O'Brien v Hall

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S CI 2014 1633

IN THE MATTER of Part IV of the Administration and Probate Act 1958

and

IN THE MATTER of the Will and Estate of GEORGE NICHOLAS GRAHAM HALL (deceased)

BETWEEN:

LAUREN FRANCES O'BRIEN	Plaintiff
v
OLWEN MARY HALL	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2014
DATE OF JUDGMENT:	27 February 2015
CASE MAY BE CITED AS:	O’Brien v Hall
MEDIUM NEUTRAL CITATION:	[2015] VSC 52

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ADMINISTRATION AND PROBATE – Part IV – Testators’ Family Maintenance – Application for provision for the proper maintenance and support where no grant of probate of deceased’s Will in Victoria – General grant of probate of deceased’s Will in United Kingdom – Principal asset of deceased’s estate a right to due administration of mother’s Will in United Kingdom – Asset of mother’s estate real property in United Kingdom – Proceeds of administration of mother’s Will (sale of real property) paid to executrix’s solicitors in United Kingdom and thence paid to executrix, who is also sole beneficiary under deceased’s Will – Whether jurisdiction available to commence application under Part IV – whether proceeding a nullity – No jurisdiction without grant of probate or reseal of United Kingdom probate – Administration and Probate Act 1958 (Vic), ss 6, 90, 91, 93, 97, 99 & 99A.

PRACTICE AND PROCEDURE – Application to dismiss proceeding as disclosing no cause of action – Application for summary judgment by defendant – Whether appropriate for summary dismissal – Supreme court (General Civil Procedure) Rules 2005 (Vic), r 23.01(1)(a) and r 23.03; Civil Procedure Act 2010 (Vic), Part 4.4.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr I Hardingham QC and Mr M McKenzie	Constable Connor & Co Pty Ltd
For the Defendant	Mr R. Boaden	Armstrong Lawyers

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of Conclusions................................................................................................................. 1

Background......................................................................................................................................... 3

Procedural Rules and Principles..................................................................................................... 7

The Defendant’s Contentions........................................................................................................ 10

Jurisdiction................................................................................................................................... 10
No Estate...................................................................................................................................... 11

The Plaintiff’s Response................................................................................................................. 12

Jurisdiction................................................................................................................................... 12
No Estate...................................................................................................................................... 14
Defendant’s Submissions in Reply........................................................................................... 15

The Victorian Legislation............................................................................................................... 17

Decisions on Comparable Legislative Provisions...................................................................... 21

United Kingdom......................................................................................................................... 21
Queensland.................................................................................................................................. 24
South Australia............................................................................................................................ 27
Western Australia....................................................................................................................... 29
Current provisions in NSW and Queensland – A contrast................................................... 30

Consideration.................................................................................................................................... 32

Jurisdiction................................................................................................................................... 32
No Assets...................................................................................................................................... 39

Conclusion......................................................................................................................................... 41

HIS HONOUR:

Introduction

Lauren O’Brien (‘the plaintiff’) is the daughter of the deceased (‘George Hall’ or ‘the deceased’) from his first marriage. By Originating Motion filed on 8 April 2014, the plaintiff has applied under Part IV of the Administration and Probate Act 1958 (Vic) (‘the Act’) for an order making provision for her maintenance and support on the basis that the deceased had responsibility to make provision for her, and his Will failed to make any such provision (‘an application for family provision’).

Olwen Mary Hall (‘the defendant’) is George Hall’s second wife, and the executrix and universal beneficiary under his Will made on 17 July 2006. That Will has been proved in the United Kingdom (‘UK’) but not in Victoria. That is, there has been no grant of probate of the Will, or letters of administration with Will annexed, in Victoria. Nor has there been any reseal of the UK grant of probate in Victoria under s 81 of the Act (I will describe the several modes of grant as a ‘grant of representation’).

By Summons filed on 29 July 2014, the defendant has applied for two forms of interlocutory relief:

(a) An order dismissing the proceeding and giving judgment for the defendant on the basis that the Originating Motion does not disclose a cause of action, pursuant to r 23.01(1)(a) or r 23.03 of the Supreme Court (General Civil Procedure) Rules2005 (Vic) (‘the Rules’); or

(b) An order for summary judgment in her favour on the basis that the plaintiff’s claim in the proceeding has no real prospect of success, pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (‘the CPA’).

Summary of Conclusions

The essential basis of the first contention of the defendant is that the Originating Motion does not disclose a cause of action because the grant of representation in Victoria is an essential element of the cause of action under Part IV of the Act.

In my view, it is implicit in s 91 of the Act, when construed in the context of Part IV of the Act as a whole, that there must be a grant of representation for there to be jurisdiction in the Court to entertain the application presently made in the proceeding.

