Metherell v Public Trustee in its Capacity as Executor of the Estate of the late Patricia Helen Peek [No 2]

In this case, Metherell sought an order under the Family Provision Act 1969 (Vic) for an equitable interest in the estate of Patricia Helen Peek, who had died intestate. The principal beneficiary, Metherell's sister, was bankrupt at the time of death. The sister's bankruptcy had been discharged, but no reassignment of property had been made from the trustee in bankruptcy, as the deceased had not made any such request. The estate was in the hands of the Public Trustee as executor. The sister's bankruptcy had subsequently been removed, and a new Trustee in Bankruptcy had been appointed. The Public Trustee sought to remove itself as executor, and Metherell opposed this on the basis that the court should hear her application for family provision before the estate was distributed. The central legal issue was whether the court could hear Metherell's application for family provision in the absence of a reassignment of property by the Trustee in Bankruptcy.

The court held that the Family Provision Act 1969 (Vic) did not require a reassignment of property by the Trustee in Bankruptcy before the court could hear an application for family provision. The court emphasised that the Act was concerned with the distribution of the deceased's property, not the distribution of property that had been vested in the Official Trustee in the course of the bankruptcy. The court also held that the change of Trustee in Bankruptcy did not affect the court's jurisdiction to hear Metherell's application. The court granted Metherell's application to remain as a party and ordered that the Public Trustee remain as executor until the court had made a final order in the family provision application. The court also ordered that Metherell's application for family provision be heard before the estate was distributed.

The court's decision clarified the interaction between the Family Provision Act 1969 (Vic) and the Bankruptcy Act 1966 (Cth) in cases where the principal beneficiary is bankrupt at the time of death. The court held that the Act does not require a reassignment of property by the Trustee in Bankruptcy before an application for family provision can be heard. This decision provides guidance to practitioners in cases where a beneficiary seeks family provision from an estate where the principal beneficiary is bankrupt. The court's decision also highlights the importance of ensuring that family provision applications are heard before the estate is distributed, to ensure that the court has the opportunity to make a final order in the application.