Green v Ellul - [2018] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
GREEN & ANOR v ELLUL & ORS
[2018] SASCFC 100
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)
26 September 2018
SUCCESSION - FAMILY PROVISION - APPEALS
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME - APPLICATION TO BE BEFORE FINAL DISTRIBUTION
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
Appeal from the decision of a Master of the Supreme Court on the determination of preliminary issues in an application for provision under the Inheritance (Family Provision) Act 1972 (SA) (the Act).
Section 8(1) of the Act provides a limitation period of six months for the commencement of proceedings claiming the benefit of the Act. Section 8(5) of the Act provides that any distribution of any part of an estate made before an application for an extension of time shall not be disturbed pursuant to an application for the benefit of the Act.
On 10 July 2017, the plaintiffs filed a summons seeking provision out of the deceased estate pursuant to the Act. On 13 July 2017, those proceedings were served on the solicitor for the defendants one day outside the limitation period for the commencement of the proceedings provided for in s 8(1) of the Act. The summons did not expressly include an application for an extension of time within which to bring the claim. Knowing that proceedings had been served outside the limitation period, the defendants in their capacity as executors distributed the estate, except for $5,023.46 which remained in their solicitor’s trust account. On 18 September 2017, the plaintiffs filed an amended second summons expressly including an application for an extension of time.
A Master of the Supreme Court held the summons filed on 10 July 2017 and served on 13 July 2017 was an “application for extension of time”; 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 extension of time”; and no part of the estate was distributed before any application for an extension of time.
The defendants appealed from the decision of the master to the Full Court.
Held (per Stanley J, Kourakis CJ and Lovell J agreeing): Appeal allowed.
1. The summons filed on 10 July 2017 and served on 13 July 2017 was not an “application for extension of time” within the meaning of subsections 8(4) and 8(5) of the Act.
2. It is unnecessary to answer the question whether 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 extension of time” within the meaning of those provisions.
3. The summons filed on 10 July 2017 did not convey to the appellants that the respondents made an application for an extension of time under the Act.
4. All of the estate was distributed before any application for an extension of time, but for the $5,023.46.
Inheritance (Family Provision) Act 1972 (SA) s 7, s 8, s 17; Supreme Court Rules 2006 (SA) s 45, s 30, s 34, s 38, s 91, s 96, s 99, s 131, referred to.
Miller v Miller [2018] SASCFC 40; Brooks & Anor v Young & Ors [2018] SASCFC 81, considered.

GREEN & ANOR v ELLUL & ORS
[2018] SASCFC 100
Full Court: Kourakis CJ, Stanley and Lovell JJ

KOURAKIS CJ: I agree that the appeal should be allowed and join in the orders proposed by Stanley J for the reasons given by his Honour. I add the following observations.
The meaning of the word ‘application’ must be determined on a proper construction of s 8(5) of the Inheritance (Family Provision) Act 1972 (SA) (the Act). Parliament must be taken to have enacted s 8(5) of the Act in contemplation of the general procedures and rules of the Court, because it provided by s 17 of the Act that the Court may make specific rules with respect to such applications and that, in the absence of those rules, the Court’s general rules apply. Even though the Rules of this Court[1] cannot determine whether or not a proceeding falls within the meaning of the words ‘application for an extension of time’ in s 8(5) of the Act, the proper construction of that phrase is informed by the nature of proceedings in the Supreme Court and the requirements of its Rules.
[1] Supreme Court Probate Rules 2015 (SA); Supreme Court Civil Rules 2006 (SA); Supreme Court Supplementary Civil Rules 2014 (SA).
Strict compliance with the Rules may not be required but the minimum requirements of an application for an extension of time may readily be identified. First, an application pursuant to s 8(5) of the Act must be in writing. True it is that the Rules of this Court allow, in exceptional circumstances, an oral application to be made.[2] However, such is the nature of the application and its consequences on any subsequent distributions made out of the estate, that Parliament could not have intended applications for an extension of time, pursuant to s 8(5), to be made orally.
[2] Supreme Court Civil Rules 2006 (SA), r 131.
Secondly, it is in the very nature of an application to a court that it specify the relief sought and the Rules of this Court require just that. True it is that proceedings may be amended to seek relief in addition to, or in substitution of, the relief sought when the application is first made. However, an application is not one made for an extension of time unless and until it seeks an extension of time.
