Nobile v Scragg
[2011] SASC 182
•25 October 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
In the Estate of VITTORIA COPPOLA, DECEASED
NOBILE v SCRAGG & ORS
[2011] SASC 182
Reasons of Judge Withers a Master of the Supreme Court
25 October 2011
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - PRACTICE
Inheritance (Family Provision) Act application before probate - application to dismiss - application for concurrent or consecutive hearing of probate action and inheritance action.
Inheritance (Family Provision) Act 1972 (SA) ss 4, 7 and 8 , referred to.
Burns v Elder's Trustee and Executor Co Ltd & Anor (1968) SASR 297, applied.
Blunden v Blunden & Anor (2008) 258 LSJS 206; [2008] SASC 286; Central Electricity Generating Board v Halifax Corporation (1962) 3 All ER 915; Ruwolt v Drake-Brockman & Anor (Unreported, Master Ng, Supreme Court of WA, 29 March 1996); Re Purnell (1961) Queensland Law Reporter 47; Leue v Reynolds & Anor (1986) 4 NSWLR 590, considered.
In the Estate of VITTORIA COPPOLA, DECEASED
NOBILE v SCRAGG & ORS
[2011] SASC 182
JUDGE WITHERS. In Supreme Court Action No 1280 of 2010 the plaintiffs Severina Coppola and Peter Scragg, by a summons and statement of claim filed on 16 September 2010 sought an order that the will of Vittoria Coppola, who died on 31 August 2009, and which will was dated 2 June 1992, be admitted to probate in solemn form. The defendant to that action is Grazia Nobile who had filed a caveat in the probate office against the granting of such probate.
Mr Scragg in an affidavit filed on 11 October 2010 – FDN 3 – attested that Vittoria and her late husband Giuseppe, who had died on 16 April 1991, had three daughters, Grazia, Severina, and Concetina. They also had a son Francesco but he had died on 5 March 1971.
To his affidavit Mr Scragg exhibited a copy of the will of Vittoria that had been executed on 18 April 1972 – document 3A on the Court file. By this will Vittoria had appointed Severina as her executor, had left $100.00 to Grazia, and had left the balance of her estate in equal shares to Severina and Concetina.
Mr Scragg further exhibited a copy of Vittoria’s will of 2 June 1992, being document 3B on the Court file. By that will Vittoria appointed Severina and Mr Scragg as executors and left two-thirds of her estate to Severina and one-third to Concetina provided that she complied with certain conditions, which Mr Scragg attested had been met. There was a residual bequest to the children of those two beneficiaries if they did not survive Vittoria to take a vested interest. By paragraph 6 of that will Vittoria specifically excluded Grazia from the disposition of her estate as a result of alleged inappropriate conduct.
On 3 November 2010 Grazia filed a defence to the action taken by Severina and Mr Scragg – FDN 4 – in which defence she challenged the deceased’s legal capacity at the time that the 1992 will was executed.
On 20 December 2010 Grazia issued proceedings under the Inheritance (Family Provision) Act 1972 (SA) (“IFP Act”) in Supreme Court Action No 1740 of 2010. She also issued interlocutory applications in both the probate action and the inheritance action (FDN 6 and FDN 2 respectively) seeking orders that the two actions proceed concurrently, or that they be heard consecutively and that the evidence in the probate action be evidence in the inheritance action.
Further statements of claim were filed in the probate action, the last being the third statement of claim filed on 26 August 2011. This added Concetina as the second defendant to the action as required by r 205. In that pleading the plaintiffs sought, as they had in the second statement of claim, that the Court pronounce for the will of 2 June 1992 in solemn form, but in the alternative if it was not satisfied that such a pronouncement was appropriate then it pronounce in solemn form for the will of 18 April 1972.
In the defence filed by Grazia to the second statement of claim on 20 April 2011 – FDN 11 – Grazia asserted that Vittoria did not have testamentary capacity in 1992 and, further, did not have such capacity in 1972. The defence case is that neither will should be admitted to probate.
There is within the papers no suggestion of any other will and, accordingly, if that defence were to succeed then Vittoria’s estate would be subject to an intestacy. Under the rules of intestacy each of Severina, Concetina and Grazia would then be entitled to a third share – see Administration and Probate Act 1919 (SA) – s 72I(b).
I note that a major asset of the estate is a property which has a substantial value. If none of the three daughters applied for letters of administration or the Court did not appoint an administrator then it is likely that Public Trustee would be requested to apply under s 9 of the Public Trustee Act 1995 (SA) to obtain an order for administration.
There are presently two interlocutory applications before the Court in Action No 1740 of 2010. The first such interlocutory application is FDN 2 filed on 20 December 2010 seeking orders that the action be heard concurrently with or consecutively to Action No 1280 of 2010 and as to the use of evidence in the probate action. A like interlocutory application was filed in the probate action. The second interlocutory application is FDN 4 filed on 8 February 2011 seeking that the action be struck out as premature and that the plaintiff pay the costs of the defendants Mr Scragg, Severina Coppola and Concetina Coppola. The applications were argued on 5 October 2011.
