Midhurst (Deceased) & Midhurst

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.