terms of the will as they then stood. I do not think the mere fact that a distribution is later established to have been made in breach of trust (by reason of a successful claim for provision resulting in an order that takes (retrospective) effect as a codicil predating the deceased’s death) is sufficient to render a distribution one made unlawfully.
In my view, that is the appropriate construction of s 14(1). It is the construction that was adopted by Bleby J in Blunden v Blunden.[26]To treat such a distribution as unlawful would not only leave s 14(1) with little work to do, it would also involve a distortion of the statutory language. The terms of s 14(1) invite a focus upon the character of the distribution at the time it was made. And in my view it would be stretching that language to treat a distribution in accordance with the terms of the will as it then stood as other than a distribution “lawfully” made. While a premature distribution might be unwise, imprudent or even inappropriate, and expose the executor to a risk of liability in the event that a provision claim ultimately succeeds, I do not consider that it can be said that such a distribution is unlawful. Put another way, and despite the appropriateness of the judicial warnings against premature distributions that appear in the cases considered later in these reasons, I do not consider that a failure to heed such warnings would of itself render a distribution unlawful.[27]
[26] Blunden v Blunden [2008] SASC 286 at [32]-[33].
[27] cf the protection that is afforded to executors in some other States, which requires the distributions have been “properly” made. It is not necessary for me to determine whether this might result in a more confined form of protection for executors in those jurisdictions.
While the plaintiffs contend that distributions made in breach of a fiduciary duty owed by the executors to family provision claimants could not be protected as having been made lawfully, this of course assumes the existence of such duty. For reasons set out later, I do not consider that executors owe any such duty.
The net effect of all of the above is to leave only a narrow scope for liability on the part of the executor to a claimant for provision.
1. In the event of a claim for provision brought outside six months from probate, and after final distribution (even if that occurred during the six months), the claim will be out of time and the Court will not have discretion to extend time. The claim will fail, and there will be no liability on the part of either the beneficiaries or the executor.[28]
2. In the event of a claim for provision brought outside six months from probate, but before final distribution, the Court will have a discretion to extend time and a further discretion to make an order for provision. As such order shall not disturb distributions made prior to the claim being brought, there will (for the reasons explained above) be no liability on the part of beneficiaries who have received distributions. There will also be no liability to account on the part of the executor because any order for provision that is made will be confined to the undistributed assets remaining in the estate.[29]
3. In the event of a claim brought within six months from the grant of probate, the Court has a discretion to order provision out of any assets of the estate, regardless of whether or not they have been distributed. In the event that an order is made in respect of distributed assets, the beneficiaries who received those assets will be exposed to either a proprietary or personal claim by the successful claimant. Further, the executor may be liable to account to the extent of any shortfall in the estate on account of distributions made. But by reason of the protection afforded to an executor under s 14(1) this will be so only if, and to the extent that, those distributions were made following the giving of (unexpired) notice of the claim.
[28] This was the situation and outcome in Blunden v Blunden [2008] SASC 286 at [18], [19], [32], [33].
[29] Blunden v Blunden [2008] SASC 286 at [33]. This was the situation and outcome under a relevantly similar scheme in Brown v Holt [1961] VR 435 at 443. Indeed the undistributed portion of the estate was so limited that it was “quite inadequate” to support any order for provision, with the result that the application for an extension of time was futile and rejected, without any suggestion of liability on the part of the executor.
In summary, an executor will only be exposed to personal liability in the event that each of the following occurs: (i) he or she receives notice of a claim under the IFP Act; (ii) he or she then makes a distribution within three months of receipt of that notice; (iii) the claimant brings a claim following that distribution but still within both three months of the notice provided to the executor and six months of the grant of probate; and (iv) the claim succeeds and results in an order for provision in respect of the part of the estate distributed in the circumstances described in (ii).
Given these limited circumstances in which the executor may be liable, and in particular the absence of any liability ahead of written notice of a claim, the legislation permits considerable freedom or latitude on the part of the executor to distribute promptly following the grant of probate. Certainly there is no statutory obligation to await the expiration of the six month period for the making of claims. Nor is there any statutory obligation to provide any notice of any intended distributions. And in the absence of notice of a claim there is no potential liability for the executor that might act as a disincentive to premature distributions, or incentive to delay distribution until after the expiration of that period.[30] Indeed, on the above view of the limited scope for liability on the part of the executor, it might be said that there is something of an incentive on the part of executors to distribute early and ahead of receipt of anything that might be construed as notice for the purposes of s 14 of the IFP Act.
[30] If the distributions were made by the executor to himself or herself, then they may well face liability in their capacity as a beneficiary if the claim for provision is brought within six months.
While the defendants accept that this is the effect of the scheme created by the IFP Act, they reject the suggestion that this is some way undermines, or fails to give effect to, the essentially remedial purpose of the legislation of facilitating claims on behalf of persons omitted from a deceased’s will. Rather, they contend that it simply reflects the balance that has been struck by the legislature. To the extent that the legislation confines or narrowly circumscribes the rights of claimants, and the potential liability on the part of the executor (and beneficiaries), this merely reflects a legislative intention to also ensure a level of certainty for executors and beneficiaries, and to enable deceased estates to be administered and distributed in a timely and efficient manner. For the reasons explained later, I agree with this contention.
Application of the IFP Act scheme to the present case
Applying the above analysis to the present case, it is accepted that the estate was partially (indeed, largely) distributed in April 2015. This was within less than two months of probate being granted in February 2015, and well inside the six month period for bringing a claim for provision.
If the plaintiffs’ claim had been made within six months, the Court would have had a discretion to make an order for provision in respect of any part of the estate. If such order were made, and made in respect of the assets distributed to Rosemary (the Berri property and the $81,677.89 in cash), then Rosemary (in her capacity as a beneficiary) would be potentially liable to a proprietary order that she hold those assets or their traceable proceeds subject to the order for provision in the plaintiffs’ favour, or a personal order that she pay (either to the estate or to the plaintiffs directly) the amount of the provision ordered out of those assets. And if notice of her claim had been given in conformity with s 14(2) of the IFP Act prior to the distributions, then the defendants (in their capacities as executors) would also have been liable to account for any shortfall in the estate necessary to meet the order for provision.
