Midhurst (Deceased) & Midhurst - [2008] FamCA 393

FAMILY COURT OF AUSTRALIA

MIDHURST (DECEASED) & MIDHURST

[2008] FamCA 393

FAMILY LAW – PROPERTY SETTLEMENT – death of party – application by daughter seeking to be substituted for deceased wife pursuant to s 79(8) – consideration of difference in wording used in s 79(8) of Family Law Act and rule 6.15 of Family Law Rules 2004 with respect to substitution for a deceased party – Rules to be read subject to specific provisions of Family Law Act – s 79(8) permits proceedings to be continued by “the legal personal representative” – whether court has power to determine the “legal personal representative” of a deceased party – whether documents can be accepted in evidence as wife’s last will and testament – consideration of s 120 of Administration and Probate Act1919 (SA) and s 79 of Judiciary Act 1903 – court not able to determine wife’s “legal personal representative” – issue to be determined by Supreme Court of South Australia – application dismissed.

Family Law Act 1975 (Cth) s 79
Judiciary Act 1903 (Cth) s 79
Evidence Act 1995 (Cth) ss 8 & 92 (1)
Inheritance (Family Provision) Act 1972 (SA)
Administration and Probate Act 1919 (SA) s 120
Wills Act 1936 (SA) s 12

Family Law Rules 2004 rr 6.15 & 10.11(2)

S (deceased) and S [2002] FamCA 1281 (unreported)
Northern Territory of Australia v GPAO (1999) FLC 92-838
White and Tulloch v White (1995) FLC 92-640

APPLICANT:

Mrs Midhurst (Deceased)

RESPONDENT:

Mr Midhurst

FILE NUMBER:

ADC

1916

2007

DATE DELIVERED:

6 June 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

13 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J McGinn

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse

COUNSEL FOR THE RESPONDENT:

Mr M Heffernan

SOLICITOR FOR THE RESPONDENT:

Heffernan & Co.

Orders

(1)That the Further Amended Application filed on behalf of the estate of the deceased wife by Miss Midhurst (the daughter) on the 7 March 2008 be dismissed.
(2)That the Response to an Application in a Case filed by the husband be dismissed.
(3)That the proceedings for Final Orders be referred to the Docket Registrar for a directions hearing on the 11 day of September 2008.
(4)If proceedings are pending in the Supreme Court of South Australia concerning the estate of the late wife, the Registrar is directed to adjourn these proceedings pending the outcome of those proceedings until such time as Grant of Probate or Letters of Administration of the Estate are determined.
(5)That the orders of Justice Burr made on the 26 July 2007 are discharged.
(6)That the husband give written notice to the daughter, Miss Midhurst, by letter in writing to Norman Waterhouse solicitors within two [2] clear business days of lodging any application for probate of the will of the late wife or any application for Letters of Administration of her estate.
(7)That the daughter, Miss Midhurst, give written notice to the husband care of his solicitors, Heffernan & Co, within…

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 Midhurst (Deceased) & Midhurst

Details

AGLC: Midhurst (Deceased) & Midhurst [2008] FamCA 393
Case: [2008] FamCA 393
Decision Date: 6 June 2008

CaseChat Overview and Summary

The proceedings involved the estate of a deceased wife, represented by her daughter, Miss Midhurst, and her husband. The daughter sought to be substituted for the deceased wife in family law property settlement proceedings pursuant to section 79(8) of the *Family Law Act 1975* (Cth). The central dispute revolved around the court's ability to determine the legal personal representative of the deceased wife and to admit her alleged last will and testament into evidence.

The court was required to determine whether it possessed the power to identify the deceased wife's "legal personal representative" for the purposes of continuing the property settlement proceedings. This involved considering the interplay between section 79(8) of the *Family Law Act* and Rule 6.15 of the *Family Law Rules 2004*, as well as the effect of South Australian legislation, specifically section 120 of the *Administration and Probate Act 1919* (SA), and Commonwealth legislation, including section 79 of the *Judiciary Act 1903* (Cth) and the *Evidence Act 1995* (Cth). A further issue was whether the court could accept documents as the wife's last will and testament in the absence of formal proof of its validity.

The court reasoned that while section 79(8) of the *Family Law Act* permits proceedings to be continued by a deceased party's "legal personal representative," the Family Court itself does not have the jurisdiction to determine who that representative is. This determination, including the admission of a will to probate or the granting of letters of administration, falls within the purview of the Supreme Court of South Australia. The court found that section 120 of the *Administration and Probate Act 1919* (SA), which requires a will to be proved before it can be admitted as evidence (except in specific probate proceedings), was binding on the Family Court by virtue of section 79 of the *Judiciary Act 1903* (Cth). Consequently, the alleged will and any other documents purporting to establish the wife's testamentary intentions could not be admitted as evidence in these proceedings.

