Krol v Australian Executor Trustees Ltd - [2010] SASC 302

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KROL & ANOR v AUSTRALIAN EXECUTOR TRUSTEES LTD & ANOR
[2010] SASC 302
Reasons of Judge Lunn a Master of the Supreme Court
25 October 2010
PROCEDURE
Action claiming provision under Inheritance (Family Provision) Act 1973 - application more than six months after Probate by non-party under s 8(7) of that Act to be joined as an additional plaintiff so that he could make his own claim - held joinder under s 8(7) did not require the applicant first to obtain an extension of time under s 8(2) of the Act - held in circumstances it was "just and expedient" under s 8(7) for joinder to be allowed.
Inheritance (Family Provision) Act 1973 s 1, s 8; Supreme Court Act 1981 s 27; Evidence Act 1929 s 67C; Supreme Court Civil Rules 2006 r 312; Testator's Family Maintenance Act 1918 (repealed), referred to.
Western v Male [2010] SASC 163; In Re Tiller; Gum v Tiller [1963] SASR 116, applied.

KROL & ANOR v AUSTRALIAN EXECUTOR TRUSTEES LTD & ANOR
[2010] SASC 302
JUDGE LUNN:
Reasons on application Ronald Hicks to be joined as a second plaintiff

The deceased Lorna Hicks (“the Deceased”) died on 30 May 2009. Probate over her Will was granted to the first defendant on 2 September 2009. The second defendant is the residuary beneficiary in her estate. For probate purposes the net estate was valued at $264,446.[1]
[1] This is subject to debt which was forgiven by the will which is mentioned below.
The second defendant and Ronald Hicks (“Ronald”) were children of the deceased. On 1 March 2010 the plaintiff instituted this action,[2] claiming additional provision for herself under the Inheritance (Family Provision) Act 1973 (“the Act”). The plaintiff elected to file a statement of claim. The second defendant has filed an affidavit in opposition to the claim, but not as yet a defence.
[2] This was two days before the six month period under s 8(1) of the Act, quoted below, expired.
At the initial status hearing on 5 May 2010 I directed the plaintiff to file her 6R 312(2) affidavit within 14 days and to serve the required notices on other potential claimants under the Act “ASAP”. That notice was posted to Ronald on 13 May 2010. On 18 June 2010 Ronald filed his own statement of claim pursuant to 6R 312(5) claiming additional provision for himself under the Act.[3] On the same day Ronald filed an application (FDN9) seeking an extension of time within which to make his claim under the Act and to be allowed to file a statement of claim in these proceedings:
[3] This was filed within the 28 day period allowed by 6R 312(5).
Rule 312 provides, inter alia:
(4)By no later than 14 days after the commencement of the action the claimant must serve on each of the other potential claimants by prepaid post sent to their last known addresses notice of the action and a statement in an…

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 Krol v Australian Executor Trustees Ltd

Details

AGLC: Krol v Australian Executor Trustees Ltd [2010] SASC 302
Case: [2010] SASC 302
Decision Date: 25 October 2010

CaseChat Overview and Summary

In the Supreme Court of South Australia, the case of Krol & Anor v Australian Executor Trustees Ltd & Anor [2010] SASC 302 involved a dispute over the inheritance of Lorna Hicks' estate. The plaintiffs, Krol and Ronald Hicks, sought additional provision for themselves under the Inheritance (Family Provision) Act 1973. The second defendant, who was the residuary beneficiary of the estate, opposed the claim, but the first defendant did not take part in the argument. The legal issues included whether the court could grant joinder of an additional claimant under s 8(7) of the Act without requiring the applicant to obtain an extension of time under s 8(2) and whether the criteria for an extension of time and for the joinder of an additional claimant under s 8(7) were the same. The court held that the criteria for an extension of time and for the joinder of an additional claimant under s 8(7) were not the same, and that it was not necessary for Ronald to obtain an extension of time under s 8(2) in order to be joined as an additional claimant under s 8(7) of the Act. The court also held that the discretion of the court under s 8(7) was broad and that the criteria for exercising that discretion were that it was "just and expedient". The court found that Ronald's claim was not so weak that it would be unjust for him to be allowed to pursue that claim in conjunction with the plaintiff's claim and that it was expedient that Ronald's claim should be dealt with in conjunction with that of the plaintiff. The court made orders disjoining Ronald as a second plaintiff and joining him as an additional plaintiff to the action. The case was reserved for a further directions hearing.

This decision is significant because it clarifies the scope of the court's discretion under s 8(7) of the Act to join additional claimants to existing proceedings brought within time. The decision also highlights the importance of considering the potential merits of a claim when exercising the court's discretion under s 8(7) of the Act. The decision is likely to be of interest to practitioners in the field of inheritance and estate planning law, as well as to those involved in the administration of estates.

Orders