The application to strike out the inheritance claim is founded on the proposition that the same was issued before any grant of administration and as such no cause of action has yet arisen. It is argued that there needs to be a determination of the probate claim and a consequent grant of administration before Grazia or any other applicant will be entitled to initiate proceedings under the IFP Act.
Sections 7 and 8 of the IFP Act are in the following terms:
7—Spouse and persons entitled may obtain order for maintenance etc out of estate of deceased person
(1) Where—
(a)a person has died domiciled in the State or owning real or personal property in the State; and
(b)by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provision for his proper maintenance, education or advancement in life,
the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
(2) Notice of an application under subsection (1) of this section shall be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct.
(3) The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.
(4) The Court may, in making any order under this Act, impose such conditions, restrictions and limitations as it thinks fit.
(5) If, in respect of an application under subsection (1) of this section, it appears to the Court that the matter would be more appropriately determined by proceedings outside the State, the Court may (without limiting the powers conferred on it by the preceding provisions of this section) refuse to make an order under this section or adjourn the hearing of the application for such period as the Court thinks fit.
(6) In making the order the Court may, if it thinks fit, order that the provision shall consist of a lump sum or periodic or other payments or a lump sum and periodic or other payments.
8—Time within which application to be made
(1) Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
(2) The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.
(3) An extension of time granted pursuant to this section may be granted—
(a)upon such conditions as the Court thinks fit; and
(b)whether or not the time for making an application pursuant to subsection (1) of this section has expired.
(4) An application for extension of time pursuant to this section shall be made before the final distribution of the estate.
(5) Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.
(6) An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.
(7) Where an application has been made for the benefit of this Act, the Court may, if satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application.
Section 4 of the IFP Act provided:
administrator means any person to whom administration has been granted;
and, further:
administration means probate of the will of a deceased person or letters of administration of the estate of a deceased person …
The defendants in seeking that the action be struck out relied on the approach taken by Mitchell J in the matter of Burns v Elder’s Trustee and Executor Co Ltd & Anor (1968) SASR 297, where (at 300) her Honour said, in considering s 4 of the predecessor to the IFP Act, namely the Testator’s Family Maintenance Act 1918 (SA):
… The plain meaning of s 4 is, in my opinion, that the application is to be made after the grant of probate but within six months thereof.
Her Honour in that matter was considering whether or not it was necessary to grant an extension of time to an applicant who had issued proceedings under the Testator’s Family Maintenance Act outside of the six month limitation that applied but within twelve months thereof. In so doing it was necessary for her to consider the provisions of s 47 of the Limitation of Actions Act in determining whether or not the cause of action under the Testator’s Family Maintenance Act arose on the death of the testator or upon the grant of probate. She cited, with approval, Central Electricity Generating Board v Halifax Corporation (1962) 3 All ER 915, where Lord Guest said (at 923):
The date when a cause of action accrues may be said to be the date on which the plaintiff would be able to issue a statement of claim capable of stating every existing fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment. …
Mitchell J then went on (at 301) to explain as follows:
In an application under the Testator’s Family Maintenance Act, one fact which it would be necessary for the plaintiff to prove to support his right to an order would be that probate of the will of the testator had been granted to the defendant or defendants. … I therefore am of opinion that the cause of action in an application under the Testator’s Family Maintenance Act does not arise until the grant of probate. …
In considering whether it was necessary for an extension of time to be granted her Honour went on to say:
Section 4 of the Testator’s Family Maintenance Act requires the application to be made within a period of six months from the date of probate, and if I am right in holding that the cause of action does not accrue until probate is granted then s 47 of the Limitation of Actions Act applies. The word “action” in that section includes an application (see s 3). In my view, therefore, the plaintiff is at liberty to proceed without obtaining any order for extension of time to make the application.
Reference was also made by counsel for the third defendant to a decision of Master Ng in Ruwolt v Drake-Brockman & Anor (unreported, Supreme Court of Western Australia, 29 March 1996). In that matter an application had been made under the Testator’s Family Maintenance Act 1914-1952 (WA) before the grant of probate. Subsection 7(2) of the Western Australia Act read as follows:
(2)No application under subs (1) of this section shall be heard by the Court unless –
(a) the application is made within six months from the date on which the Administrator becomes entitled to administer the estate of the deceased in Western Australia; or
(b) the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
This is similar in effect to s 8(1) of the IFP Act.
The learned Master noted that while s 7 of the Western Australia Act did not expressly prohibit the application from being brought prior to an application for a grant being made it was nevertheless his view that the application was premature and incompetent. He rejected an argument that the extension of time power could be used retrospectively to bring the permissible time for issue of the proceedings forward before the grant of probate.