The authorities to which I refer below, in particular the decisions in Re Jenner,[1] Burns v Elder’s Trustee and Executor Co Ltd[2] and Ruwolt v Drake-Brockman,[3] support the construction of the Act that a grant of representation in Victoria is a necessary element in the cause of action under Part IV.
[1][1960] Qd R 349, 351.
[2][1968] SASR 297.
[3]Unreported, WA Supreme Court, Master Ng, 29 March 1996.

Having regard to the plaintiff’s stated intention of commencing proceedings to compel the defendant to obtain a grant of representation if she fails to take that step herself,[4] it is appropriate to dismiss the proceeding and leave the plaintiff to pursue her rights to compel the defendant to obtain a grant of representation in Victoria, if she can, and then to make application under Part IV within the time limits prescribed by s 99 of the Act.
[4]See transcript of argument, 30 September 2014, 17.29–31.

It is important to observe that the only claim made in the Originating Motion is an application under Part IV of the Act. The plaintiff’s submissions in answer to the defendant’s contention that the Court lacked jurisdiction (apart from contesting the construction of the Act advanced on behalf of the defendant) was that a claim was available to the plaintiff against the defendant that she has intermeddled in the estate of the deceased or was duty bound to make application for a grant of representation in Victoria. The plaintiff did not seek to amend the initiating process so as to raise that, or any other, claim against the defendant and indicated she did not intend to do so.[5] It is therefore unnecessary to consider those claims in detail.
[5]See transcript of argument, 30 September 2014, 7.22–5.

The defendant also maintained that even if the Court had jurisdiction in the application, no order under Part IV could be made because there was no estate (that is, there were no assets) in Victoria at the date of the death of the deceased and no property has since been brought into Victoria. There is, therefore, no estate in Victoria in respect of which a grant of representation could be made now or in the future. In consequence, there could be no possibility of a ground for making an order under Part IV now or in the future. Thus, the defendant argues that there is no real prospect of success in the proceeding.

In relation to this contention, there are two difficulties facing the defendant. The first is that the factual foundation for the assertion that there was no estate in Victoria at the time of death of the deceased turned on the evidence that the only asset of the estate was the right to due administration of the deceased’s mother’s estate in the UK. There is a dispute as to that which cannot be resolved at this stage of the proceeding. The dispute is as to the existence of personal property. It may turn out, as the defendant in effect submitted, that this personal property is of no real value. However, that remains to be seen.

The second difficulty is that there is a dispute as to the character in which the defendant received the deceased’s entitlement under the estate of the deceased’s mother in the UK. The defendant says she received this entitlement as the sole beneficiary under the Will of the deceased. The plaintiff says it was received by the defendant in her capacity as executrix. The resolution of this issue requires further evidence, and it is inappropriate to determine the manner in which the entitlement was received at this stage.

Background

George Hall’s mother, Margery Hall, died domiciled in England on 30 September 2009. She left a Will dated 11 August 1995, by which she appointed a solicitor in England, Paul Thomas Boulton Smith, to be her executor. Her Will gave her estate to her sons – namely, the deceased and his brother Hugh – in equal shares.[6] Probate of Margery Hall’s Will was granted to the named executor, Mr Smith, by the Winchester Registry of the English High Court on 23 December 2009.[7] The only asset of that estate was Margery Hall’s two-third interest in her home in Hampshire, England.
[6]Exhibit PJC-1 to the affidavit of Peter Julian Connor sworn 28 April 2014 (‘the Connor Affidavit’).
[7]Exhibit PJC-2 to the Connor Affidavit.

George Hall died domiciled in Victoria on 19 July 2012. He and the defendant were joint owners of their home, and joint proprietors of their bank account. Both of these assets passed to the defendant by way of survivorship, and do not form assets of the deceased’s estate.

The defendant’s evidence is that the deceased’s interest in his mother’s estate was the only asset in his estate. The plaintiff’s evidence, however, is that the interest in that estate is the only valuable asset, there being some minor items of equipment referred to in the Will left to the Trustees of the Avenal Cemetery Trust and other items of personal property, including tools and equipment, a stamp collection and various private papers and medals.[8]
[8]See the affidavit of Peter Julian Connor sworn 23 September 2014.

Because the deceased’s entitlement in the unadministered estate of his mother was located in England at the time, the defendant obtained probate of the deceased’s Will there. She engaged English solicitors, William Sturges, to act for her. Probate was granted to the defendant on 19 November 2012 by the Welsh Registry of the English High Court.[9] It is a general grant, not limited to any specific property or jurisdiction. There has been neither a reseal of the English grant of Probate under s 81 of the Act in Victoria nor, of course, any general grant of probate of the deceased’s Will in Victoria.
[9]Exhibit PJC-3 and 4 to the Connor Affidavit.

