SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ELLUL & ORS v GREEN & ANOR
[2018] SASC 49
Judgment of Judge Bochner a Master of the Supreme Court
13 April 2018
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME - GENERAL PRINCIPLES
When application for extension of time made - whether distribution occurred prior to an application for an extension of time.
Held
1. The summons filed on 10 July 2017 and served on 13 July 2017 was an application for an extension of time.
2. The amendment to the summons filed on 18 September 2017 had the effect of making the summons filed on 10 July 2017 an application for an extension of time.
3. Whether the summons was an application for an extension of time is an objective question and not to be answered by virtue of the understanding or belief of the defendants.
4. No part of the estate was distributed before any application for an extension of time.
Inheritance (Family Provision) Act 1972; Civil Aviation (Carrier’s Liability) Act 1959 (Cth), referred to.
Blunden v Blunden (2008) 258 LSJS 206; Waugh v Kippen (1986) 160 CLR 156; Bull v Attorney-General (NSW) (1913) 17 CLR 370; Adams v Lambert (2006) 228 CLR 409; Robinson v Robinson [2017] SASC 132; Yancic v Yancic [2010] SASC 335; Young v IOOF Australia Trustees Ltd (1995) 180 LSJS 302; Dawson v Fitch (2002) 84 SASR 20; Fitzgerald v Masters (1956) 95 CLR 420; Younan v Younan (No 2) [2015] VSC 549; Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2005) 223 CLR 251, considered.
ELLUL & ORS v GREEN & ANOR
[2018] SASC 49
Mary Ellul (the deceased) died on 18 September 2016. Probate of her will dated 4 February 2011 was granted on 12 January 2017 to Joan Annette Green and Josephine Mary Tommasini, the defendants in this matter, and daughters of the deceased.
The deceased had seven children, six of whom were living at the time of her death. By her will, she left a cash legacy of $1000 to four of those children. She left the residue of her estate (after the payment of funeral and testamentary expenses) to the defendants. In the statement of assets and liabilities lodged at the Probate Registry, the net value of the estate is estimated to be $282,884.73. The principal asset of the estate is an interest as the sole lessee of a property at Daw Park. The lease is due to expire on 19 December 2062. The property has an estimated value of $215,000.
On 10 April 2017, the plaintiffs’ solicitor put the defendants on notice of the potential of a claim by the plaintiffs. On 20 June 2017, the defendants’ solicitor advised the plaintiffs’ solicitor that he had instructions to accept service on their behalf.
On 10 July 2017, the plaintiffs (three of the deceased’s children who were left…
Continue reading Ellul v Green
Sign in free to access the full text
- AGLC
- Ellul v Green [2018] SASC 49
- Case
- [2018] SASC 49
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the summons filed by the plaintiffs on 10 July 2017 constituted an application for an extension of time under the Act and whether the plaintiffs were entitled to an extension of time to bring their claims. The court was also required to determine whether the defendants' application to dismiss the summons should be granted on the basis that the plaintiffs' claims were statute-barred.
In considering the matter, the court found that the summons filed by the plaintiffs on 10 July 2017, and served on 13 July 2017, did indeed amount to an application for an extension of time. The court adopted a beneficial interpretation of the Act and the documents filed by the plaintiffs, in light of the purpose of the legislation to provide a remedy for family members who have been left without reasonable provision for maintenance, education, or advancement in life. The court emphasised that the legislation is remedial in character and should be construed to give the most complete remedy which the phraseology will permit. In light of this, the court found that the plaintiffs' application should not be dismissed on the basis that it was statute-barred.
The court further found that the plaintiffs' claims were not statute-barred, as they had acted with reasonable diligence in bringing their claims. The court held that the plaintiffs had demonstrated that they had been unaware of the existence of the will until shortly before the grant of probate, and had acted promptly in seeking legal advice and filing their claims once they became aware of the will. The court also found that the plaintiffs had a reasonable excuse for the delay in bringing their claims, as they had been unaware of the existence of the will until shortly before the grant of probate.
In conclusion, the court dismissed the defendants' application to strike out the plaintiffs' claims and allowed the plaintiffs' application for an extension of time to bring their claims. The court found that the plaintiffs' claims were not statute-barred and that they had acted with reasonable diligence in bringing their claims. The court also found that the plaintiffs had a reasonable excuse for the delay in bringing their claims, as they had been unaware of the existence of the will until shortly before the grant of probate.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
As to the application of Rule 54, the defendants say that Rule 54(6)(b) applies, and as a result, permission of the Court is required to amend, as the amendment purports to add a cause of action that is statute barred. In the circumstances of this case, such leave should not be granted.ConsiderationDoes the summons filed on 10 July 2017 amount in itself to an application for an extension of time? I am of the view that in the circumstances of this case, the summons filed on 10 July 2017 and served on 13 July 2017 amounted to an application for an extension of time. A beneficial interpretation of the Act, and of the documents filed by the plaintiffs should be adopted, in light of the ill that the Act was introduced to remedy. At the Second Reading Speech of the Inheritance (Family Provision) Bill, on 29 February 1972, the attorney-general introduced the Bill in the following way:The general purpose of this legislation is to provide that, where a member of a deceased person’s family who has been left by the deceased, contrary to his legitimate expectation, without reasonable provision for maintenance, education or advancement in life, he may claim an allowance for those purposes out of the estate left by the deceased.[11][11] South Australia, Parliamentary Debates, House of Assembly, 29 February 1972, 3499-3500 (the Hon L J King, Attorney-General). In Young v IOOF Australia Trustees Ltd,[12] Lander J discussed the nature of the Act. He said:The policy of the legislation was identified and explained by Williams J, in Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 513."The Acts are remedial in character and `must be so construed as to give the most complete remedy which the phraseology will permit': Holmes v Permanent Trading Co of New South Wales Ltd (1932) 47 CLR 113 at 119. They are intended, at least partly, to service a public purpose by providing a means whereby indigent dependants of a testator who has left an estate sufficient to provide for their maintenance should not become a charge on the public purse. The right to make an application is created in the public interest and is not one that can be contracted out of: Dillon v Public Trustee of New Zealand [1941] AC 294; Liberman v Morris (1944) 69 CLR 69."The purpose of the legislation was explained by Barwick CJ, Mason and Murphy JJ in Easterbrook v Young (1977) 136 CLR 308 at 320: "The dominant purpose of this legislation is to enable the court, in a sense, to prevent the operation of the will according to its terms in an appropriate case. It is because the will is operating unduly or unjustly in relation to the testator's family that the court is empowered to order maintenance, its order operating as a codicil to change the terms of the will and have them operate in a way different to that expressed by the testator."The Court is obliged, of course, in the construction of the legislation not to strain the plain language of the statute. However, if there is an ambiguity, the statute should be construed beneficially so as to give the most appropriate and fullest benefit, having regard to the purposes of the legislation.[12] (1995) 180 LSJS 302.