I note that without any particular discussion Bleby J accepted the approach of Mitchell J in the Burns case in the matter of Blunden v Blunden & Anor (2008) 258 LSJS 206; [2008] SASC 286, where at 6 he said in respect of the IFP Act:
… at that stage there had been no grant of probate. Proceedings under the Act could not be commenced until that occurred [the Burns case (supra)]. …
The plaintiff argued that the proceedings were a valid exercise of a cause of action relying on a decision of Gibbs J, as he then was, in Re Purnell (1961) Queensland Law Reporter 47 at 48, and Hodgson J in Leue v Reynolds & Anor (1986) 4 NSWLR 590.
In Re Purnell, Gibbs J had found that there was no reason the Court should not in a proper case direct that an application be heard notwithstanding that the proceedings were instituted before probate was granted but that it would be inappropriate so to do until probate had been granted. However, the legislation that was the subject of construction in that matter provided the Court with a power to “otherwise direct”. The relevant provision of the Testator’s Family Maintenance Act 1914 (Qld) is s 3(8) which provides:
(8)Unless the Court otherwise directs, no application shall be heard by the Court at the instance of a party claiming the benefit of this Act unless the proceedings for such application be instituted within six months from the date of the grant in Queensland of probate of the will. [Italics mine.]
No such qualifying provision or discretion is provided in s 8 of the South Australian Act.
In Leue v Reynolds (supra) similarly the Court was considering a different statutory regime which in s 41A of the Wills, Probate and Administration Act 1898 (NSW) provided the Court with jurisdiction to grant administration in respect of a deceased estate in order to permit an application to be made under the Family Provision Act 1982 (NSW). There was more flexibility provided in that statutory regime to enable the Court to make orders to facilitate the resolution of an inheritance claim notwithstanding that the claim may have been made before any grant of administration.
It was submitted by counsel for the plaintiff that s 7 of the Inheritance (Family Provision) Act 1972 provided the plaintiff with a cause of action in this matter and that s 8 simply confined the time within which a remedy could be granted. I reject that submission. In my view s 7 provides the Court with jurisdiction to hear and determine an application for the benefit of the Act by an eligible person provided that application is made in accordance with the Act. Section 7(2) provides that notice of the application has to be served on the administrator of the estate of the deceased person. The “administrator” of the estate of the deceased person is defined in s 4 to mean:
administrator means any person to whom administration has been granted;
“Administration” is defined in that section to make it clear that it refers to a grant of probate or letters of administration.
Section 8(6) of the Act provides that the application for the benefit of the Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate. Section 8(1) requires the application to be made within six months from the date of the grant in the estate of probate of the will or letters of administration of the estate of the deceased person.
In my view the proper construction of those sections is that an application for relief under the IFP Act is not available to an eligible applicant until such time as there has been a grant of probate or letters of administration. Such an application must be brought within six months of the grant. The application is effectively made when it is served on the administrator. The Court may in its discretion extend the time for such application and/or service.
Accordingly, Action No 1740 of 2010 should be struck out as failing to disclose a cause of action.
It was argued that the Court should at least endeavour to preserve the proceedings by staying the action until after the resolution of the probate action with a view to perhaps avoiding unnecessary duplication. However, that consideration (which in any event I do not consider to be available) is outweighed by a significant number of factors, including:
(1)the identity of the executor or administrator of the estate upon whom the proceedings should be served is not yet clear, and will not be until a resolution of the probate action and a grant of administration;
(2)it will not be clear until the resolution of the probate action as to what is to be the disposition of Vittoria’s estate. It will be different if the 1992 will is proved or, alternatively, the 1972 will is proved or, alternatively, if she is found to have died intestate;
(3)it is not clear as to what, if any, other claimants there may be who might pursuant to r 312 wish to make a claim under the IFP Act;
(4)it is not possible for the provisions of r 312 to be complied with until such time as administration has been granted to an executor or administrator;
(5)it would be undesirable for the Court to encourage or permit the premature issue of inheritance actions.
As to the plaintiff’s application that the proceedings should be heard consecutively or, alternatively, that the evidence taken in the probate action should be available for use in the inheritance action that application is also premature. That application highlights the difficulties and confusion that could be caused by such an order being made. If it was to be ordered that the evidence in the probate action was to be available for use in an inheritance claim as yet unable to be formulated with precision, then this potentially leads to a number of persons with only a possible sufficient interest in the outcome of some inheritance claim having an arguable case to intervene in the probate action to be heard and to have the opportunity of cross-examining on the evidence. In my view rather than simplifying and making more efficient the disposition of litigation it would have the opposite effect.
For the foregoing reasons, the orders of the Court will be:
1.That the plaintiff’s application FDN 2 in Action No 1740 of 2010 that this action be heard concurrently or consecutively with Action No 1280 of 2010 be refused.
2.That the said application that the evidence in Action No 1280 of 2010 be evidence in Action No 1740 of 2010 be refused.
3.That the application by the first and second defendants that Action No 1740 of 2010 be struck out be allowed and that the action be dismissed.
4.That the plaintiff is to pay the costs of the first, second and third defendants in Action No 1740 of 2010 to be taxed or agreed.
5.I certify fit for counsel.
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