Mr Smith, the executor of Margery Hall’s Will, took some time to administer the estate. It was not until January 2014 that her house had been sold and the proceeds of sale were collected by Mr Smith in his capacity as Margery Hall’s executor. The deceased’s entitlement in the estate of his mother was calculated to be £168,780.16. Since the deceased had also died by the time this sum was received by Mr Smith, the amount payable to the deceased was payable instead to his legal personal representative – namely, the defendant – in her capacity as the executrix of his Will.

On 28 January 2014, the sum of £168,780.16 was paid into the trust account of William Sturges in their capacity as the solicitors acting for the defendant as executrix of the deceased’s Will. William Sturges deducted fees of £7,500, and, on the defendant’s instructions, paid the net balance of £161,280.16 to her by transferring the funds into her own bank account in Australia at the end of January 2014. She received a net payment of approximately $301,000 into her own bank account, and claims that she received that sum as the beneficiary of the deceased’s estate and not as executrix of the Will of the deceased.[10]
[10]Affidavit of Liza Lim affirmed 8 May 2014, [14]–[17]. Confirmed by the defendant’s affidavit affirmed 30 July 2014.

On 8 April 2014, this proceeding was filed. The plaintiff issued the proceeding against the defendant in her capacity as the executrix of the Will of the deceased, seeking provision out of the estate of the deceased under Part IV of the Act. An application by the plaintiff for orders in this proceeding restraining the defendant from distributing or dealing with the assets of the estate was summarily dismissed (with costs) by order of McMillan J made on 12 May 2014, on the basis that there are no assets in the estate.

The defendant was put on notice of the plaintiff’s intention to make an application under Part IV of the Act in September and October 2013. The correspondence, so far as it relates to the giving of notice, was as follows:[11]
[11]Exhibit PJC-5 to the Connor Affidavit.

(a) A letter from the plaintiff’s solicitors dated 30 September 2013 to William Sturges, solicitors in the United Kingdom, enquiring as to the sale price of the property of the deceased’s mother, and notifying that the plaintiff (and her two siblings) have instructed the solicitors to bring a family provision claim against the deceased’s estate and requesting ‘your client’s undertaking that the sale proceeds will not be distributed until this matter is resolved’;

(b) A response from William Sturges, dated 1 October 2013, referring the plaintiff’s solicitors to the solicitors for the executors of Margery Hall’s estate (Turners) as to the sale price of the property, and stating in relation to the proposed family provision claim that:

We do not know the basis on which you are instructed to bring a ‘family provision claim’ against the estate of the late George Nicholas Graham Hall. However, you should be aware that Probate to the estate was granted in the United Kingdom on 19^th November 2012. We enclose a copy of the Grant. Under English law claims under the Inheritance Family Provisions Act should normally be brought within six months of the Grant of Probate. We suggest that you take advice from English solicitors in the matter.[12]
[12]Emphasis added.

(c) A letter from the plaintiff’s solicitors dated 8 October 2013 to Turners, solicitors, seeking advice as to the sale price of Margery Hall’s property. This letter informed Turners that they were instructed by the plaintiff (and her siblings) to bring a family provision claim against the deceased’s estate, and requested an undertaking that the sale proceeds would not be distributed directly to the defendant (bypassing the deceased’s estate) until the matter had been resolved;

(d) A response from Turners dated 11 October 2013 noting that, of course, Turners were not instructed in relation to the estate of George Hall and that the letter indicated no challenge in relation to the estate of Margery Hall in respect of which Turners were instructed. Turners advised that, in those circumstances, they had no option than to account to the executors of George Hall in respect of his share of Margery Hall’s estate and that any claim proposed to be made would be a matter for them to deal with;

(e) A letter dated 18 October 2013 from the plaintiff’s solicitors to the defendant’s then solicitors, Tehan George & Co of Seymour, indicating that the plaintiff and her siblings had instructed them to bring a family provision claim against the deceased’s estate. The letter asked whether Tehan George & Co acted for the defendant ‘as we are presuming the proceeds of the sale will form part of George Hall’s estate in Australia and require a grant of Probate in this jurisdiction’. The letter also requested an undertaking that the sale proceeds would not be distributed until the matter was resolved;

(f) On behalf of the defendant, her solicitors responded that she would not apply for a grant of Probate or administration in Victoria, and would give no undertaking not to dispose of the assets of the estate prior to the institution of such a proceeding.

Procedural Rules and Principles

The applications are made pursuant to r 23.01(1)(a) and r 23.03 of the Rules, as well as ss 62 and 63 of the CPA.

Order 23 of the Rules provides, so far as relevant:

23.01   Stay or judgment in proceeding
(1)       Where a proceeding generally or any claim in a proceeding –
(a)       does not disclose a cause of action;
……
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

…
23.03 Summary judgment for defendant
On application by a defendant who has filed an appearance, the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits.

