In the Estate of LOUIS MATTHEWS (DECEASED) - [2015] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of LOUIS MATTHEWS (DECEASED)
[2015] SASC 112
Reasons for Decision of The Honourable Justice Gray
5 August 2015
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS
SUCCESSION - FAMILY PROVISION - PROCEDURE - GENERALLY
Application to combine proceedings in the civil and testamentary causes jurisdictions. The deceased died on 13 April 2014, leaving a will dated 24 January 2014. Probate in respect of that will was granted on 9 January 2015. The deceased's mother sought to commence proceedings for an order pronouncing against the validity of the will and an order revoking the grant of probate. She sought to combine this probate action with a claim in the alternative, being a civil claim for provision pursuant to the Inheritance (Family Provision) Act 1972 (SA).
Whether a civil claim can be brought in the same proceedings as a probate claim. Whether this Court should depart from the decision of Williams J in The Estate of Jolliffe Deceased.
Held (allowing the application):
1. The Estate of Jolliffe Deceased was decided without reference to section 27 of the Supreme Court Act 1935 (SA).
2. The basic proposition is that probate actions should be managed separately and governed by different rules and procedures than civil actions.
3. In cases such as this, where there is a significant risk of multiplicity of proceedings, the separation of the jurisdictions must give way to section 27.
4. The Registrar of Probates is to accept the combined proceedings.
Inheritance (Family Provisions) Act 1972 (SA); Supreme Court Act 1935 (SA) s 27; Supreme Court Civil Rules 2006 (SA) rule 20; Supreme Court Act 1970 (NSW) s 63, referred to.
The Estate of Jolliffe Deceased (unreported judgment, Supreme Court of South Australia, Williams J, 22 April 1998), not followed.
Rasheed v Rasheed (1999) 73 SASR 346; Mavrideros v Mach (unreported judgment, Supreme Court of New South Wales, Young J, 16 June 1997); Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286; Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, considered.

In the Estate of LOUIS MATTHEWS (DECEASED)
[2015] SASC 112
Testamentary Causes Jurisdiction
GRAY J.

This is an application for the combining of proceedings in the civil and testamentary causes jurisdictions of this Court.
The deceased, Louis Matthews, died on 13 April 2014. The deceased left a will dated 24 January 2014 and probate in respect of that will was granted on 9 January 2015. The deceased’s mother, Georgina Matthews, who is the plaintiff in this matter, seeks an order pronouncing against the validity of that will and an order revoking the grant. In the alternative, she seeks provision out of the estate pursuant to the Inheritance (Family Provision) Act 1972 (SA).
The Registrar of Probates referred this matter to me pursuant to rule 20(1) of the Supreme Court Civil Rules 2006 (SA). On 26 May 2015, I made an order directing the Registrar to accept proceedings for an action for revocation combined with a claim pursuant to the Inheritance Act. My reasons follow.
Background
The plaintiff proposes to commence an action for revocation of the grant of probate on grounds that the will was not duly executed, was made at a time when the deceased lack testamentary capacity and was not made with the knowledge and approval of the deceased. The effect of these proceedings, if successful, would be that the deceased would be declared as having died intestate. Actions of this nature proceed in the testamentary causes jurisdiction of this Court. If the plaintiff is unsuccessful in her claim for revocation, she claims, in the alternative, an action for provision pursuant to the Inheritance Act. The alternative proceedings are, as a matter of course, commenced by summons in the civil jurisdiction of this Court.
The Registrar referred this matter to me as there is authority from this Court that general civil claims should not be combined with probate actions. In The Estate of Jolliffe Deceased,[1] Williams J directed the Registrar of Probates to refuse to issue proceedings combining a claim for a grant of probate in solemn form with claims for the sale of a property, the setting aside of inter vivos gifts and an accounting. Williams J remarked:
In my view the action in rem for a grant of probate should not be coupled in the same proceedings as general civil claims of the nature abovementioned.
The Rules and the practice of the Court subject probate matters to a unique regime to be supervised by the Registrar of Probates subject to a Judge’s directions (see Administration and Probate Act ss7 and 8).
I am satisfied that the Court should not entertain general civil claims within the ambit of probate proceedings. If some issue arises which is common to two or more proceedings there are adequate powers in the Court to bring forward that common matter for hearing whether arising in a Probate matter or otherwise.
[1] The Estate of Jolliffe Deceased (unreported judgment, Supreme Court of South Australia, Williams J, 22 April 1998).