Thirdly, the orders applied for must be apparent from the text of the application alone and not from the circumstances in which it is made. The nature of an application cannot be determined by what the party, or parties, on whom it is served might reasonably anticipate the applicant seeks, or may later seek. The application must appear on its face to be an application for an extension of time. The application must also speak to the Court. As I earlier observed, s 17 of the Act empowers this Court to make rules governing applications made pursuant to s 8, including applications for an extension of time. For example, Rules may be made for the urgent or special listing of applications for extensions of time, or as to the form which the application must take before it is accepted for filing. It is, therefore, necessary for the Court and, in particular, its Registrar and his or her officers, to be able to recognise an application as one for an extension of time from its contents. The officers of the Court will have no knowledge of what has passed between the parties or of the surrounding circumstances in which an application is filed.
Accordingly, the respondent’s application does not meet the minimum requirements of an application for an extension of time within the meaning of that phrase in s 8(5) of the Act.
STANLEY J:
Introduction
This is an appeal from the decision of a Master of this Court on the determination of preliminary issues in an application for provision under the Inheritance (Family Provision) Act 1972 (SA) (the Act).
In order to understand the basis of the master’s decision and the appeal, it is necessary to set out the background to the application for the benefit of the Act.
Background
Mary Ellul (the deceased) died on 18 September 2016. Her last will was made on 4 February 2011. Probate of the will was granted on 12 January 2017 to her executors, Joan Annette Green and Josephine Mary Tommasini (the appellants) who are the defendants to the application pursuant to the Act.
The deceased had seven children, including the appellants, six of whom were living at the time of her death. By her will, she left a cash legacy of $1,000 to four of those children. She left the residue of her estate (after the payment of funeral and testamentary expenses) to the appellants. 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 respondents’ solicitor put the appellants on notice of the potential of a claim by the respondents. The respondents are three of the four children of the deceased who have each been left a cash legacy of $1,000 in the deceased’s will. The remaining beneficiary under the will, Anthony Ellul, a son of the deceased, who also received a legacy of $1,000, is not a party to the application for the benefit of the Act.
On 20 June 2017 the appellants’ solicitor advised the respondents’ solicitor that he had instructions to accept service on their behalf.
On 10 July 2017 the respondents issued proceedings pursuant to s 7 of the Act. The respondents filed a summons seeking provision out of the deceased estate pursuant to the Act and three supporting affidavits from each of the respondents. Those proceedings were served on the solicitor for the appellants on 13 July 2017, one day outside the limitation period for the commencement of the proceedings provided for in s 8(1) of the Act. The summons did not expressly include an application for an extension of time within which to bring the claim.
The summons sought the following relief:
1.   The plaintiffs be entitled to such provisions as this Honourable Court deems fit out of the estate of Mary Ellul, deceased.
2.   The costs of and incidental to this application be paid out of the estate of Mary Ellul, deceased.
3.   Such further or other orders as this Honourable Court deems fit.
The significance of the application for an extension of time is to be found in s 8(5) of the Act which provides that any distribution of any part of an estate made before an application for an extension of time shall not be disturbed pursuant to an application for the benefit of the Act.
Between 14 July 2017 and 26 July 2017, in their capacity as executors, the appellants, through their solicitor, took the following steps:
1.They caused a transmission application to be lodged on their behalf at the Lands Titles Office (LTO) in respect of the Daw Park property;
2.They caused cheques each in the sum of $1,000 to be drawn in favour of each of the beneficiaries entitled to such legacy under the will;
3.They caused to be transferred to each of themselves as residuary beneficiaries the sum of $11,387.79; and
4.They caused an amount of $10,000 to be transferred to their solicitor’s trust account in relation to their estate dispute file to meet costs and disbursements. Of that $10,000 an amount of $4,976.54 was later transferred to pay costs and disbursements.
On 26 July 2017, the transfer was registered at the LTO.
The appellants accept that at the time that they instructed their solicitor to take these steps, both they and their solicitor were aware of the service of the respondents’ proceedings on 13 July 2017.
On 28 July 2017, the respondents served on the appellants’ solicitor an interlocutory application seeking an extension of time within which to commence the proceedings. Ultimately this application was not pursued.
On 31 July 2017, the appellants’ solicitor wrote to the respondents’ solicitor and advised that the final distribution of the estate had occurred and that the respondents’ proceedings had been commenced out of time. He invited the respondents to discontinue their claim.
Contrary to the assertion in the letter from the appellants’ solicitor, final distribution had not occurred. The amount left undistributed is the sum of $5,023.46. At the time of the hearing before the master that sum remained in the appellants’ solicitor’s trust account.