Rule 23.01(1)(a), as sought to be applied by the defendant, is straightforward. It is simply that there is no complete cause of action until there is a grant of probate – or a reseal of the UK probate – in Victoria, and thus the proceeding does not disclose a cause of action. It is not suggested that the proceeding is scandalous, frivolous or vexatious under r 23.01(1)(b)) or an abuse of the process of the Court under r 23.01(1)(c). Ultimately, however, the test comes down to whether the proceeding is absolutely hopeless,[13] or so clearly untenable that it cannot possibly succeed.[14] I consider it unnecessary to deal with the law as to the summary judgment application under r 23.03 as, in the circumstances of this case, it comes down to the same test as under r 23.01(1)(a).
[13]Dey v Victorian Railway Commissioners, (1949) 78 CLR 62, 91 (Dixon J).
[14]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130 (Barwick CJ).

By contrast, Part 4.4 of the CPA has created a slightly less stringent test. The relevant sections are as follows:

62 Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1):
(a)on the application of a plaintiff in a civil proceeding;
(b)on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

64Court may allow a matter to proceed to trial

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.

It is common ground that the test for summary judgment under s 63 of the CPA was authoritatively expressed by Warren CJ and Nettle JA (as he then was) in Lysaght v Building Solutions Pty Ltd v Blanalko Pty Ltd.[15] The test is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success. The ‘real chance of success’ test is to some degree more liberal than the ‘hopeless’ or ‘bound to fail’ test, and acknowledges that there may be cases in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[16]
[15][2013] VSCA 158 [35].
[16]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29] (Warren CJ and Nettle JA, with whom Neave JA agreed).

Courts must, however, continue to exercise the power to terminate proceedings summarily with caution. The power to give summary judgment must be exercised in accordance with the overarching purpose of the CPA and taking into account the fact that, if granted, a party will be deprived of the chance to pursue its claim or defence.[17] Courts should, therefore, only exercise the power if it is clear that there is no real question to be tried. This is so irrespective of whether an application for summary judgment is made on the basis that:
[17]Ibid [42] (Neave JA).

(a) The pleadings do not disclose a reasonable cause of action, and no amendment could cure this error; or

(b) The action is frivolous, vexatious or an abuse of process; or

(c) The application for summary judgment is supported by evidence.[18]

[18]Ibid [35] (Warren CJ and Nettle JA, with whom Neave JA agreed).

Section 64 makes clear that even if there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:

(a) It is not in the interests of justice to summarily dispose of the proceeding (s 64(a)); or

(b) The dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b)).

Whether a proceeding should be allowed to go to a full hearing on the merits must be determined according to the circumstances of each case.[19]
[19]Barber v State of Victoria [2012] VSC 554 [15].

The Defendant’s Contentions

In summary, the defendant relies on two propositions to support her several applications, including for summary dismissal of the proceedings:

(a) First, that the Court has no jurisdiction in this case, as there has not been – and cannot be – a grant of probate or administration in Victoria, there has been no reseal of the UK probate and there need be no reseal of that probate. Accordingly, there is no cause of action disclosed and the proceeding should be stayed or dismissed (‘Jurisdiction’);

(b) Secondly, that, even if the Court does have jurisdiction in this matter, a family provision order cannot be made because the estate has been extinguished by the distribution of the sole asset of the estate to the sole beneficiary under the deceased’s Will. There is, therefore, no estate in Victoria in respect of which a grant of representation can be made (‘No Estate’).

Jurisdiction

In relation to the first argument, the defendant submits that jurisdiction of this Court to make orders for family provision is dependent on a grant of probate or administration in Victoria (or, more relevantly in the current circumstances, a reseal under s 81 of the Act because of the general grant of probate in the UK)[20] in respect of the deceased’s Will.
[20]The effect of a reseal under s 81 of the Act is that the probate has the like force and effect and the same operation in Victoria as if it had been originally granted in Victoria (s 81(2)), and the executor and the estate is subject to the same liabilities and obligations as if probate had been originally granted by the Supreme Court of Victoria (s 81(3)).

In support of this point, the defendant relied on both the provisions of the Act and decisions on comparable legislation in England and in other Australian jurisdictions (which the defendant’s Counsel reviewed and to which I refer below), which reveal that under the Act the Court can only exercise the family provision jurisdiction where there has been a grant of representation in Victoria. I will not go into the detail of this argument at this point, as I refer to it later in the course of reviewing the relevant provisions of the Act, the authorities and my consideration of them.

No Estate

The second argument made by the defendant is that there cannot be any grant of representation in Victoria because the deceased had no assets in Victoria when he died. In support of this proposition, she relies on s 6 of the Act, under which the Court is given jurisdiction to grant probate of the Will or administration of the estate of ‘any deceased person leaving property whether real or personal within Victoria’,[21] and s 91. The Court’s power in s 91(1) is founded on the requirement that at least part of the deceased’s estate has not yet been distributed. The wording of s 91(1) makes this clear:

Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.[22]

[21]A similar position arises in relation to any reseal, as s 81(1) & (2) provide that ‘When probate of the will or administration of the estate of any deceased person who has left any property whether real or personal within Victoria has been granted by any court of competent jurisdiction in the United Kingdom… the executor or administrator therein named …may …produce the same …to the registrar and file a verified copy or verified copies thereof in his office… and such probate …shall be sealed with the seal of the Supreme Court of Victoria.’ (Emphasis added).