The application by Miss Midhurst to be substituted for the deceased wife was dismissed. The court also dismissed the husband's response to the application. The proceedings were referred to the Docket Registrar for a directions hearing, with a direction to adjourn pending the outcome of any proceedings in the Supreme Court of South Australia concerning the estate of the late wife. The court also made orders regarding notification of applications for probate or letters of administration and granted an injunction restraining the husband from dealing with certain real estate properties until further order.

Orders

Orders of the court

(1) That the Further Amended Application filed on behalf of the estate of the deceased wife by Miss Midhurst (the daughter) on the 7 March 2008 be dismissed.

(2) That the Response to an Application in a Case filed by the husband be dismissed.

(3) That the proceedings for Final Orders be referred to the Docket Registrar for a directions hearing on the 11 day of September 2008.

(4) If proceedings are pending in the Supreme Court of South Australia concerning the estate of the late wife, the Registrar is directed to adjourn these proceedings pending the outcome of those proceedings until such time as Grant of Probate or Letters of Administration of the Estate are determined.

(5) That the orders of Justice Burr made on the 26 July 2007 are discharged.

(6) That the husband give written notice to the daughter, Miss Midhurst, by letter in writing to Norman Waterhouse solicitors within two [2] clear business days of lodging any application for probate of the will of the late wife or any application for Letters of Administration of her estate.

(7) That the daughter, Miss Midhurst, give written notice to the husband care of his solicitors, Heffernan & Co, within two [2] clear business days of any application by her for probate of the will of the late wife or Letters of Administration of the estate of the late wife.

(8) That until further order the husband is restrained and an injunction is granted restraining the husband from noting the wife’s death on the title of the listed real estate properties or otherwise dealing with his interests or the wife’s interest in the properties, EXCEPT in the ordinary course of maintaining and managing the said properties and for this purpose the listed real estate properties are:

(a) M property (Certificate of Title Register Book Volume … Folio …);

(b) D Street, F (Certificate of Title Register Book Volume … Folio …);

(d) N Street, F (Certificate of Title Register Book Volume … Folio …).

Background

Background to the litigation

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Evidence

Evidence Before The Court

At the original hearing neither counsel referred me to the provisions of the Administration and Probate Act 1919 (SA) in particular Section 120:No will to be registered or admissible in evidence until proved(1)No will of any person dying on or after the twenty-sixth day of October, 1893, shall be registered, or be admissible or receivable in evidence, except in criminal proceedings or upon application for probate or letters of administration, until administration in respect of the estate comprised therein has been issued or obtained. (My underlining)(2)In this section—administration means any probate or letters of administration with or without a will annexed and any rule or order of any Court or Judge, and any deed or document of any kind whatsoever whereby any person becomes entitled at law to administer, take charge of, or become receiver of any property of deceased persons. By virtue of Section 79 of the Judiciary Act 1903 (Cth) this is binding on the Family Court of Australia in South Australia. I gave notice of these provisions to the parties and called for their further submissions prior to delivering my judgment. Section 8(1) of the Evidence Act states:“(1)This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903.” The other provisions of the Evidence Act do not deal with the issues before me. Section 8 does not have the effect of over-riding the provision of section 120 of the Administration and Probate Act (SA). The specific provision is not inconsistent with any provision in a Commonwealth Act because the State provisions are specifically directed to an area of State jurisdiction, namely probate and wills, whilst the Evidence Act is general and does not cover this topic. See Northern Territory of Australia v GPAO (1999) FLC 92-838. Section 92(1) of the Evidence Act states:“(1)Subsection 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove:(a)the death, or date of death, of a person; or(b)the due execution of a testamentary document.” The specific provisions of the State Act relating to the requirement of Probate or Letters of Administration of the will of a deceased person continue to apply to proceedings in the Family Court of Australia. Submissions on behalf of the husband referred to White and Tulloch v White (1995) FLC 92-640. That decision concerned the relevance and admissibility of a will of a relative of one of the parties to the marriage being a will of a person who was still living. The provisions of any legislation concerning evidence of a will of a deceased person were not relevant and were not considered. Therefore neither the document (being the alleged will of October 2004 nor the handwriting of the wife alleged to have been written after February 2007) can be before me as the Last Will and Testament of the deceased wife. These are matters which need to be determined in the Supreme Court of South Australia taking into account the provisions of the Administration and Probate Act 1919 (SA) and the Wills Act 1936 (SA). (Section 12 of the Wills Act 1936 (SA) makes specific provision for a document to be admitted to probate as a will even though it has not been executed with formalities required by the Act.)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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