Columbus v Efstathis - [2019] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
COLUMBUS v EFSTATHIS & ORS
[2019] SASC 149
Judgment of The Honourable Justice Stanley
20 August 2019
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - DUTY OF TESTATOR - OTHER APPLICANTS
SUCCESSION - FAMILY PROVISION - REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION
Application for joinder as a plaintiff to a claim under the Inheritance (Family Provision) Act 1972 (SA) (the Act) for benefit out of the estate of the late Eva Columbus (the deceased). The deceased died in 2014. The applicant is a granddaughter of the deceased. The applicant’s father, a beneficiary under the deceased’s will, died in 2015. The applicant was not a beneficiary under the deceased or her father’s will. The application is brought out of time.
In issue is whether the applicant has a moral claim on her deceased grandmother’s estate and whether the deceased has not made adequate provision for the applicant’s proper maintenance, education or advancement in life.
Held:
1. There is no reasonable prospect of the applicant establishing any moral obligation on the part of the deceased to have made provision for the applicant from her estate.
2. The applicant’s claim does not have a reasonable prospect of success.
3. The application for joinder as a plaintiff to the proceedings pursuant to s 8(7) of the Inheritance (Family Provision) Act 1972 (SA) is dismissed.
4. The application for an extension of time is refused.
5. The parties are to be heard as to costs.
Inheritance (Family Provision) Act 1972 (SA) s 7, s 8; Supreme Court Civil Rules 2006 (SA) r 314, referred to.
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275; Wall v Crane & Ors [2009] SASC 382, applied.
Delisio v Santoro [2002] SASC 65; Krol & Anor v Australian Executor Trustees Ltd & Anor [2010] SASC 302; Andre v Perpetual Trustees WA Ltd [2009] WASCA 14; Chapple v Wilcox (2014) 87 NSWLR 646; Simonetto & Anor v Dick (2014) 87 NSWLR 646, discussed.

COLUMBUS v EFSTATHIS & ORS
[2019] SASC 149
Civil
STANLEY J:
Introduction

In this matter the plaintiff has brought a claim pursuant to the Inheritance (Family Provision) Act 1972 (SA) (the Act) for an order that provision be made for his benefit out of the estate of the late Eva Columbus (the deceased). The applicant, Yiannoula Constantina Lisson, by interlocutory application, seeks to be joined as a claimant to the plaintiff’s action. The applicant also seeks an order that the time within which the application for joinder may be brought be extended. The application was made on 12 March 2019. The respondents to this application are the plaintiff and first to third defendants in the action. The plaintiff did not wish to be heard on the application.
Background
The applicant is a granddaughter of the deceased. The deceased died on 20 August 2014. The deceased was survived by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Columbus v Efstathis

Details

AGLC: Columbus v Efstathis [2019] SASC 149
Case: [2019] SASC 149
Decision Date: 20 August 2019

CaseChat Overview and Summary

In the matter of Columbus v Efstathis, the applicant, Yiannoula Constantina Lisson, sought to be joined as a claimant to proceedings brought by her uncle, the plaintiff, under the Inheritance (Family Provision) Act 1972 (SA). The plaintiff claimed an order that provision be made for his benefit from the estate of the late Eva Columbus, the applicant’s grandmother. The applicant also sought an extension of time to bring her application for joinder. The respondents, including the plaintiff, did not oppose the application for joinder but argued against the extension of time. The central issue for the court was whether the applicant had a reasonably arguable case for joinder and, if so, whether it was just and expedient to grant the application within the statutory time limits.

The court found that while the applicant had a close relationship with the deceased, there was insufficient evidence to establish that the deceased had a responsibility to provide for her in her will. The court noted that a grandparent generally does not have an obligation to provide for a grandchild in their testamentary disposition, and such an obligation typically rests with the child's parents. The applicant did not provide evidence of circumstances that would impose a special duty on the deceased, such as acting in loco parentis or providing substantial support. Consequently, the court concluded that the applicant's claim did not have a reasonable prospect of success.

