Burke v Public Trustee for the State of South Australia

The appeal concerned an application by Mrs Carolyn Burke to be joined as a party to proceedings initiated by the Public Trustee for the State of South Australia. The Public Trustee sought advice and direction regarding the construction of the last will of the deceased, Lady Badger, and the consequent distribution of her estate. Mr Richard Burke, the deceased's friend and executor of her will, had died prior to these proceedings. Mrs Burke, as Mr Burke's widow, asserted an interest in the estate, contending that Lady Badger had intended to leave her estate to Mr Burke due to his grave illness.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the primary judge erred in refusing Mrs Burke's application to be joined to the proceedings, and consequently, whether she had an arguable interest in the construction of Lady Badger's will and the distribution of her estate. A further issue arose regarding Mrs Burke's application to adduce fresh evidence on appeal, specifically an email sent by Mr Burke shortly after Lady Badger's death.

The Court considered the principles governing joinder in applications for advice and direction under section 69 of the *Administration and Probate Act 1919* (SA). It was noted that such applications are typically private and protective in nature, aimed at assisting the trustee in administering the estate. The Court found that Mrs Burke's asserted interest in the estate was speculative and lacked an evidential foundation, particularly concerning any communication from Lady Badger to Mr Burke that he was a beneficiary of a half-secret trust. The email sought to be adduced as fresh evidence was also deemed insufficient to establish an arguable basis for Mrs Burke's claim.

The appeal was dismissed. The Court concluded that the primary judge did not commit an appealable error in refusing Mrs Burke's joinder application, as she had not demonstrated a sufficient interest in the proceedings. Consideration of costs, both at first instance and on appeal, was deferred.