On 18 September 2017 the respondents filed an amended second summons, pursuant to rule (SCR) 54 of the Supreme Court Civil Rules 2006 (SA) (Supreme Court Rules), expressly seeking an extension of time.
Before the master the respondents took the position that an application for an extension of time was effectively made on 13 July 2017, prior to the distribution of the majority of the estate. This occurred either by the filing and service of the respondents’ summons on 13 July 2017, in that the summons itself amounted to an application for an extension of time despite not containing those words, or by the filing of the amended summons on 18 September 2017, in which the order was expressly sought, on the basis that such an amendment took effect from the date of the original filing of the summons in accordance with the relation back doctrine.
In those circumstances the master was asked to decide the following questions:
1.Whether the summons filed on 10 July 2017 and served on 13 July 2017 was an “application for extension of time” within the meaning of subsections 8(4) and 8(5) of the Act.
2.Whether the amendment to the summons by way of filing a second summons on 18 September 2017 had the effect of making a summons filed on 10 July 2017 and served on 13 July 2017 an “application for extension of time” within the meaning of those provisions.
3.Whether the summons filed on 10 July 2017 conveyed to the appellants that the respondents made an application for an extension of time under the Act.
4.Whether any part of the estate was distributed before any application for an extension of time within the meaning of subsection 8(5) of the Act.
The master’s decision
There are two limbs to the master’s reasons.
First, the master held that the summons was, in fact, an application for an extension of time within the meaning of s 8 notwithstanding the absence of an express plea seeking an extension. The master correctly identified the Act as remedial legislation. From that premise, she proceeded to reason that to decline to imply that the summons included an application for an extension of time would result in the summons being rendered otiose. This conclusion would fail to give the most complete remedy which the phraseology of the Act permits. In the circumstances, the master considered that the purpose of s 8(4) and (5) was fulfilled. The executors received notice, not just that a claim was contemplated, but that one had been filed and served. To require a specific plea for an extension of time, in circumstances where the claim would be rendered pointless without it, would be to detract from the remedial purpose of the Act. Given the Act does not prescribe a method for seeking an extension of time, a beneficial reading of the Act permits an application for an extension of time to be brought by the simple making of the claim out of time.
Second, in any event, the operation of SCR 54 gives retrospective effect to the second summons filed on 18 September 2017 by which an additional prayer for relief i.e., an order for an extension of time, was sought. As a result the same cause of action sought in the first summons is relied on in the second summons. The second summons simply acknowledges expressly that an extension of time is required. In circumstances where the Act does not specify how an application for an extension of time is to be made, the facts as pleaded in the supporting affidavits, filed in lieu of a statement of claim, made it clear that the application for provision was made on the basis of a grant of probate made on 12 January 2017. The master reasoned that it was obvious that any application made more than six months after this date required an extension of time. Accordingly, the retrospective operation of the amendment should be allowed, so that the amendment effected by the second summons would relate back to the date of the service of the first summons and operate from 13 July 2017.
On that basis the master answered the questions as follows:
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.Not answered. 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 (appellants).
4.No part of the estate was distributed before any application for an extension of time.
Submissions on appeal
The appellants submit that the master erred in concluding that the Act does not require an extension of time to be expressly sought, and does not prescribe any particular method for seeking it. They contend s 17 of the Act requires compliance with the rules of the Court as regards practice and procedure and the applicable rules require that the jurisdiction of the Court to extend time be invoked by the filing of an application expressly seeking an extension of time. Where the summons has been served out of time the Court is prohibited from exercising its jurisdiction pursuant to s 7 of the Act unless an extension of time is granted. A consideration of the summons filed on 10 July 2017, which was within the time limit prescribed by the Act, excludes any argument that the form of the summons includes an application for an extension of time. No basis can be found in the text or context for the implication of such an application. Any such implication is inconsistent with the scheme of the Act and s 17. Further, SCR 54 cannot operate inconsistently with the Act with the result that beneficiaries be required to disgorge distributed assets contrary to s 8(5). Accordingly, even if there was scope for the operation of SCR 54 it should have been disallowed.
The respondents submit none of the provisions of the Act prohibit or prevent the summons filed on 10 July 2017 from falling within the meaning of “an application for extension of time”. The very terms of the summons make clear that all necessary relief was sought as from the time of filing. Section 17 of the Act does not prohibit the original summons from being an application for an extension of time within the meaning of s 8. It merely provides that the question is to be determined in accordance with the rules of the Court. The Supreme Court Rules do not require that an application for an extension of time be brought in any particular manner or expressed in any particular form. In this case the summons sought provision under the Act and included, in paragraph 3, a broad plea for relief seeking such further or other orders as the Court deems fit. The master correctly found that this plea necessarily implied an application for an extension of time in circumstances where the application for provision under the Act was served on 13 July 2017 and made on the basis of a grant of probate on 12 January 2017.