The court further determined that the application for an extension of time should be refused. The delay in filing the application was due to the applicant’s ill health, but this did not establish a reasonably arguable case for the court to grant the extension. The court dismissed the application for joinder and refused the application for an extension of time. The court directed the parties to address the issue of costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In this matter the plaintiff has brought a claim pursuant to the Inheritance (Family Provision) Act 1972 (SA) (the Act) for an order that provision be made for his benefit out of the estate of the late Eva Columbus (the deceased). The applicant, Yiannoula Constantina Lisson, by interlocutory application, seeks to be joined as a claimant to the plaintiff’s action. The applicant also seeks an order that the time within which the application for joinder may be brought be extended. The application was made on 12 March 2019. The respondents to this application are the plaintiff and first to third defendants in the action. The plaintiff did not wish to be heard on the application.Background The applicant is a granddaughter of the deceased. The deceased died on 20 August 2014. The deceased was survived by three children, the first defendant, Olga Efstathis and the second defendant, Stephanie Columbus, and a son, Frederick Steven Columbus. Another son, John Constantine Columbus, died in 1993. The plaintiff is his son. On 26 June 2018 probate of the deceased’s last will dated 13 July 2011 was granted to the first and second defendants. At the date of her death, the deceased had a net estate of approximately $1.7 million substantially comprising a house property at West Beach and 99 ordinary shares in a private company she controlled, Columbus Enterprises Pty Ltd. At the date of the deceased’s death Columbus Enterprises Pty Ltd was the registered proprietor of three units being numbers 2, 3 and 6 in a block of units adjoining the residential property at West Beach. The deceased’s will provided, inter alia, that the residential property was to be given to the first and second defendants beneficially and the shares in Columbus Enterprises Pty Ltd were to be given to the first and second defendants as executors who were directed to cause the company to distribute unit 2 to the second defendant, unit 6 to the first defendant and unit 3 to Frederick. Frederick died on 24 December 2015. The evidence before the Court is that the value of those units now are $385,000 for unit 2 and $240,000 each for units 3 and 6. The third defendant is Frederick’s widow and the executor of his estate. She was joined to the action on 13 March 2019. The value of the residential real estate has increased to $1,475,000. The current net value of the deceased’s estate is not clear but may be in the vicinity of $2 million. The plaintiff commenced these proceedings on 5 December 2018. That was within the limitation period of six months from the date of the grant prescribed by s 8(1) of the Act. The application for joinder was filed on 12 March 2019. However, the accompanying statement of claim to be filed in accordance with r 314(5) of the Supreme Court Civil Rules 2006 (SA) (the Rules) was not filed until 8 April 2019. Section 8(7) of the Act provides:Where an application has been made for the benefit of this Act, the Court may, if satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application.