However, the plaintiffs’ claim was not made within the six month time limit. As final distribution had not been made, the Court retains a discretion to grant an extension of the time within which to bring the claim for provision. However, even if this application for an extension of time were successful, the claim for provision will be confined to the undistributed assets – being the $60,000 retained in the estate pending its anticipated distribution to the plaintiffs on account of the $30,000 legacies to each of them under the will. As the distributions already made cannot be disturbed, there are no other assets in the estate from which the provision may be ordered. The claim for provision will thus inevitably fail. Further, and as a consequence, there can be no liability on the part of any of the beneficiaries who have received distributions, or on the part of the executors for the premature distributions made by them.
The plaintiffs’ claims will thus all fail unless they can establish that by making distributions in the face of the potential for claims under the IFP Act the defendants, as executors, breached a fiduciary duty owed to the plaintiffs as prospective claimants.
The contended fiduciary duty to prospective claimants
It is against this background that it is necessary to consider the plaintiffs’ contention that the liability of executors is not confined in the way analysed above, but rather extends to a potential liability for breach of the fiduciary duty that they contend is owed by an executor to potential claimants under the IFP Act.
The plaintiffs accept that both the precise circumstances in which this duty might exist (for example, whether it extends to all potential claimants, or only those of whose claims the executor was aware or ought to have been aware), and the precise content of the duty (for example, whether it extends beyond a mere duty not to prefer the executor’s own interests to a duty of even-handedness or some other positive duty to give notice to a potential claimant before making a distribution), are not clear. However, they contend that it is sufficient for the purposes of avoiding summary judgment, and hence for their appeal to be allowed, that it is arguable that such a duty exists and extends to the circumstances of this case.
The plaintiffs contend that the authorities in this area are replete with warnings to executors that they should not, except in limited circumstances, distribute the deceased’s estate until the time for bringing any claims for provision has passed, and statements to the effect that executors who do distribute estates prematurely do so at their own risk. The plaintiffs contend that these warnings and statements are predicated upon the existence of a fiduciary duty of the type they contend for in this case. They contend that the existence of this fiduciary duty has been recognised in several Australian and New Zealand cases.
In considering the plaintiffs’ submissions, and the duty they contend for, I shall commence with a general summary of an executor’s duties and responsibilities in administering a deceased’s estate. The existence of any fiduciary duty must be considered in the context of these duties and responsibilities. Further, a proper understanding of the cases relied upon by the plaintiffs requires an understanding of these duties and responsibilities. I will then review the cases relied upon by the plaintiff. In so doing, it will be important to bear in mind the distinction between (i) the duty that an executor undoubtedly owes to administer the estate in accordance with the terms of the will, and hence the potential liability to account to a successful claimant for provision in the event of a (premature) distribution which does not reflect the terms of the (new) will, and (ii) the fiduciary duty contended for by the plaintiffs, which is owed to a claimant or potential claimant as such and is not dependent upon their claim being successful. My earlier analysis of the operation of the IFP Act regime, and the potential liability of an executor for ‘premature’ distributions, included recognition of the former head of liability, but not the latter.
Duties of an executor in administering an estate
The key tasks of an executor in administering an estate are to get in the assets of the estate, pay the expenses and liabilities of the testator, and then distribute the estate in accordance with the will. In carrying out these tasks the executor’s primary duty is to carry out the wishes of the testator, as expressed in the will. While the executor is afforded some flexibility in his or her approach to the above tasks, there is an obligation to proceed with the administration of the estate with due diligence.[31]
[31] Re Tankard; Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69 at 73; National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1; Partridge v Equity Trustees Executors and Agency Co Ltd (1947) 75 CLR 149. There is a general principle, falling short of a rule of law, that the executor should complete the administration within one year from the date of death of the testator. This is sometimes referred to as “the executors’ year”.
During the administration of the estate, both the legal and beneficial interests in the estate assets vest initially in the executor, and the beneficiaries do not have any interest in those assets. What they have is a chose in action, or personal right, against the executor to compel the proper administration of the estate.[32] It is only once the executor has completed his or her duties of administration (apart from distributing the assets to beneficiaries or placing them in the hands of trustees) that the beneficiaries obtain an interest in the assets.
[32] Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 at 27.
An executor may be appointed by the will to be both an executor and trustee. But they are separate offices. The latter only takes effect once the executor has completed the duties of administration. From that moment, the executor holds the assets as trustee[33] for the beneficiaries, and depending on the terms of the will, the equitable interests in the assets will then vest in the beneficiaries.[34] From that moment, the ‘executor’ can exercise only the powers of a trustee over the assets concerned, and not the powers of an executor.
[33] An express trustee if made an executor and trustee by the terms of the will, or a constructive trustee if made only an executor.
[34] Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12.
However, even prior to completion of the duties of administration, and hence prior to any separate office of trustee taking effect, the executor is treated by the law as being in a position or role akin to that of a trustee, and as owing obligations akin to those of a trustee. The reason for this is that while the assets are vested in the executor, he or she does not ‘own’ them in any real sense. The executor holds them for the benefit of the beneficiaries entitled under the will, and in accordance with the terms of that will.
In Re Marsden,[35] Kay J said that an executor was “personally liable in equity for all breaches of the ordinary trusts which in Courts of Equity are considered to arise from his office”, and is a trustee “in this sense”.[36] His Honour later added that “in equity the executor is bound by a most direct trust to deal properly with the assets and to apply them in due course of administration of the estate”.[37]
[35] Re Marsden (1884) 26 Ch D 783.
[36] Re Marsden (1884) 26 Ch D 783 at 789.
[37] Re Marsden (1884) 26 Ch D 783 at 790.