The respondents further submit, that in any event, SCR 223 permits the Court to make an order granting an extension of time. SCR 223 provides that the Court may, in an appropriate case, give judgment for a form of relief that differs from the kind of relief sought by the plaintiff. Accordingly, the master’s reasons, far from being inconsistent with s 17, are supported by it. The combined effect of the plea in paragraph 3 of the summons and SCR 223 is that the respondents sought all such relief as was necessary to vindicate their claims. Once the limitation period for service expired this included the need for an extension of time under s 8(2).
On the hearing of the appeal the respondents did not seek to uphold the master’s decision on the basis of the relating back of the amendment contained in the second summons pursuant to SCR 54. Accordingly, it is unnecessary to address that alternative basis for finding that the respondents had made an application for an extension of time.
Relevant provisions of the Act

Section 7 of the Act provides:
(1) Where—
(a) a person has died domiciled in the State or owning real or personal property in the State; and
(b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life, the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
(2) Notice of an application under subsection (1) of this section shall be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct.
(3) The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.
(4) The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit.
(5) If, in respect of an application under subsection (1) of this section, it appears to the Court that the matter would be more appropriately determined by proceedings outside the State, the Court may (without limiting the powers conferred on it by the preceding provisions of this section) refuse to make an order under this section or adjourn the hearing of the application for such period as the Court thinks fit.
(6) In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments.
Section 8 of the Act provides:
(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)     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.
Section 17 of the Act provides:
(1) The judges of the Court may, subject to and in accordance with the Supreme Court Act 1935 as amended, make such rules as may be necessary or expedient for regulating the practice and procedure of the Court to be adopted for the purposes of this Act.
(2) Until rules are made in pursuance of this section the general practice and procedure of the Court shall, so far as applicable and not inconsistent with this Act, apply to all proceedings of the Court under this Act.
Pursuant to s 17(1) the Court has made SCR 314 to 317 which provide for applications pursuant to the Act. However, except for SCR 314(2), those rules are irrelevant to the disposition of this appeal. No rule has been made in relation to an application to extend time pursuant to s 8. Accordingly, this appeal is to be decided by reference to the Court’s rules governing general practice and procedure in accordance with the terms of s 17(2) of the Act.[3]
Relevant provision of the Supreme Court Rules
[3] Miller v Miller [2018] SASCFC 40 at [10] and [102].
SCR 30(3) provides:
(3) A claim is based on a cause of action (that is, some basis in law and fact on which the plaintiff asks the Court for a remedy).
SCR 34 provides:
(1)     A primary action is commenced by filing primary originating process in the Court.
(2)Except where a different form of process is prescribed by a rule, primary originating process is to be in the form of a summons.
(3)     A summons is to be in an approved form.
(4)     This rule applies to the exclusion of an inconsistent statutory rule.
SCR 38 provides:
(1) Originating process in an approved form is to be used in place of any other form of originating process prescribed by law.
(2) Subrule (1) applies despite any statutory rule to the contrary.
(3) Originating process must bear the following endorsements—
(a) any endorsement required by statute or these Rules;
Examples—
1 If an extension of time to bring the action is sought under section 48 of the Limitation of Actions Act 1936, the originating process must contain the endorsement required under section 48(4) of that Act.
…
…
(4) Every person whose interests may be directly and adversely affected by the terms of a judgment, and whose presence before the Court is required for a judgment to be entered in those terms, is to be made a defendant to the originating process.
SCR 91(1) provides:
(1) Originating process for a primary or secondary action must include, or be accompanied by, a statement of the plaintiff's claim.
Note—
It may be appropriate in some cases for the statement of the plaintiff's claim to be made by way of affidavit (see rule 96).
…
SCR 96(1) provides:
(1) An affidavit is, subject to this rule, an acceptable substitute for a pleading.