The decision of Williams J was cited with approval in obiter dicta of Millhouse J in the Full Court decision of Rasheed v Rasheed.[2] That case concerned an appeal from a decision of a Master of this Court to strike out a combined claim for revocation of a grant of probate and a claim pursuant to the Inheritance Act. Millhouse J noted that the ratio decidendi for the Master’s decision was not clear and merely stated:[3]
Insofar as it is a claim for revocation of the Probate, it should not be encumbered with other action. Insofar as it is an action for revocation of the Probate, I consider that it should be struck out.
[2] Rasheed v Rasheed (1999) 73 SASR 346.
[3] Rasheed v Rasheed (1999) 73 SASR 346, 349.
On appeal, the Court held that the application for the revocation of the grant of probate should be dismissed; primarily due to matters related to the fact that there had been a delay of 11 years in bringing the proceedings. However, the Court allowed the claim for provision pursuant to the Inheritance Act. The issue of the claims being brought together at first instance fell away in light of this reasoning. However, in referring to The Estate of Jolliffe Deceased, Millhouse J said:[4]
The coupling of claims for revocation of probate and relief under the Inheritance (Family Provision) Act has been expressly disapproved by Williams J in his memorandum relating to The Estate of Jolliffe Deceased (22 April 1998). His reasons are cogent. I accept the force of what he has written and am happy to follow his view. Our brother Williams' decision was not published until three months after the summons in this action was taken out. Mr Neville Morcombe QC (with Mr Mark Pickhaver) for the appellants, told us that an application had been made to a master to amend the summons. The application was refused. Irrespective of anything else, the claims for the two distinct kinds of relief should not stand in the same proceedings.
Prior and Duggan JJ did not discuss the combining of actions for revocation of a grant of probate and claims pursuant to the Inheritance Act. As a consequence, the Full Court in Rasheed v Rasheed should not be understood to have adopted the reasoning of Williams J.
[4] Rasheed v Rasheed (1999) 73 SASR 346, 348.
The Application
Counsel for the plaintiff argued that the judgment of Williams J was per incuriam as his Honour did not consider the application in light of section 27 of the Supreme Court Act 1935 (SA). Section 27, which has not been amended since the commencement of the Act, provides:
The court in every cause or matter pending before it shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as it deems just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of every legal or equitable claim properly brought forward by them respectively, in such cause or matter, so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.
I note that none of the definitions of the terms in section 27 limit or exclude the operation of the section in respect of actions in the testamentary causes jurisdiction.
In my view, there is obvious logic to the basic proposition that probate actions should be managed separately and governed by different rules and procedures than civil actions. Probate actions are actions in rem. They require an initial determination of whether the testamentary document is valid followed by a determination of any interested parties. Any disputes as to provision must necessarily be consequent on this process. However, in cases such as this, where there is a significant risk of multiplicity of proceedings, the separation of the jurisdictions must give way to the terms of section 27.
In J N Taylor Holdings v Bond,[5] King CJ noted that in exercising the Court’s discretion to join a party to an action, the overriding principle, as embodied in section 27, is that multiplicity of proceedings is to be avoided. The High Court has described the corresponding provision in the Supreme Court Act 1970 (NSW) as imposing a “duty” on the Court.[6]
[5] J N Taylor Holdings v Bond (1993) 59 SASR 432, 442.
[6] Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286, 306-7, referring to Supreme Court Act 1970 (NSW) section 63.
When applying the New South Wales Supreme Court Act provision in Mavrideros v Mack,[7] Young J considered that it was appropriate for a court in equity to revoke a grant of probate. He held:[8]
When there is a commixed question, the division in which the proceedings are brought may deal with them. Alternatively, if it is thought that the procedure in the Probate Office to complete a grant needs to be put in motion, the Judge may transfer the proceedings to that division under s54 of the Supreme Court Act. Moreover the Judge may, if he thinks it appropriate, transfer only part of the proceedings to probate and retain in equity the matters which are properly in the Equity Division.
[7] Mavrideros v Mack (unreported judgment, Supreme Court of New South Wales, Young J, 16 June 1997).
[8] Mavrideros v Mack (unreported judgment, Supreme Court of New South Wales, Young J, 16 June 1997) [8].
Further, the Supreme Court of New South Wales has subsequently heard a combined action for revocation with an alternative claim for provision in Tobin v Ezekiel; Estate of Lily Ezekiel.[9]
[9] Tobin v Ezekiel; Estate of Lily Ezekiel (2011) 6 ASTLR 358.
Conclusion
In my view, it is appropriate, in the circumstances of this proceeding, for the claim for provision pursuant to the Inheritance Act to be joined with the action for revocation of the grant of probate. On this basis I directed the Registrar to receive the combined proceedings.
I note that the Court has a clear discretion to separate the proceedings should there be good reason to do so but at present it is preferable that the actions be heard together so that common issues may be determined in the one proceeding.