The Privy Council endorsed this conception of the executor’s status as akin to that of a trustee. In delivering the judgment of their Lordships, Viscount Radcliffe explained:[38]
… whatever property came to the executor virtute officii came to him in full ownership, without distinction between legal and equitable interests. The whole property was his. He held it for the purpose of carrying out the functions and duties of administration, not for his own benefit; and these duties would be enforced upon him by the Court of Chancery, if application had to be made for that purpose by a creditor or beneficiary interested in the estate. Certainly, therefore, he was in a fiduciary position with regard to the assets that came to him in the right of his office, and for certain purposes and in some aspects he was treated by the Court as a trustee. “An executor”, said Kay J in In re Marsden, “is personally liable in equity for all breaches of the ordinary trusts which in Courts of Equity are considered to arise from his office.” He is a trustee “in this sense”.
It may not be possible to state exhaustively what those trusts are at any one moment. Essentially, they are trusts to preserve the assets, to deal properly with them, and to apply them in due course of administration for the benefit of those interested according to that course, creditors, the death duty authorities, legatees of various sorts, and the residuary beneficiaries.
[38] Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 at 17 (omitting citations).

The executor’s duty, like that of a trustee, is at its most basic level a duty to obey the terms of the relevant trust (here, the will). This involves a duty to perform the trust, or administer the will, honestly and in good faith for the benefit of (or in the best interests of) the beneficiaries.[39] In so doing, the executor must also act reasonably, or with reasonable prudence.[40]
[39] Reid v Hubbard [2003] VSC 387 at [23]-[24].
[40] Reid v Hubbard [2003] VSC 387 at [33]-[34]; Pateman v Heyen (1993) 33 NSWLR 188 at 199-200.
Further, in recognition of the trustee-type role of an executor, it is accepted that the executor is in a fiduciary relationship with the beneficiaries under the will.[41] As such, the executor is subject to the twin proscriptive fiduciary obligations reflected in the ‘no conflicts’ and ‘no profits’ rules.[42] As to the first of these proscriptive obligations, the executor must not place him or herself in a position where he or she has a personal interest that conflicts or may possibly conflict with the interest of the estate which he or she is bound to protect, except insofar as the terms of the will provide otherwise. Indeed, not only must the executor not favour their own personal interest over that of the beneficiaries, but they must also not favour the interests of any particular beneficiary or beneficiaries over that of other beneficiaries. This may be referred to as a duty of impartiality or even-handedness between the beneficiaries. As to the second of the twin proscriptive obligations, the executor must not make any unauthorised profit.
[41] Brine v Carter [2015] SASC 205 at [124]; Johnson v Trotter [2006] NSWSC 67 at [23].
[42] See the more detailed discussion of these obligations in Brine v Carter [2015] SASC 205 at [124]-[135].
There is a debate in the authorities as to whether fiduciary obligations are confined to these two proscriptive obligations,[43] or whether they also include some prescriptive obligations such as the duty I have earlier described as the duty to act reasonably. The debate as to whether such duties are properly characterised as fiduciary in character is not an entirely barren one as it may have implications for the availability, form and measure of the relief available for a breach. It may also have implications for third parties in terms of their potential accessorial liability for having knowingly assisted or participated in, or having knowingly received a benefit from, the relevant breach of duty. But these are not matters that need to be explored or resolved on this appeal.
[43] This is the view favoured in Breen v Williams (1996) 186 CLR 71 at 113, 137-138 and Pilmer v Duke Group Ltd (2001) 207 CLR 165 at [74].
In terms of the enforcement of the above duties, and focusing upon the present context of an allegation of ‘premature’ distributions to beneficiaries, the ordinary rule is that the executor is personally liable to the full extent of the assets which have come into the hands of that executor.[44] This liability is sometimes referred to as the executor being liable to account for the estate property, or having a liability to restore the estate. The executor is accountable for any loss caused to the beneficiaries (or creditors) of the estate from a failure to perform his or her duties.[45] This might include, for example, a liability to account for, or restore, monies distributed to a beneficiary to the extent necessary to meet a debt owed by the estate but overlooked by the executor at the time distributions were made.
[44] Norman v Baldry (1834) 6 Sim 621; 58 ER 726. To the extent the assets of the deceased have been fully exhausted in the administration, the defence of plene administravit is available to the executor.
[45] In the matter of the Estate of Ward (Supreme Court of WA, Owen J, 9 April 1998, unreported, p 17).
An executor who causes loss to a beneficiary or creditor by a breach of his or her duties of administration is also potentially liable at common law in damages for devastavit (essentially mismanagement, misapplication or waste of the estate). The action is one in tort, and may be brought by a beneficiary or creditor.[46] An executor may be liable on a devastavit for the loss occasioned by a beneficiary or creditor through the distribution of an estate without regard to the claims of that beneficiary or creditor. This would include a distribution made without making provision for future or contingent liabilities.[47]
[46] National Trustees Executors and Agency Co of Australasia Ltd v Dwyer (1940) 63 CLR 1 at 17; Re Tankard;Tankard v Midland Bank Executor and Trustee Co Ltd [1942] Ch 69.
[47] Commissioner of Stamps (WA) v West Australian Trustee, Executor and Agency Co Ltd (1926) 38 CLR 63 at 71, applying Taylor v Taylor (1870) LR 10 Eq 477.
The circumstances that might trigger liability on a devastavit may at the same time constitute a breach of the executor’s fiduciary or equitable obligations, giving rise to an alternative right to one of the equitable remedies already mentioned. Given the parallels between these causes of action, there has been some convergence of discourse, if not concepts, in this area. It has been suggested that this may explain why judicial reference to devastavit is less common nowadays.[48] It is common for reference to be made simply to an executor’s liability to account for payments made in breach of their obligations or the terms of the will. In some cases the distinction between the common law and equitable characterisation of the claims may, for the reasons I have adverted to earlier, be of significance. But again, these are not matters that need to be resolved on this appeal.
[48] Dal Pont & Mackie, Law of Succession, 2013 at [12.45].