…
SCR 96(5) provides:
(5) Unless the contrary intention appears, when an action is proceeding on affidavits in lieu of pleadings under this rule, a reference in these Rules and in the Supplementary Rules to—
(a) “pleadings” is to be taken to include affidavits in lieu of pleadings;
(b) “statement of claim” is to be taken to include an affidavit in lieu of statement of claim;
…
SCR 99(1)(d) provides:
(1) A statement of claim—
…
(d) must state any remedy for which the plaintiff asks;
…
SCR 99(1)(e) provides:
(e) if the plaintiff seeks an ancillary remedy (such as an extension of a period of limitation or a temporary injunction)—must state the nature of the remedy and the basis on which it is sought.
SCR 131 provides:
(1) An interlocutory application is to be in an approved form.
…
(4) The Court may, on conditions the Court considers appropriate, dispense with requirements of this rule—
(a)     if the urgency of the case so requires; or
(b)     by consent of the parties; or
(c)     if for any other reason the Court considers it appropriate to do so.
Example—
The Court might permit a party to make an interlocutory application orally without written notice to the other parties if it considers the application appropriate in the circumstances of the case.
…
Consideration
In my view the master erred in concluding an application for an extension of time had been made for three reasons. First, the scheme of the Act requires that an application for an extension of time is discrete from an application for the benefit of the Act. Second, the terms of s 17 of the Act require an application for an extension of time to be made in accordance with the general practice and procedure prescribed by the Supreme Court Rules. The rules require an express application for an extension of time. Third, the terms of the summons in this matter do not give rise to an implication that an application for an extension of time is being made.
Consideration of the terms of s 8 of the Act evince a legislative intention that the application for the benefit of the Act and an application for an extension of time within which to make an application are discrete and separate applications. The scheme of the Act provides for the making of an application for the benefit of the Act pursuant to s 7. Section 8(1) is a provision of limitation. It precludes the Court from hearing an application pursuant to s 7 unless the application is made within six months from the date of the grant of probate. Section 8(6) provides that an application for the benefit of the Act is deemed to be made on the day when the summons by which it is instituted is served on the administrator of the deceased person’s estate. Section 8(2) empowers the Court to extend the time for making an application for the benefit of the Act. Section 8(3) provides that an extension of time may be granted upon conditions and whether or not the time for making an application pursuant to s 8(1) has expired. Section 8(4) requires the application for extension of time to be made before the final distribution of the estate. Section 8(5) provides that 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.
Pursuant to s 8, where the summons by which the application for the benefit of the Act is instituted is served out of time, the Court is prohibited from exercising the jurisdiction conferred by s 7 of the Act unless an application for an extension of time is made. The Court can only make an order extending the time for making an application for the benefit of the Act where an application for an extension of time is made to it. This was explained in Brooks & Anor v Young & Ors[4] where Doyle J, with whom Kelly and Bampton JJ agreed, said in relation to the operation of the Act:[5]
[4] [2018] SASCFC 81.
[5] [2018] SASCFC 81 at [63]-[66].
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, as confirmed in respect of the IFP Act in Blunden v Blunden and Broadhead v Prescott. 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. 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.
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.
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. 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”. Certainly this means that the distributions cannot be set aside. 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.
[Citations omitted].
The scheme of the Act enshrined in s 7 and s 8 does not preclude the making of an application for an extension of time as part of the summons by which the application for the benefit of the Act is instituted. Nonetheless, the scheme emphasises that the application for the benefit of the Act and the application for an extension of time within which to bring an application for the benefit of the Act, are different applications. This tells against the respondents’ submission that the summons applying for the benefit of the Act constitutes an application for an extension of time absent any express reference in the summons to such an application for an extension.
Section 17(1) of the Act, as I have already indicated, empowers the Court to make rules “necessary or expedient to regulate the practice and procedure of the Court to be adopted for the purposes of [the] Act”. With one minor exception, the rules made in accordance with s 17(1) are not material to the disposition of this appeal. Section 17(2) provides that until such rules are made “the general practice and procedure of the Court shall, so far as applicable, and not inconsistent with this Act, apply to all proceedings of the Court under [the] Act”.
The general rules of Court governing practice and procedure require an application for an extension of time to be made either by an originating process pursuant to SCR 34 or an interlocutory application pursuant to SCR 131.
In this case, the respondents did not proceed with an interlocutory application seeking an extension of time.
The summons which sought to invoke the Court’s jurisdiction to make orders for the benefit of the Act was required to be in an approved form, in accordance with SCR 34(1). The approved form is Form 4.[6] That form requires the details of the claim and the relief sought to be contained in an “accompanying statement of claim/affidavit”, with an endorsement identifying the section of the Act or the rule pursuant to which the summons is issued, and a statement of the orders sought.