[22](emphasis added).

The defendant argued that the only property that the deceased left when he died was the chose in action that is his entitlement to have his mother’s estate administered for his benefit.[23] This entitlement was located in England, not in Victoria. That asset ceased to exist when the estate was administered and the funds were paid to the deceased’s legal personal representative in the United Kingdom (in this case the defendant’s English solicitor, William Sturges) and thence to the defendant as beneficiary. There is no remaining estate of the deceased, as it has been distributed lawfully by the defendant as executor to herself as beneficiary under the probate granted in England. Accordingly, the Court has no jurisdiction to grant representation in Victoria and therefore cannot entertain an application for family provision under Part IV of the Act. Even a grant of administration de bonis non can be made if, but only if, there remain undistributed assets in the estate.
[23]CSD (Queensland) v Livingston [1965] AC 694.

The Plaintiff’s Response

The plaintiff’s answer to the defendant’s propositions, also in summary, was that:

(a) The plaintiff is entitled to bring proceedings under Part IV before any grant of probate or administration or reseal of the UK probate in Victoria. The proceedings are not invalid by reason of the application having been made before any grant of probate or administration, or reseal, although no substantive relief could be granted until after the grant of probate or administration or reseal of the UK probate in Victoria;

(b) The defendant is liable to the plaintiff either because she is duty bound to apply for a reseal of the UK probate in Victoria or because she has intermeddled in the deceased’s estate.

Jurisdiction

The plaintiff submitted that:

(a) On the proper construction of the Act, it is no bar to the institution of proceedings, nor to an order for family provision being made, that these proceedings were instituted prior to a grant of probate or reseal of the UK probate in Victoria. All of the elements constituting the plaintiff’s cause of action occurred prior to the commencement of the proceeding. The making of a Will appointing the defendant as executrix and the death of the deceased are the only essential elements of the cause of action;

(b) Section 99 of the Act does not define the earliest time for making application for family provision, and the position in England when its legislation was similar was established in Re Searle.[24]In that case, it was held that an application under the Inheritance (Family Provision) Act 1938 of the UK was not invalid by reason of the application having been made prior to the date of probate, although no substantive relief could be granted until after the grant of probate (I consider this case in more detail below);
[24][1949] Ch 73, 76 (Roxburgh J).

(c) In any event, the general law countenances that proceedings may be instituted against an executor prior to a grant of administration or probate in circumstances where the executor has intermeddled. The defendant has received the proceeds of the estate’s only valuable asset and has, thereby, intermeddled. Therefore she is amenable to suit even though a grant of probate or administration has not yet been obtained in Victoria in accordance with Re Lovett;[25]
[25](1876) 3 Ch D 198.

(d) In Re Lovett, the plaintiff was a creditor of the deceased and claimed against the executors (who had not proved the Will) administration of the estate, payment of his debt and an injunction restraining the executors from parting with the portion of the estate in their hands. It was held that an action could be instituted against the executors. Malins VC stated that:

The question, then, is, whether this suit can be maintained, first, against the Defendants, who are the executors … As to the first point, it is said that the executors have not proved the will, and that a suit cannot be maintained against them on that ground. If that were the law, then it would be permitting persons to take advantage of their own wrong. A man might get possession of the assets of a testator in his character of executor, and might waste them, and be guilty of any misapplication of the funds, and yet he might not be capable of being sued because he had not proved the will … you may maintain a suit against an executor when he has received part of the assets. The true criterion of the executor’s position is whether he is appointed executor, and whether he has meddled with the estate. If he has, then he can be sued without more. It is distinctly alleged that these Defendants, the executors, have interfered with the estate, and have received a portion of the assets, and consequently they are properly made parties to the suit, although they have not proved the will.[26]

(e) The Defendant, being on notice of the plaintiff’s claim, ought to have procured a reseal of her UK grant under section 81 of the Act, and awaited the institution of proceedings by the plaintiff;

(f) Finally, it is important, as a matter of principle, for a person in circumstances such as the plaintiff to be able to obtain relief under Part IV. Given that no grant has been obtained in Victoria, that the executor has refused to agree to seek such a grant, and that the executor has refused to agree not to distribute the asset of the estate pending the resolution of the plaintiff’s claim, it is unclear what action could have been taken if there is no relief available under Part IV of the Act. Alternatively, and more narrowly, the plaintiff argues that it should be possible to make a claim under Part IV against an executor who has intermeddled despite the fact that a grant is yet to be obtained.

[26]Ibid 204.