Focusing on the category of case where it is alleged that the executor has made a ‘premature’ distribution of the estate, a commonly cited illustration of the personal liability that an executor might incur to a creditor is Taylor v Taylor.[49] In that case, the executors of a testator, who held shares in a company, paid a legacy under the will without retaining provision for any future or contingent liability in respect of the shares which the executors had retained unsold. The company in which the shares were held was wound up, and the liquidator called on the executors to pay the liability attaching to the shares. The executors defended the claim on the basis that the liability was only contingent at the relevant time because the company was a going concern at the time of the testator’s death. However, the executors were ordered to pay the liability to the liquidator. Lord Romilly MR held that the executors had committed a “breach of trust” in paying the legacy without providing for the liability attaching to the testator’s estate at the time of his death.[50]
[49] Taylor v Taylor (1870) LR 10 Eq 477.
[50] Taylor v Taylor (1870) LR 10 Eq 477 at 478.
In Commissioner of Stamps (WA) v West Australian Trustee, Executor and Agency Co Ltd,[51] Higgins J cited Taylor v Taylor as authority for the proposition that in the ordinary course of an administration, executors would be liable on a devastavit if they were to distribute without making provision for future or contingent obligations.
[51] Commissioner of Stamps (WA) v West Australian Trustee, Executor and Agency Co Ltd (1926) 38 CLR 63 at 71.
By analogy with this potential liability in respect of contingent or prospective creditors of the estate, the executor also faces a potential liability in respect of claimants under the IFP Act. Indeed, given that a successful claim for provision under that Act takes effect as a codicil to the testator’s will executed immediately before their death, a claimant or potential claimant for provision may be seen as not merely a prospective creditor but a prospective beneficiary. If the claim for provision ultimately succeeds, any distribution that has been made contrary to the terms of the (new) will may, analogously with Taylor v Taylor, involve a breach of trust. As I have explained earlier in these reasons, the executor may thus be liable for any loss thereby suffered by the successful claimant for provision – albeit that in South Australia this potential liability is subject to the significant qualification of the protection afforded to an executor under s 14(1) of the IFP Act.
At general law (as opposed to under s 14(1) of the IFP Act[52]), it is no answer to this potential liability on the part of the executor that, at the time the distribution was made, it was made in accordance with the terms of the will as it then stood. This may be seen, for example, from the liability found to exist in Guardian Trust and Executors of New Zealand Ltd v Public Trustee of New Zealand.[53] In that case, the executors of a will had obtained probate. Despite having notice of the fact that the next of kin intended applying for revocation of the grant of probate on the grounds of want of testamentary capacity, they paid out legacies under the will to persons and institutions not entitled to share in the estate on an intestacy. The next of kin were successful in obtaining a revocation of probate on the ground of want of testamentary capacity. The deceased had made no other will and letters of administration were granted to the next-of-kin. The Privy Council held that the executors were liable to the deceased’s estate for the sums paid under the legacies under the will. Lord Romer, who delivered the judgment of their Lordships, said that the case fell to be decided in accordance with the principles of equity. His Lordship said:[54]
One of those principles is that if a trustee or other person in a fiduciary capacity has received notice that a fund in his possession is, or may be, claimed by A, he will be liable to A if he deals with the fund in disregard of that notice should the claim subsequently prove to be well founded.
[52] For the reasons set out earlier in my summary of the operation of the IFP Act scheme, s 14(1) of the IFP Act will provide protection in this circumstance.
[53] Guardian Trust and Executors of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115.
[54] Guardian Trust and Executors of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115 at 127.
The practical effect of the duties of an executor as summarised above, and in particular their potential liability to prospective creditors and family provision claimants, is that the executor must strike a balance between, on the one hand, proceeding with the administration with due diligence and, on the other hand, ensuring that he or she retains sufficient funds to meet any outstanding debts or claims on the estate. While the executor cannot delay indefinitely, the authorities are replete with warnings to executors as to the potential consequences for them of distributing prematurely.
An often-cited example of these warnings is from the reasons of Vaisey J in Re Simson.[55] In that case, the testator’s widow had brought a claim for provision, contending that the modest legacy in her favour in the will was inadequate. Vaisey J determined that provision should be made in her favour by way of an annuity of £96, of which £9 a year should be charged on and payable out of the income of bequests made to the testator’s nephews under his will. While his Honour indicated that he would ordinarily have been inclined to order that the nephews pay the annuity out of their legacies, there was a difficulty in the circumstances of that case. During an interlocutory hearing the widow had (inadvisably) conceded that she made no claim against the nephews. Accordingly, Vaisey J held that no order would be made granting the widow £9 a year charged on the nephews’ interest. Vaisey J nevertheless sounded the following warning to executors:[56]
I wish it to be made clear that in these cases it is the paramount duty of the executor to avoid embarrassing the court and to think once, twice and several times before allowing any part of all of the estate to be paid out to any beneficiary – whether a specific legatee or a residuary legatee, or whoever it may be matters not – while any application under this Act is either pending or impending.
If these legacies have been paid, as I understand they have, the matter comes before me in a form which adds further embarrassment to an already embarrassing jurisdiction. I wish it to be distinctly understood – I have said it before and I say it again, and I hope some notice will be taken of it – that where an application under the Inheritance (Family Provision) Act, 1938, is either pending or impending, that is to say, during the first six months after grant of representation, if it is a case in which there is any risk of such a thing happening, the executor distributes the estate at his risk. If beneficiaries come and pester him and say that they want their legacies and pressure is put on other beneficiaries to allow these anticipatory payments to be made, in my judgment it is the duty of the executor to resist any such pressure. I think it must be said that where the court has to deal with a matter under this Act the estate should be there intact. Of course, duties and debts, and that sort of thing, can be paid – there is no question about that – but no distribution to beneficiaries should be made while there is any possibility or expectation that an application under this Act will be made.
[55] Re Simson [1950] Ch 38.
[56] Re Simson [1950] Ch 38 at 42-43.
As will be seen below, this warning has been repeated in a number of Australian cases. Similar warnings have been sounded by the New Zealand courts, for example in Re Winwood[57] and Re Gimblett.[58]
[57] Re Winwood [1959] NZLR 246.
[58] Re Gimblett [1960] NZLR 664.
