Italiano v McPherson

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.