Italiano v McPherson - [2021] ACTSC 214

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Italiano v McPherson
Citation:	[2021] ACTSC 214
Hearing Date:	31 August 2021
DecisionDate:	1 September 2021
Before:	Elkaim J
Decision:	See [20]
Catchwords:	CIVIL – Application – Application in Proceedings – Application to join party to proceedings – estate proceedings – application opposed – application granted
Legislation Cited:	Court Procedure Rules 2006 (ACT) r 220, 282 Family Provisions Act 1969 (ACT)
Cases Cited:	Boldi v Crozier [2015] NSWSC 2155
Parties:	Brahma Kumaris Centres for Spiritual Learning (Applicant) Maria Italiano ( Plaintiff) Anna McPherson ( Defendant)
Representation:	Counsel G Foster ( Applicant) B Gillies ( Plaintiff) A Doig (Defendant)
Solicitors Zali Burrows at Law ( Applicant) Symons Phillips Lawyers (Plaintiff) Tu’ulakitau McGuire ( Defendant)
File Number:	SC 474 of 2020

ELKAIM J:

The applicant is a charitable organisation. I will refer to it as BK. It is a beneficiary under the will of Mr Andrew Italiano.

The substantive proceedings are an application by the plaintiff for orders under the Family Provision Act 1969 (the FPA). The proceedings are due to go to mediation on 3 September 2021, and if not settled, to hearing on 13 September 2021.

The deceased died on 29 October 2019. His will was executed on 29 June 2017. There is a codicil to the will, dated 27 December 2017 in which the defendant is appointed the executor and trustee of the deceased’s estate. Probate of the will was granted on 6 July 2020. There is an Amended Grant of Probate made on 9 February 2021.

The defendant is the sister of the deceased. The plaintiff is the mother of the defendant and of the deceased. The plaintiff is not a beneficiary under the will.

Under the application before me today (filed on 23 August 2021) BK seeks to be joined to the proceedings pursuant to r 220 of the Court Procedures Rules 2006.

The application is supported by two affidavits of Ms Zali Burrows, affirmed on 2 June 2021 and 31 August 2021 respectively. Ms Burrows is the solicitor for the applicant.

The application is opposed by the plaintiff. The defendant submitted to the orders of the court.

Under r 220 the court may order that a person be joined to a proceeding if:

(a) the person ought to have been included as a party; or
(b)including the person as a party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding.

Sub-paragraph (b) is most relevant here.

In Boldi v Crozier [2015] NSWSC 2155, Brereton J (as he then was) concisely set out the principles to be applied in an application of this sort:

2.In proceedings under (NSW) Family Provision Act 1982 – and now (NSW) Succession Act 2006 – the proper defendant is the executor. Courts ordinarily discourage beneficiaries from defending the application [see Re Klease [1972] QWN 44; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503]. This is because it…

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 Italiano v McPherson

Details

AGLC: Italiano v McPherson [2021] ACTSC 214
Case: [2021] ACTSC 214
Decision Date

CaseChat Overview and Summary

The case of Italiano v McPherson, heard before Elkaim J in the Supreme Court of the Australian Capital Territory, involved an application by Brahma Kumaris Centres for Spiritual Learning (BK), a charitable organisation, to be joined as a party in ongoing estate proceedings. The substantive matter was an application by Maria Italiano, the mother of the deceased Andrew Italiano, for orders under the Family Provision Act 1969 (ACT). BK, being a major beneficiary under the deceased's will, sought to be included in the proceedings as a defendant. The primary legal issue was whether BK should be joined to the proceedings under r 220 of the Court Procedures Rules 2006 (ACT), considering that it was not originally a party to the estate proceedings.

Elkaim J, in granting the application, relied on the principles outlined in Boldi v Crozier [2015] NSWSC 2155, which establish that while typically only the executor should defend estate proceedings, there are circumstances where a beneficiary should be joined. These include cases where there is a conflict of interest between the executor and the beneficiary or where the beneficiary's substantial benefits under the will might be disturbed if a family provision order is made. BK's significant share of the estate and the potential for its interests to be affected by a family provision order were deemed sufficient grounds for its inclusion in the proceedings. The court also noted that BK had not acted promptly in seeking to join the proceedings and had not requested necessary information from the other parties.

The court ruled that BK should be joined as a party to facilitate the mediation and the subsequent hearing, ensuring that all relevant interests were represented. It was also ordered that each party bear its own costs for the application, given BK's delay and lack of communication with the other parties. The mediation and hearing dates were to be maintained unless exceptional circumstances arose.

Orders