The plaintiffs in this case place significant emphasis upon the judicial warnings such as the above, extending as they do to claimants, and indeed potential claimants, for provision under the IFP Act. The plaintiffs contend that these warnings must reflect a duty owed to those claimants and potential claimants, and hence involve recognition that the fiduciary duties owed to beneficiaries of the estate must also be owed to these claimants and potential claimants.
The central issue on this appeal is whether the elevation of these warnings to the status of a duty owed to, and enforceable by, claimants or potential claimants is sound as a matter of law.
In my view, the key to a proper understanding of these warnings lies in an appreciation of the distinction between a person who is a family provision claimant (or potential claimant) and a person who has been successful in obtaining an order for provision in their favour. While the latter, by reason of having established their entitlement, becomes a beneficiary and thus has an interest that attracts enforceable duties (including fiduciary duties) on the part of the executor, the former does not. It is only once the claim has been successful that the executor may be liable in equity or on a devastavit to the claimant for loss suffered by reason of distributions made without regard to their claim. If the claim does not succeed, then no duty or liability arises.
Properly understood in this way, the warnings are not premised upon duties owed to claimants as such. Rather they are merely a reflection of the risk of such duties, and consequential liability on the part of the executor, arising in the event that the relevant claim is successful.
It is true that Vaisey J used the terminology of a “duty” on the part of an executor to take account of pending and impending family provision claims. However, he did so in the context of reference to an executor who distributes without regard to this interest doing so “at his risk”. In other words, his Honour was not speaking of a duty enforceable by the person with the pending or impending claim. Rather, it was just that if the person’s interest were ignored there was a risk of liability if and when the claim were to succeed (in the way the widow’s claim in that case had succeeded) in establishing an entitlement to provision. This is consistent with the terms of the passage extracted above from the judgment of the Privy Council in Guardian Trust and Executors Co of New Zealand Ltd v Public Trustee of New Zealand. Lord Romer in that passage spoke of a fiduciary having a liability to a person making a claim on the relevant fund “should the claim subsequently prove to be well founded”.
A consequence of this distinction is that if the family provision claim does not ultimately succeed, then the claimant has no remedy against an executor who distributed the estate prematurely. That is so even if the fact or timing of these distributions was a reason for the failure of the provision claim.
A survey of the authorities
Against this background it is appropriate to survey the authorities which have considered the warning sounded by Vaisey J in Re Simson, and the potential liability of an executor to claimants for provision. In so doing it is important to bear in mind that there are differences between the legislative regimes that exist around Australia and in New Zealand. It is thus convenient to group the cases by reference to the jurisdictions in which they arose.
South Australia
The plaintiffs rely upon In the Estate of Gough.[59] In that case the widow of the testator brought a claim for further provision under the IFP Act. The widow also applied for an injunction restraining the executor from selling a property that formed part of the deceased’s estate (with an intention of using the proceeds to pay two legacies) pending the hearing of her claim for further provision. In ordering an injunction, Zelling J set out the warning given to executors by Vaisey J in Re Simson, adding that these words applied a fortiori where an application for provision has already been made.[60]
[59] In the Estate of Gough (1973) 5 SASR 559.
[60] In the Estate of Gough (1973) 5 SASR 559 at 566.
While clearly endorsing Vaisey J’s warning, I do not understand Zelling J’s reasoning to involve any conclusion that the executor in that case owed any duty to the plaintiff enforceable by her in her status as a mere claimant for provision. Rather, it was sufficient for his Honour to conclude, as he did, that the limited provision for the widow in the will, and the nature and extent of the assets in the estate, were such that it was “by no means unlikely” that the trial judge would order further provision, and that the property or some interest in it be applied to that end. In other words, it was the real prospect of a duty and liability in the event of the claim succeeding in the future that justified an injunctive order preserving the status quo.[61]
[61] A similar rationale explains the grant of injunctive relief to protect a potential claimant’s (prospective) rights in Packo v Packo (1989) 17 NSWLR 316 at 318-319.
The decision of this Court in Blunden v Blunden[62] is consistent with, and in many respects supportive of, my analysis. The plaintiff in that case was the adopted daughter of the deceased. She was omitted from the will and brought a claim for provision under the IFP Act. The executor had made distributions, and indeed final distribution, of the estate within the six month limitation period. However, the plaintiff did not bring her claim until after the six month period had expired. Her claim was accompanied by an application for an extension of time, but Bleby J rejected the claim on the basis that, by reason of s 8(4) of the IFP Act, his Honour had no jurisdiction to extend time given that final distribution of the estate had been made.[63]
[62] Blunden v Blunden [2008] SASC 286.
[63] Blunden v Blunden [2008] SASC 286 at [18]-[19].
In seeking to avoid the consequences of s 8(4), the plaintiff contended that the distribution of the estate before the six month period had expired was unlawful and should be disregarded. In rejecting this contention, Bleby J referred to both the warning sounded by Vaisey J in Re Simson, and its endorsement by Zelling J in In the Estate of Gough. Bleby J said:[64]
There is no doubt that an executor or administrator should ordinarily refrain from distributing any part of an estate during the period in which an application under the Act may be brought as of right or during the period of any extension of time granted by the Court under s 8.
…
However, the prohibition on distribution is not absolute. There is authority for an executor to distribute a legacy if it is trifling in comparison with the size of the residue of the estate, if a beneficiary has a strong moral claim to provision and his or her need is urgent, if all persons who are eligible to apply for provision have effectively disclaimed their right to do so or if it is clear that there is no person who is eligible to apply for provision from the deceased’s estate.
It would seem that the consequence in equity of an executor distributing an estate before the relevant period has expired is that the executor may be personally liable to a successful applicant who suffers loss as a result. In other words, the executor is at risk if he or she makes the distribution. However the executor is not prevented from doing so.
[64] Blunden v Blunden [2008] SASC 286 at [20]-[24] (omitting citations; emphasis added).

In New Zealand, on the other hand, several decisions have expressly analysed the liability of an executor in terms of a fiduciary duty of even-handedness owed to claimants for provision.
