Love v Williams

[2018] NSWSC 231

Supreme Court

New South Wales

Medium Neutral Citation:	Love v Williams [2018] NSWSC 231
Hearing dates:	27 February 2018
Date of orders:	27 February 2018
Decision date:	27 February 2018
Jurisdiction:	Equity
Before:	Parker J
Decision:	Orders made in accordance with the Short Minutes of Order as amended.
Catchwords:	CIVIL PROCEDURE – notice of motion – construction of will – scope of defined terms in will – UCPR r 6.24 – joinder of parties – UCPR r 7.6 – whether interested parties beneficiaries as per defined terms in will – large number of actual and potential beneficiaries – order for appointment of representatives for three “classes” of beneficiaries – UCPR r 7.12 – beneficiaries and claimants – order allowing plaintiff to join third defendant to proceedings without his consent
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Robert Neville Love (Plaintiff) Dennis Williams (Defendant)
Representation:	Counsel: AL Connolly (Plaintiff)   Solicitors: S+P Lawyers (Plaintiff)
File Number(s):	2017/201495
Publication restriction:	Nil

Judgment – EX TEMPORE

Revised and issued 8 March 2018

1. These proceedings concern the estate of the late Harold Frederick William Simmons who died in July 2016. Mr Simmons died at an advanced age. He had been married but his wife pre-deceased him and they had no children. Mr Simmons had seven siblings, some of whom pre-deceased him. Of those seven siblings, six themselves had children. Some of those children, although born as the biological children of Mr Simmons' siblings, were adopted out into other families. One of Mr Simmons' siblings also adopted a son in addition to her natural children. That son is Gregory Smith, the proposed third defendant.

2. By his will the deceased made provision for his siblings and their descendants to benefit from his estate. Part of the estate is to be held on trust in accordance with the terms of the will and will not vest until 79 years after the date of the deceased's death.

3. The will defines the deceased's Beneficiaries in the following terms:

"my Beneficiaries"   means:

(a)   my brothers and sisters who survive me by 30 days;

(b)   the issue of my brothers and sisters.

“issue"         means the direct lineal descendants of any person.

4. A question has arisen as to whether, under the terms of these definitions, children adopted into the families of the deceased's siblings and their descendants are Beneficiaries for the purpose of the will. An issue also arises as to whether children adopted out of the biological families of the deceased's siblings and their descendants are "Beneficiaries" for the purposes of the will.

5. The number of actual and potential Beneficiaries is large. The evidence before the Court is incomplete but, even so, it discloses at least 30 children, grandchildren and great-grandchildren of siblings of the deceased. Furthermore, as I have mentioned, the trust will last for a further 77 years and it is to be expected that scores of descendants of the deceased's siblings will be born during that period. For this reason, the legal representatives of the plaintiffs seek to have representative orders made for the different classes of actual and potential Beneficiaries in order to determine in a final and binding way the issues to which I have referred concerning the status of adopted-out and adopted-in family members and their descendants.

6. The first defendant, Dennis John Williams, is a nephew of the deceased through one of his siblings, who was neither adopted out nor adopted-in. It is proposed that Mr Williams be appointed to represent the interests of all such Beneficiaries of the deceased's estate, and Mr Williams' legal representatives consent to the orders.

7. The proposed second defendant is James Eric Maddocks, who was a natural born child of the deceased's sister, Patricia Veronica Smith, but was adopted out of her family. It is proposed that Mr Maddocks be appointed as the representative of all adopted-out potential Beneficiaries (that is, all persons who themselves were adopted out or are descendants of such persons). Mr Maddocks has retained lawyers to represent him, and, through those lawyers, has consented to the proposed orders.

8. As I have mentioned, the proposed third defendant, Gregory Smith, was adopted in to the deceased's family. He is the adopted son of Patricia Veronica Smith, a sister of the deceased. So far as the evidence goes, he is the only person identified as having been adopted-in. Mr Smith has not consented to the proposed orders joining him as a defendant and appointing him as representative of all persons who have been adopted in, and their descendants.

9. On the correspondence before the Court, it appears that Mr Smith considers himself to be a Beneficiary under the will but regards his joinder as an unnecessary step (which he apparently attributes to incompetence on the part of the plaintiff’s solicitors). It appears that Mr Smith has two children of his own, one of whom himself has a child, but no details are available concerning those persons and, given Mr Smith's attitude, it appears unlikely that any of them could be appointed to represent the class of adopted-in persons and their descendants.

10. Given Mr Smith's contention that he is properly a Beneficiary under the will, there is clearly an issue which needs to be determined. In those circumstances it seems to me that the joinder of Mr Smith as a defendant (and his appointment in a representative capacity) is the only sensible course for ensuring that the issue can be finally disposed of.

11. I do not accept the suggestion in the correspondence from Mr Smith that the situation that has arisen is in some way due to the incompetence of the plaintiff’s solicitors. The need to join Mr Smith and to resolve the issue arises from the terms of the deceased's will and the fact that Mr Smith (quite justifiably) is claiming an interest under it. So far as I can see, no blame whatsoever can be attributed to the solicitors for the plaintiff, who appear to be acting in accordance with the duties imposed upon the plaintiff executor, their client.

12. I understand that Mr Smith may have concerns about the costs of legal representation. But, it is conventional in proceedings of this sort that a party joined in a representative capacity to resolve an issue of entitlement would generally be awarded out of the estate any legal costs which that party might incur, provided that such costs are reasonable. The reasonableness of the position taken by such a party cannot be determined in advance of the hearing but I would encourage Mr Smith to seek to obtain legal representation on the basis that, provided he conducts his case reasonably (and there is nothing to suggest that he would not), his costs would be recoverable.

13. For these reasons I consider it appropriate to make orders for the joinder of Mr Maddocks and Mr Smith as the second and third defendants respectively and to make representative orders appointing Mr Williams, Mr Maddocks and Mr Smith as representatives of the three classes which I have identified.

14. The orders also provide that if Mr Smith does not take an active part in these proceedings, the plaintiff will himself cause his solicitors to brief counsel to prepare submissions and represent the interests of persons falling within the class of adopted-in persons and their descendants. I will make this order although, as I have stated, I hope that Mr Smith will reconsider his position and himself take up the task of representing the interests of himself and his descendants.

15. The form of the orders defining classes refers to persons "adopted out of his or her biological family" and persons who have been "adopted by a sibling of the deceased or by any biological or adoptive descendant of a sibling of the deceased". As I have mentioned, more than one person has been adopted out and it is conceivable that the legislative regime for such persons could have differed, for instance because the adoption might have been made under the laws of a different State or under a different version of the laws of this State. At present there is no indication of any relevant difference but the legal representatives for the plaintiff will need to bear in mind that the class represented by Mr Maddocks may itself have subclasses. Should any distinction arise between members of that class, then no doubt a further representative order could be made in due course.

16. The orders of the Court are:

1.   I make orders in accordance with the short minutes of order which I have amended, initialled and dated with today’s date.

2.   I list the matter for directions on 12 April 2018 before the Registrar in Equity.

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Decision last updated: 08 March 2018