No Estate

The plaintiff submits that it is immaterial whether the property was situated within Victoria at the time of the deceased’s death or whether it was brought into the jurisdiction after his death. Regardless of whether the deceased left personal assets in Victoria when he died, the plaintiff submits that the main asset of the estate – that is, the deceased’s interest in his mother’s estate to the value of about $301,000 – subsequently came into the jurisdiction.[27] On this basis, the plaintiff submitted that the Court had jurisdiction to reseal the UK grant of probate under s 81 of the Act (arguing that, at the time the defendant received this asset, it was in her capacity as executrix of the deceased’s estate) and that the defendant ought to have done so and awaited the institution of proceedings by the plaintiff.
[27]Theobold on Wills (Sweet & Maxwell, 15^th ed 1993) 113; In the Goods of Coode (1867) 1 P & D 449, Stubbings v Clunies-Ross (1911) 27 TLR 361.

The plaintiff therefore submitted that the defendant was obliged to apply for a reseal of her UK grant of probate in Victoria because, properly analysed, she received the proceeds of the only valuable asset of the estate in her capacity as executrix of the deceased’s Will and she did so in Victoria. Because the defendant had already been put on notice of the plaintiff’s claim, she was not entitled simply to distribute the estate to herself. By dealing with the estate in disregard of the notice given by the plaintiff, the defendant has intermeddled in the deceased’s estate and, as such, is now required to prove the Will in Victoria by seeking a reseal of the UK grant of probate. The plaintiff contends that if her claim under Part IV is made out, she will be entitled to a distribution out of the estate that the defendant has purported to distribute in disregard of the notice given to her.

The plaintiff relies on Guardian Trust and Executors Co of NZ v Public Trustee of NZ[28] as authority for the proposition that a fiduciary who has received notice that there is a claim on a fund in his or her possession will be liable to the person who has given notice in the event that they deal with the fund in disregard of the notice, should the claim subsequently prove to be well-founded.[29] She also pointed to the observations of McInerney J in Re Jones, that the executor is not at liberty to make a final distribution before the expiration of six months after probate and, if he does purport to make such a distribution, it cannot defeat the power of the Court to make an order that provision be made for the applicant out of the estate which the executor has purported to distribute.[30]
[28][1942] AC 115.
[29]Ibid 127 (Lord Romer).
[30][1978] VR 272, 273.

In these circumstances, the plaintiff argues that the case is not appropriate for summary dismissal. It cannot be said that the plaintiff’s claim has no real prospects of success. The defendant’s summons should be dismissed with costs.

Defendant’s Submissions in Reply

The submission by the plaintiff that the defendant, being on notice of the plaintiff’s claim, ought to have procured a reseal of her UK grant under section 81 of the Act and awaited the institution of proceedings by the plaintiff, provoked a learned response from Mr Boaden, Counsel for the defendant. For completeness, I set out the response in the following paragraphs.

In general terms an executor has a duty both to uphold the Will, and also to seek to achieve a proper compromise in order to reduce ongoing legal costs where there is a proper claim on foot.[31]
[31]See Will of Lanfear (1940) 57 WN (NSW) 181, Re Klease [1972] QWN 44, Szlazko v Travini [2004] NSWSC 610 (Young CJ in Eq).

What has come to be called an executor’s ‘duty of even-handedness’ has been discussed in a number of decisions in New Zealand and one in Victoria. In Irvine v Public Trustee,[32] Cooke P for the New Zealand Court of Appeal expressed the view, without citation or supporting authority, that this duty ‘includes persons entitled or potentially entitled as statutory beneficiaries under the family provision legislation’. In that case it extended to children of the testator, if the executor knew that they intended to make a claim. But the Court did not consider whether the duty applied to persons of whose potential claim the executor ought to have been aware. In MacKenzie v MacKenzie,[33] the judge referred to Irvine as authority for the proposition that the duty extended to claims of which the executor was aware.
[32][1989] 1 NZLR 67.
[33](1998) 16 FRNZ 487.

In Sadler v Public Trust,[34] the Court summarised the current position in New Zealand as follows:

On the authorities as they currently stand, therefore
(a)A duty of even-handedness extends to potential claimants against an estate where an executor is aware that they wish to make a claim (Irvine);
(b) The duty extends to ensuring that an executor does not actively and dishonestly conceal relevant material about the estate from potential claimants who seek information about the estate (MacKenzie);
(c) The duty of even-handedness may extend to those of whose claim the executor ought to be aware, but the exact extent of any such duty has not been defined (Irvine);
(d)Whether there is a general duty of even-handedness that extends to require executors to inform all potential claimants of the fact of death and when such a duty, if it exists, might arise, was left open by this Court in Price v Smith.

[34][2009] NZCA 364 [35].