Significantly, in my view, that is not how the liability was initially analysed in New Zealand by McGregor J in Re Winwood. The analysis in that case was in terms consistent with mine, and hence by reference to the potential for a liability for breach of duty, or devastavit, in the event that a claim succeeded. However, subsequent cases in New Zealand have increasingly strayed from this more narrow basis and potential for liability.
In Re Magson, Cooke P contemplated the possibility of a duty owed by an executor to a potential claimant not of full age or mental capacity. However, the possibility of such a duty was said to arise from the operation of the specific mechanism under the New Zealand legislation for the executor to bring such claims, rather than from the existence of some fiduciary duty arising in accordance with general principles – let alone a fiduciary duty owed to all potential claimants.
In Irvine v Public Trustee, Cooke P spoke of a duty of even-handedness owed by the executor to all persons of whose claims he or she was aware. This reference to a duty was not supported by any authority (other than a footnote from Halsbury’s and reference to Re Magson), or explanation for its basis. Further, it was a reference made in the context of an explanation of the justification for the executor in that case acting in a way that took account of the claimants’ interest, rather than in the context of analysis of an executor’s liability to an aggrieved claimant.
Nevertheless, as my survey of the authorities has revealed, subsequent cases in New Zealand have treated Irvine v Public Trustee as authority for the existence of a fiduciary duty of even-handedness owed by executors to family provision claimants. The focus in those cases has tended to be on the extent of the duty rather than the legal basis for the existence of such a duty. Indeed, the only detailed analysis of the principles underpinning the imposition of fiduciary duties owed by an executor to family provision claimants has been in the reasons of Venning J in Sadler v Public Trust, as adopted by the Court of Appeal in that case. In my view, as elaborated upon below, not only were Venning J’s reasons a sound basis for rejecting the existence of a fiduciary duty to the potential claimant in that case, but they were also a sound basis for rejecting the existence of any fiduciary duty owed to family provision claimants more generally.
In addition to the lack of any detailed consideration in the New Zealand cases of the legal basis for the recognition of fiduciary duties owed to family provision claimants, it is also appropriate to be cautious in applying conclusions reached in the context of different legislative regimes. I have already mentioned the significance of the New Zealand provisions giving rise to a duty on the part of an executor to potential claimants not of full age or mental capacity. It may also be significant that under the New Zealand legislation, like the Queensland legislation, and unlike the South Australian legislation, provision cannot be made out of assets of the estate that have already been distributed.
Having concluded that the Australian authorities provide little, if any, support for the fiduciary duties contended for by the plaintiffs, and given the need for caution in applying the New Zealand authorities in the context of the South Australian legislative scheme, it is appropriate to consider the issue by reference to the general principles governing the existence of fiduciary duties under Australian law.
The principles governing the imposition of fiduciary duties
Under Australian law, in determining whether fiduciary duties are owed, a common starting point is the following passage from the reasons for Mason J in Hospital Products Ltd v United States Surgical Corp:[140]
… it is important in the first instance to ascertain the characteristics which, according to tradition, identify a fiduciary relationship. As the courts have declined to define the concept, preferring instead to develop the law in a case by case approach, we have to distil the essence or the characteristics of the relationship from the illustrations which the judicial decisions provide. In so doing we must recognize that the categories of fiduciary relationships are not closed …
The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations … viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions “for”, “on behalf of”, and “in the interests of” signify that the fiduciary acts in a “representative” character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.
[140] Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 96-97 (omitting citations).
Similarly, in Grimaldi v Chameleon Mining NL (No 2),[141] Finn, Stone and Perram JJ held that a person will be in a fiduciary relationship with another when that person has undertaken to perform such a function for, or has assumed such a responsibility to, another as would thereby reasonably entitle that other to expect that he or she will act in that other’s interest to the exclusion of his or her own or any third parties’ interest.
[141] Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 at [177].
The relationship between trustee and beneficiary is an accepted category of fiduciary relationship. For the reasons mentioned earlier, and in particular the trustee-type role of an executor, it has also been accepted that fiduciary duties are owed by an executor to beneficiaries named in the will. However, the position of persons claiming, or potentially able to claim, an order for provision are in a different position. They are not in an established category of fiduciary relationship. Their position must be analysed having regard to the features or characteristics mentioned in the authorities as indicative of a fiduciary relationship.
It may be accepted that a family provision claimant is vulnerable in the sense that the executor is in a position to adversely affect the claimant’s interest – for example, by making an early distribution. However, vulnerability is not sufficient to justify the imposition of fiduciary duties. A person’s interests are often vulnerable to action by another without there being any fiduciary relationship arising between the two.
It is necessary to identify something in the relationship between the parties that justifies and requires an obligation of loyalty by one to the other. Often this is found in some form of undertaking, agreement or assumption of responsibility by the fiduciary to act in the interests of the person in a particular context; or to act ‘for’ or ‘on behalf of’, or as a representative of, the person in that context.
In the case of a beneficiary named in the will, the basis for the undertaking or assumption of responsibility, and hence source of the fiduciary relationship, is readily apparent. It is found in the terms of the will, and the responsibility assumed by an executor to give effect to the wishes of the testator as expressed in the will. There is no equivalent undertaking, or assumption of responsibility, in the case of a claimant for provision. Indeed, as developed below, a claimant for provision is necessarily seeking to challenge – or at least vary – the terms of the will.
It is true that the IFP Act gives various categories of people a statutory entitlement to make a claim on the estate. But that statutory entitlement is readily distinguishable from the interest of a beneficiary named in the will. It does not confer any presently enforceable right upon them in relation to the estate. They are merely, or at best, a potential or contingent beneficiary. While this status may be sufficient in an appropriate case to sustain injunctive relief to preserve the status quo pending determination of their claims, I do not think it is sufficient to justify a conclusion that the executor should be taken to have undertaken or assumed a responsibility to act in their best interests or to act loyally towards them.
