KELLY & KELLY

[2015] FCCA 801

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLY & KELLY [2015] FCCA 801

Catchwords:
FAMILY LAW – Property – application for property settlement – death of applicant – application by legal personal representative to be joined as a party – application to discontinue property application.

Legislation:

Family Law Act 1975 (Cth), s.79

Federal Circuit Court Rules 2001 r.11.01

Cases cited:
Strelys & Strelys & Lukaitis (Executor) (1988) 12 Fam LR 437; FLC 91-561

Applicant: MR KELLY

Respondent: MS KELLY

Intervener: KIM FIONA ROWLEY (EXECUTRIX)

File Number: SYC 1195 of 2013

Judgment of: Judge Scarlett

Hearing date: 4 March 2015

Date of Last Submission: 4 March 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

Applicant: No appearance

Solicitor for the Respondent: Mr Ross

Solicitors for the Respondent: Rowley & Ross Lawyers

ORDERS

1. THE COURT NOTES that the Applicant Husband died on 29 June 2014.

2. KIM FIONA ROWLEY as Executrix of the Will of the Husband is granted leave to be added to the proceeding as an Intervener.

3. The Intervener is granted leave to discontinue the Application for property settlement filed on 7 March 2013.

4. No order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Kelly & Kelly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1195 of 2013

MR KELLY

Applicant

And

MS KELLY

Respondent

And
KIM FIONA ROWLEY (EXECUTRIX)
Intervener

REASONS FOR JUDGMENT

Application

1. This is an Application by the person named as executrix of the will of the now deceased Applicant to be appointed as a party to the substantive proceedings for the purpose of bringing them to an end. Mr Kelly was the Applicant in an application for property settlement but died on (omitted) 2014.   

Background

1. The proceedings were commenced by the filing of an Application for property settlement on 7^th March 2013. The Wife filed a Response and supporting documents on 24^th April 2013.

2. On 20^th May 2013 the parties were directed to attend a Conciliation Conference with a Registrar to take place on 17^th July of that year. The Conference was adjourned to 9^th September 2013.

3. The proceedings between the parties did not settle at the Conciliation Conference and the Application was listed for final hearing on 21^st and 22^nd May 2014.

4. The parties were divorced by Order of this Court on 14^th November 2013.

5. The property Application did not proceed on 21^st May 2014 because the Husband’s solicitor had lost contact with his client. The solicitor told the Court that the Husband had been in hospital but had left hospital and his whereabouts were unknown.

6. On 20^th August 2014 the Court was informed that the Husband had died.

7. The Husband died on (omitted) 2014.

8. The Husband left a will dated 9^th November 2001 in which he left the whole of his estate to his then Wife, the Respondent, and appointed her as his Executrix.

9. The will went on to provide that Kim Fiona Rowley was to be appointed as the Husband’s Executrix if the Wife did not survive for a period of 30 days.

10. In the circumstances, it is inappropriate for the Respondent Wife to seek to act as Executrix.  

The present Application

1. Ms Rowley does not wish to apply for a grant of probate of the Husband’s will, as there are virtually no funds in the Husband’s estate. She wishes to be appointed as a party to the proceedings so that she may bring them to an end.

2. The Husband’s solicitor has withdrawn from the proceedings.

3. Mr Ross, who appears for both the Wife and Ms Rowley, has informed the Court that both the Executrix and the Wife wish to bring the proceedings to an end. The Husband had very few assets and the costs of an application for probate of the Husband’s will would virtually exhaust the Husband’s entire estate.

4. Mr Ross has referred the Court to the decision of the Full Court of the Family Court in Strelys & Strelys & Lukaitis (Executor)[1], which appears to be the only authority on this issue. He submits that the most expedient and least costly way to bring these proceedings to an end is to appoint the Executrix as a party to the proceedings under Rule 11.01 and then permit her to discontinue the Application.

Subsection 79(8) of the Family Law Act 1975

[1] (1988) 12 Fam LR 437; FLC 91-961

1. Subsection 79(8) of the Family Law Act 1975 (Cth) provides a procedure to be followed when a party to property proceedings dies before the proceedings are finalised:

   Where, before property settlement proceedings are completed, a party to the marriage dies:

   (a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

   (b)     if the court is of the opinion:

   (i)     that it would have made an order with respect to property if the deceased had not died; and

   (ii)   that it is still appropriate to make an order with respect to property;

   the court may make such order as it considers appropriate with respect to:

   (iii)   any of the property of the parties to the marriage or either of them; or

   (iv)   any of the vested property in relation to a bankrupt party to the marriage; and

   (c)an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

2. In the decision of Strelys & Strelys & (Lukaitis (Executor)[2], it was held by the majority (Simpson and Nygh JJ) that upon the death of a party to incomplete proceedings under s.79 of the Act the proceedings were, in effect, suspended pending the directions of the Court as to their future conduct or until a legal personal representative had been substituted as a party.

   [2] supra

Conclusions

1. In my view, it is open to the Court to add Ms Rowley as a party to the proceedings on the basis that she has been appointed as Executrix of the husband’s will, notwithstanding the fact that there has been no application for a grant of probate.

2. As it appears to be the wish of both the Executrix and the Wife that the proceedings should be brought to an end, I propose to grant leave to discontinue the Application for property settlement.

3. There is no application for costs.  

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 9 April 2015