Dickson v Dickson,[35] dealt with a case in which probate was granted in December 2009. A Part IV claim was commenced 11 months later, in November 2010, by the deceased’s daughter. At the end of the six-month period after the grant of probate, the only property not distributed was a residence in Mill Park. At the time that proceedings were commenced, the property had not been distributed and was still in the estate. Whether the plaintiff had managed to contact the executor, what had been said and whether the plaintiff knew the contents of the Will were all facts in issue. The plaintiff sought to amend her claim to include both principal relief pursuant to Part IV of the Act, and also declarations that the defendant held the property distributed to him as a constructive trustee. Alternatively, the plaintiff sought a declaration that the defendant had distributed the property in breach of his fiduciary duties, it having been unconscionable on his part not to have informed the plaintiff either of the contents of the Will or that probate had been granted. Because the evidence at trial might have shown that the defendant ought to have been aware of the potential claim, and the defendant deliberately avoided speaking to the plaintiff, Emerton J decided that:

… there is an argument that the defendant knew or ought to have known that the plaintiff would wish to make an application for a larger distribution under Part IV of the Act. In my view, therefore, the proposed amendments should not be refused on the grounds that they do not disclose a cause of action.[36]

[35]Unreported, Supreme Court of Victoria, Emerton J, 8 March 2011.

[36]Ibid [20].

The defendant submitted that none of these propositions goes nearly so far as to lay any foundation for the submission that the defendant, being on notice of the plaintiff’s claim, ought to have procured a reseal of the English grant, and awaited the institution of proceedings by the plaintiff. The proper remedy of the plaintiff was to make her application in England, where (until distribution) the valuable asset of the estate was located.

The Victorian Legislation

In contending that the Court had no jurisdiction to entertain the plaintiff’s claim for family provision, the defendant relied on some sections of the Act, whilst the plaintiff relied upon others. Both parties referred to decisions in the UK and other States of Australia interpreting legislation similar to the Victorian provisions. Turning first to the provisions of the Act, the following sections are relevant:

(a) Section 6, which provides:

The Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property whether real or personal within Victoria.[37]
[37]In s 5 of the Act there are definitions of ‘administration’, ‘grant’, ‘estate’, ‘probate’, ‘property’ and ‘will’. It only needs noting for present purposes that the definition of ‘estate’ means real and personal estate, and ‘property’ includes a thing in action and any interest in real or personal property.

(b) Section 90 defines ‘personal representative’ to mean ‘the executor original or by representation or administrator for the time being of a deceased person’. It is common ground that the executor derives title from the Will of the deceased and not from the grant of probate, although the grant provides conclusive evidence of the executor’s appointment and of the terms of the Will.[38]
[38]Ryan v Davies Bros (1921) 29 CLR 527, 536; Mayeppa Chetty v Supramanian Chetty [1916] 1 AC 603, 608 (Lord Parker);Richard George De B Griffith and Ross A Sundberg, Griffith’s Probate Law and Practice in Victoria (The Law Book Co., 3^rd ed, 1983) 10; Richard Boaden (ed) Wills Probate and Administration Service Victoria (LexisNexis Butterworths, 2005) [s 5.65].

(c) Section 91 confers on this Court the jurisdiction to make an order for family provision under Part IV of the Act. So far as relevant, it provides as follows:

(1)Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.
(2)The Court must not make an order under subsection (1) in favour of a person unless—
(a)that person has applied for the order; or
(b)another person has applied for the order on behalf of that person.

(3)The Court must not make an order under subsection (1) in favour of a person unless the Court is of the opinion that the distribution of the estate of the deceased person effected by—
(a)his or her will (if any); or
(b)the operation of the provisions of Part I, Division 6 [the intestacy provisions]; or
(c)both the will and the operation of the provisions—

does not make adequate provision for the proper maintenance and support of the person.

(d) Sub-section 91(4) then sets out the matters to which the Court must have regard in determining whether the deceased had responsibility to make provision for a person, whether the Will or intestacy provision (or both) make adequate provision for the proper maintenance and support of the person and the quantum of any provision.

(e) Section 93 states that ‘[n]otice of an application under section 91 must be served on the personal representative of the deceased and on such other persons as the Court orders.’

(f) Section 97 of the Act governs the contents and effect of an order for maintenance. Sub-section (1) provides that every order making provision for any person shall specify (inter alia) the manner in which the provision shall be raised or paid out of some and what part or parts of the estate of the deceased. Sub-sections (3) and (4) provide:

(3)The Court shall in every case in which provision is made under this Part direct that a certified copy of such order be attached to the probate of the will or letters of administration and for that purpose shall retain in its custody such probate or letters of administration until such copy is attached.
(4)Every order made by the Court under this Part shall subject to the provisions of this Part operate and take effect—
(a)where the deceased dies leaving a will disposing of the whole or any part of his estate—as if the provision made by the order had been made by the deceased by executing a codicil to his will immediately before his death; or

(g) The time within which an application may be made is governed by s 99, which provides, so far as relevant:

No application shall be heard by the Court at the instance of a party claiming the benefit of this Part unless the application is made within six months after the date of the grant of probate of the will or of letters of administration (as the case may be):
Provided that the time for making an application may be extended for a further period by the Court after hearing such of the parties affected as the Court thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall be made before the final distribution of the estate and no distribution of any part of the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon.