I accept that executors must have regard to, or take account of, the position or ‘interest’ of people entitled to bring family provision claims. They should do so not only so as to minimise their own risk of liability in the event that a claim were to succeed, but also because it is the appropriate thing to do. The office of executor comes with significant powers and responsibilities. While the primary focus of the executors is in giving effect to the wishes of the testator as expressed in a will, their powers and responsibilities exist in a broader legal context. That context includes the legislative regime for family provision claims under the IFP Act, and the rules of court governing the conduct of any claims once issued. This context exists to facilitate challenges to the estate by people who have been inadequately provided for and gives rise to responsibilities or obligations, albeit falling short of legal duties enforceable by family provision claimants.
It is for these reasons that I would endorse the warning sounded by Vaisey J in Re Simson as to the importance of executors having regard to the position of people entitled to bring family provision claims. They must do so not only so as to avoid the risk of liability in the event that a claim succeeds, but also because this is an aspect of the broad and onerous responsibilities attaching to the office of executor. Executors should not ignore, and should not be advised to ignore, these broader responsibilities, including the need to take account of the ‘interest’ of family provision claimants by ensuring that their statutory right to make a claim is not defeated or diminished by premature distributions of the estate.
But recognising a responsibility to take account of the ‘interest’ of people entitled to bring provision claims is not the same as saying the executor owes them a legally enforceable duty of loyalty that is inherent in the recognition of a fiduciary duty.
Rather than acting loyally towards claimants for provision, it is usually said that when faced with such claims, the duty of the executor is to uphold the will. This is said to require that the executor take steps to either defend, or attempt to compromise, the claims on behalf of the estate.[142] In the context of the rules of court applicable in this State (and in particular, the requirements that the beneficiaries in the will be served with the proceedings, and that the executor file affidavit material providing information about the estate and potential claimants), Lander J in In the Estate of Pettitt held that the role of the executor does not, or at least does not always, extend to taking an adversarial role in defending claims.[143] But even if an executor is required to adopt a non-adversarial, or even neutral, role in respect of family provision claims, this would still be somewhat at odds with the existence of a fiduciary duty to act in the best interests of, or loyally towards, the claimant.
[142] See, for example, the passage extracted above from the reasons of McMillan J in Robbins v Hume [2015] VSC 128 at [61].
[143] In the Estate of Pettitt (Supreme Court of South Australia, Lander J, 12 June 1998, unreported).
In answer to this, it might be said that executors are already required to undertake the task of balancing the potentially competing interests of all of the named beneficiaries, and that adding claimants for provision (or potential beneficiaries) to the list of persons whose interests must be balanced does not materially alter the nature or complexity of the task. It might be said that maintaining a neutral stance in respect of claims for provision is merely an illustration of the balance that must be struck.
However, in my view this overlooks, or at least understates, the importance of the differences between the positions of beneficiaries and claimants for provision. While there is the potential for the interests of named beneficiaries to conflict (for example in investment decisions the executor might need to make), the relative positions and interest of those beneficiaries are largely determined by, and set out in, the terms of the will. The potential for conflicting interests among the named beneficiaries is not nearly as stark as the inherently conflicting interests of claimants vis-à-vis the named beneficiaries. Inherent in the very making of a claim for provision is a challenge to interests of the beneficiaries as set out in the will.
There will also be practical difficulties associated with the executor identifying the potential claimants and the nature of and extent of their interests. The classes of people entitled to claim under the IFP Act are broad, and in the case of some testators the number of potential claimants may be large. Indeed, an executor may not know, or even have the means of knowing, the identity of all such potential claimants. The executor is likely to know little or nothing about the circumstances of some of the potential claimants. It is difficult to see how an executor who does not have a complete understanding of the identity and circumstances of potential claimants can be said to have undertaken a responsibility to act loyally in their interests. Without this understanding it is difficult to see how the executor could identify the existence and nature of the various interests, let alone fulfil an obligation to act loyally, or at least even-handedly, towards all of those interests.
It runs somewhat contrary to the high and exacting standards usually expected of a fiduciary to postulate such duties being owed to a difficult to determine group of persons, and in circumstances where there is an incomplete understanding of the nature and extent of their interests.
It might be said that a fiduciary duty to all potential claimants could be manageably discharged by simply not distributing at all pending the expiry of the relevant time period, or by providing all such persons with notice of any intended distribution. But there would be difficulties with such an approach. First, it is notable that the South Australian legislation, while it could easily have done so, does not include any prohibition against distributions within the first six months, or otherwise require that notice of distributions be provided to all potential claimants. The suggested approach thus risks bringing a rigidity and inflexibility to the task of an executor that might be seen as not only undesirable but also unintended by the South Australian legislation. Secondly, if an executor does truly owe fiduciary duties to claimants, then it is difficult to see how mere notice of a distribution would always or necessarily be an adequate discharge of their fiduciary responsibilities, or how it could always be appropriate that the duty would cease to have any work to do after the expiry of the six month period.
An alternative answer to the impracticality of fiduciary duties owed to all potential claimants might be to confine the existence of those duties to a subset of such claimants – for example, and reflecting the New Zealand approach, to those of whose claims the executor is aware, or perhaps ought to be aware. The duties would need to extend to the latter category of potential claimants if they were to extend to the plaintiffs in this case.
While this confinement would serve to reduce the number of persons to whom the postulated duties might be owed, it would do little to reduce the impracticalities and uncertainty inherent in the identification and discharge of those duties. Issues might arise as to the nature and extent of the notice, or as to the degree of likelihood of the claim being brought and being successful, or as to the extent of the executor’s knowledge in relation to these matters, that will suffice to give rise to fiduciary duties.
Finally, it is relevant that any fiduciary duties must accommodate themselves to the terms of any applicable statutory scheme. In particular, fiduciary duties cannot modify the operation or effect of statute. To hold otherwise would be to give equity impermissible supremacy over the sovereignty of Parliament.[144]
[144] Cubillo v Commonwealth (2001) 112 FCR 455 at [465], citing Tito v Waddell (No 2) [1977] Ch 106 at 139.