Evidence

Evidence Before The Court

In that case, White J found that a grandchild did have a valid moral claim on his grandfather’s bounty in circumstances where for various reasons, neither the child’s father nor mother could be relied upon to provide adequately for his proper maintenance, education and advancement in life.The applicant’s evidence The applicant was born in Brisbane on 16 October 1993. She has lived in Queensland all her life. She completed Year 12 and then undertook studies in early childhood care and business administration. Since leaving school, the applicant has worked at various times in childcare, retail and hospitality. She has two children by her marriage to Adrian Lisson. Her sons are six and three years of age. In the last financial year the applicant’s husband earned $49,000 as a machine operator. Due to ill health the applicant is not presently undertaking paid employment. The applicant and her husband purchased a house in September 2018 for $415,000. This was financed by a bank loan of $196,000 and a loan from the applicant’s mother for the balance of the purchase price and associated costs. The loan from the applicant’s mother is repayable upon any subsequent sale of the property. The applicant suffers from extensive health problems. It is unnecessary to set out the details save to note that during November and December 2018 she was diagnosed with a pineal cystic tumour of the brain which is surgically untreatable. The applicant deposes that the treatment of her condition and other health worries relating to her husband and children meant she was unable to concentrate on personal matters or contemplate any return to work. However, since she has received the diagnosis referred to above she has been able to move forward somewhat. Nonetheless she deposes that she is still hard pressed to concentrate on issues such as this litigation. The applicant further deposes to her reliance upon the support and assistance of her mother for the care of their children and for some financial assistance. The applicant deposes to a very close relationship with the deceased notwithstanding that she has always been resident in Queensland. She says that from the time she was born until her teenage years the deceased would come to Brisbane to stay with her and her parents on a regular basis. These visits would frequently last for a couple of months. She said that the visits were of such a regular nature that in building their house her father made specific provision for separate accommodation and a bathroom for the deceased. The applicant further deposes that while in later years, when her grandmother came to Brisbane she would tend to stay with the first defendant in Ipswich because of her need for personal domestic assistance, nonetheless the applicant would see her on a regular basis and would often spend school holidays with her aunt so that she could spend time with the deceased. The applicant says that her family would also go to Adelaide every year, either at Easter or at Christmas and would stay at the family house at West Beach. She says there were additional times when she would fly on her own to Adelaide to spend time with her grandmother. She says she spoke very regularly with the deceased by telephone.

Decision

Reasons for decision

In these circumstances it is unnecessary to determine the question of whether the extension of time sought should be granted. However, I would have refused the application for an extension of time on the basis of the absence of a reasonably arguable case.Conclusion I would dismiss the application for joinder pursuant to s 8(7) of the Act. I would refuse the application for an extension of time. I would hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

The applicant claims that her father, when he was younger, contributed to building up the assets of Columbus Enterprises Pty Ltd, both financially and by his physical exertions. This claim is also contested. Consideration The applicant submits that her claim is arguable and joinder of her claim to the current proceedings would not occasion any prejudice to the existing parties. Further, she contends that the period of delay in respect of which an extension of time is sought is not egregious. The delay is explained by her ill-health. She submits the joinder of her claim is not likely to extend the length of trial unduly. The applicant submits that her claim is based in the discrepancy between the provision made by the deceased in respect of her father compared to her aunts. She contends that by reason of her father’s contribution to the assets of Columbus Enterprises Pty Ltd and the nature of her relationship with the deceased, she has a legitimate moral claim on her bounty and, in these circumstances, the deceased has not made adequate provision for her proper maintenance, education and advancement in life. The first and second defendants oppose the application. They submit that the applicant should not be joined as a claimant to the proceedings as her claim is hopeless. Further, they submit that the applicant has not provided a reasonable explanation for her failure to bring the application within time. In my view, the indulgence sought by the applicant should be refused. Assuming the facts set out in the applicant’s affidavit will be proved, I consider that if the applicant was joined to the existing proceedings her claim would not enjoy a reasonable prospect of success. In accordance with Bowditch, as a general rule a grandparent does not have a responsibility to make provision for a grandchild in his or her testamentary disposition. That obligation rests on the parent of the child. Nor is a grandchild normally regarded as a natural object of the deceased’s testamentary recognition. The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. While a moral obligation may be created in a particular case by reason of the care and affection provided by a grandchild to her grandparent, there is no evidence of that in this case. At its highest the evidence goes no further than establishing the existence of a close and loving relationship between the applicant and her grandmother. There is no evidence that would support a finding of the kind identified in Bowditch, where a grandchild has lost her parents at an early age or where she was taken in by the grandmother in circumstances where the grandmother became in loco parentis, which would give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandmother. There is no evidence to support a finding that the deceased had come to assume, for some significant time in the applicant’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the applicant’s support and welfare, or else that the deceased had undertaken a continuing and substantial responsibility to support the applicant financially or emotionally.