[6] Supreme Court (Civil) Supplementary Rules 2014 (SA) r 35(1).
These provisions of the rules relevant to the form of the summons are reinforced by SCR 99(1) which requires that, where an extension of time is sought, the statement of claim must seek such an order in express terms. The summons made no reference to s 8 of the Act, pursuant to which the Court is conferred with power to grant an extension of time. Further, the submission that an application for an extension of time can be implied by the fact of the summons making an application for the benefit of the Act is inconsistent with the conditions prescribed by s 8 for extending the time within which to make such an application.[7] Acceptance of the submission that the Act is remedial does not alter the procedural limitations imposed by s 8 on the exercise of the Court’s jurisdiction. The scheme of the Act constrains the exercise by the Court of its statutory jurisdiction to interfere with the testamentary intentions of the deceased. The result is that the Act does not interfere with the obligation of the executor to get in and distribute the estate. Accordingly, a claim for the benefit of the Act cannot be heard unless it is made within six months of the grant of probate. The Act prescribes that the claim is deemed to be made when the summons by which it is instituted is served on the executors.
[7] Miller v Miller [2018] SASCFC 40 at [22].
The Act permits an application for an extension of time which can be made either before or after the expiry of the limitation period. If the latter, it must be made before a final distribution of the estate and any distribution made before the application for an extension of time cannot be disturbed. The finality of distributions made before any application for an extension of time makes it imperative that executors be in no doubt as to whether an application for an extension of time has, or has not, been made. The existence or otherwise of an application for an extension of time pursuant to s 8 is of critical importance to executors in the discharge of the duties of their office. If the application for the benefit of the Act is out of time, but no application for an extension of time has been made, the executor has a duty to distribute. This is especially so where a distribution to a beneficiary before an application for an extension of time ensures that the distribution will not be disturbed. The beneficiary is entitled to hold the executor to account if the executor fails to discharge that duty and the undistributed estate becomes subject to a claim under the Act by reason of the making of an application for an extension of time before distribution. The fact of the making of an application for an extension of time must be beyond dispute. This is a cogent consideration against the implication of an application for an extension of time by the service of a summons invoking the Court’s jurisdiction pursuant to the Act in the absence of any express application for an extension of time.
Even if, contrary to these reasons, it is possible to imply an application for an extension of time, no basis exists for such an implication to arise in the circumstances of this matter. The respondents rely upon the words in paragraph 3 of the prayer for relief in the summons, namely: “Such further or other orders as this Honourable Court deems fit”. No implication that an application for an extension of time is being made can arise from the terms of this prayer for relief. An application for an extension of time necessarily is made by the person or persons seeking to invoke the Court’s jurisdiction conferred by the Act. A prayer that the Court grant such other relief, that the applicant who seeks to invoke the Court’s jurisdiction, has not sought, cannot imply an application for an extension of time by the person seeking to invoke the Court’s jurisdiction.

For similar reasons, I reject the submission which relies on the operation of SCR 223. The rule cannot rectify a deficiency in the originating process due to a failure to apply for an application for extension. It does not address the nature of the relief sought by the applicant. Rather, it empowers the Court to grant relief that differs from the relief sought by the plaintiff. It cannot imply an application for an extension of time.
Further, SCR 314(2) provides that the application for the benefit of the Act begins by the filing of an initiating process with an affidavit of the claimant. In this case the supporting affidavits of the respondents did not refer to any grounds for making an order for an extension of time or state any facts relevant to such an order. In these circumstances there is no basis for an implication to arise that the summons contained an application for an extension of time. In addition, the summons and supporting affidavits were filed within time. They could have been served within time in which case no application for an extension of time would have been required. In those circumstances, the case for implying an application for an extension of time from the terms of the summons is weak. The service of the summons on the appellant did not transmogrify the summons, which merely sought to invoke the Court’s intervention pursuant to s 7 of the Act, into something more, namely, an application for an extension of time, without reference to such an application.
This case again serves as a reminder to solicitors acting for claimants under the Act to ensure that applications for the benefit of the Act are filed and served within the limitation period prescribed by s 8. In addition, solicitors should remember that s 8(3)(b) permits an application for an extension of time under the Act to be made prior to the expiry of the prescribed limitation period.
Conclusion
I would allow the appeal. I would set aside the answers given by the master to the questions posed by the parties. I would answer the questions as follows:
1.No.
2.Unnecessary to answer.
3.No.
4.Yes, all but $5,023.46.
LOVELL J: I agree with Stanley J and with the additional remarks of Kourakis CJ.