I would not go quite as far as to say that the IFP Act represents a code in relation to the rights and responsibilities of claimants and executors in the field of family provision claims. Indeed, the protection afforded under s 14(1) is predicated upon the potential for at least the general law liability for breach of trust or devastavit that I have mentioned earlier. However, I do consider that the legislation, particularly through the detail of ss 8 and 14, has gone a significant way towards marking out the intended boundaries of these rights and responsibilities. In my view, these provisions leave little room for any underlying or overarching fiduciary duties owed to claimants. Section 8 appears intended to make plain the implications for a claim of the timing of an application for provision (relative to both the six month time limit, and the timing of distributions). And s 14 appears intended to provide guidance to executors as to the boundaries of their potential liability, and to do so by a statutorily defined form of notice. Even if the statute were capable of accommodating the postulated fiduciary duties, the existence of such duties would tend to modify the operation or effect of the IFP Act. Not only would this be impermissible as a matter of principle, it would also be undesirable in terms of creating uncertainty in an area that the Parliament appears to have intended be certain. While views might differ as to the desirability of the relatively tight six month time limit, and the significant degree of protection afforded to executors under s 14(1), as I have mentioned earlier, this may be seen as merely a reflection of the balance struck by the legislature having regard also to the interest that testators, executors and beneficiaries have in certainty and the efficient administration of estates. If so, then equity would not lightly intervene in a way that would alter that balance.
No fiduciary duties owed to the plaintiffs as potential claimants
It is for all of the above reasons that I do not accept that the plaintiffs’ claims predicated upon the existence of fiduciary duties owed by the executors to them as potential claimants have reasonable prospects of success.
For the sake of completeness, I note that I have not overlooked the fact that the plaintiffs, as well as being claimants for provision were also named beneficiaries in the will. Each received a $30,000 legacy under the terms of the will. While their status as named beneficiaries meant that they were owed fiduciary duties by the executors, the content of those duties was confined to the executors’ conduct in respect of those legacies. There was no allegation of any breach of duty by the executors in respect of those legacies. It follows that the existence of the fiduciary duties owed to them in respect of those legacies does not alter my analysis or otherwise assist the plaintiffs in these proceedings. The plaintiffs did not suggest otherwise in their submissions.

My conclusion that there is no reasonable basis for the existence of a relevant fiduciary duty in this case is not to say that fiduciary duties could never be owed by an executor to a claimant for provision. There may be facts arising from the dealings or relationship between an executor and claimant in a particular case that warrant the imposition of such duty. Such duties might arise in a case where a claimant, to the knowledge of the executor, has a strong claim but is under some particular vulnerability in terms of being able to look after his or her own interests. I do not say that a fiduciary duty would arise in such circumstances; I merely allow for the possibility in a case involving relatively strong or unique facts.
I also acknowledge the possibility of different forms of liability on the part of an executor to family provision claimants. Of course, I have already mentioned the possibility of liability for a breach of trust or devastavit if and when the claim were to succeed, albeit subject to the protection afforded an executor under s 14(1) of the IFP Act. In addition to this, as MacKenzie v MacKenzie illustrates, there may be liability for deceit in the case of an executor who provides a claimant or potential claimant with false or misleading information. There might also be potential for liability for conduct involving fraud on a power, or the unconscionable exploitation of a special disadvantage on the part of a claimant.
While the plaintiffs’ submissions in this case at times flirted with the possibility of such alternative forms of liability, they were not ever squarely pleaded, and in any event do not appear to arise on the facts as alleged by the plaintiffs. The plaintiffs’ claims against the executors were ultimately confined to ones depending upon the existence of fiduciary duties, and for that reason do not have reasonable prospects of success.
Causation
The primary judge held that even if the executors did owe fiduciary duties to the plaintiffs, any breach of these duties did not cause any loss. Rather, the cause of any loss suffered by the plaintiffs was their conduct, or that of their solicitors, in failing to bring their claim within time.
There is no doubt that the failure to bring the claim within time has had significant consequences, and indeed, on my analysis, presents an insurmountable obstacle to the plaintiffs succeeding in any claim by the plaintiffs for breach of trust or devastavit on account of a premature distribution of the estate. At the same time, it must be remembered that the claim was ultimately served only a matter of days after the expiration of the six month time period and it was only by reason of the distributions having already been made prior to the expiration of that period that the application for an extension of time became futile.
Assuming for the purposes of this section of my reasons that in making the early distributions the executors did so in breach of fiduciary duties owed by them to the plaintiffs, the issue of causation may not be cut and dried. Not only does equity take a stringent approach to causation in terms of imposing liability on fiduciaries, but also the issue may turn upon an identification of the nature of the duty owed and the manner in which it was breached.
If the duty were confined to a duty not to distribute within the six month time period without notice, then it may be that the executors’ breach of this duty did not cause any loss. The basis for this conclusion would be the reality that the executors would have been entitled to distribute before the claims were ultimately brought. It might thus be said that under that scenario the plaintiffs were entirely the authors of their own loss. Given that the plaintiffs had notice of the executors’ conduct some months before expiration of the six month period, it would be somewhat implausible for them to suggest that notice prior to the distributions in April would have produced a different outcome.
However, the plaintiffs ultimately pitched their case at the level of a more expanded duty, not necessarily anchored in, or constrained by, the six month time limitation period in any hard and fast way. Assuming the existence or breach of this more expanded duty, it may quite plausibly be contended that the postulated breach of duty continued to have some impact even beyond the six month time period. Indeed, I understand counsel for the appellants, quite properly, to have conceded as much in the course of oral argument. It could not be said in this scenario that the executors were free to distribute without notice in any event prior to the date that the proceedings were ultimately brought.
For these reasons, I prefer not to rest my conclusion that summary judgment should be ordered on the additional or alternative ground of causation. Rather I rest that conclusion on the grounds identified earlier in these reasons.
Conclusion
For the reasons I have given, there is no reasonable basis for any of the plaintiffs’ claims. The primary judge was correct to dismiss those claims and enter summary judgment in the defendants’ favour. I would therefore dismiss the appeal.