(h) Section 99A, which provides protection to personal representatives against certain claims is also relevant. Sub-sections (3) and (4) provide that:

(3)No action shall lie against the personal representative by reason of his having distributed any part of the estate if the distribution was properly made by the personal representative after the expiration of six months after the grant of probate of the will or of letters of administration (as the case may be) and without notice of any application or intended application under this Part in respect of the estate.
(4)For the purposes of this section notice to a personal representative of intention to make any application under this Part shall be in writing signed by the applicant or his legal practitioner and shall lapse and be incapable of being renewed, and the personal representative may act as if he had not received the notice, unless, before the expiration of three months after the day on which he first receives notice of intention to make the application, the personal representative receives notice in writing that the application has been made to the Court:
Provided that nothing in this subsection shall prevent the subsequent making of an application within any other period allowed by this Act.

The first matter to note with regard to the jurisdiction to make family provision orders is that the entitlement is entirely the creature of statute. The only person who can apply for such a provision is the person entitled under the Act to do so and the right does not constitute any species of property, it being a merely personal right.[39]
[39]See Poesch v Grosvero [2013] VSC 596 and the authorities there cited.

My review of the authorities and the legislation, which follows, reveals two matters that are significant to the outcome of the defendant’s application:

(a) First, the Court is given its jurisdiction by s 91 of the Act. The other provisions of Part IV are machinery provisions.[40] Section 99, which contains the limitation period that was important to the defendant’s contentions, is concerned with a matter of procedure rather than the right to relief itself;[41] and

(b) Secondly, and notwithstanding the conclusion just stated, it is implicit in s 91, when read in the context of the Act as a whole, that the Court’s jurisdiction depends on a grant of representation in relation to an estate in Victoria and (from ss 97 and 99) it can neither hear a claim, nor make an order, for family provision unless and until there is a grant of representation in Victoria.

[40]See the observations of Gibbs J in Re Purnell, Decd. [1961] QWN 34 (‘Purnell’), referred to below, and Holmes v permanent Trustee Co of NSW Ltd (1932) 47 CLR 113, 119.

[41]Re Salathiel [1971] QWN 18.

Decisions on Comparable Legislative Provisions
United Kingdom

The starting point in the consideration of the decisions in other jurisdictions is the case of In Re Searle,[42] in which Roxburgh J held that an application for family provision made before there had been a grant of representation could be dealt with by the Court, although no orders could be made unless and until there was a grant of representation.
[42][1949] Ch 73 (‘Searle’).

The relevant legislation was the Inheritance (Family Provision) Act 1938 (UK) (‘UK Family Provision Act’), which provides in s 2(1):

An order under this Act shall not be made save on an application made within six months from the date on which representation in regard to the testator’s estate for general purposes is first taken out.[43]

[43]Emphasis added to highlight the difference between this provision and the corresponding Victorian provision: s 99 of the Act.

In Searle, the testator, George Searle, died on 29 October 1946 leaving a will that made no provision for his wife. On 18 March 1947, the widow applied under the UK Family Provision Act and made the executors and two beneficiaries defendants. Later, on 6 May 1947, probate of the will was granted to the executors.

The Court was asked to determine a preliminary question: whether the application was a nullity because it was made before the period of six months within which application had to be made.[44] By the time the question was raised, six months since the grant of probate had elapsed. Roxburgh J approached the matter, first, in this way:

That any blunder of that sort should completely and finally deprive a litigant of recourse to the court would, I think, challenge the foundations of natural justice. That is one principle by which I propose to guide myself. The other is that the obvious purpose of this section is to prevent applications from being made too late, when the parties have altered their position by treating the dispositions made by the testator as effective. It seems to me improbable that Parliament ever thought of applications which might be made too soon.

[44]Another question before the court is not presently relevant.

Roxburgh J then said:

Bearing those considerations in mind, I propose to construe this section in the following way. It is to be noted, first that the section directs attention of the court not to the application but to the order…The time to look at the matter, it seems to me, is the time when the court is about to make an order, and the court must then see what is the application upon which the order is sought. For that purpose the court looks at the date on which representation was first taken out, in this case 6 May 1947; it then adds six months to that which brings it to 6 November 1947, then it says ‘was the application made before 6 November 1947? ‘ and if the answer is ‘Yes’ then, in my judgment the application was made within six months from the date on which representation in regard to the testator’s estate for general purposes was first taken out.[45]

[45]Ibid 76.

The decision in Searle implies that it is possible for an application for family maintenance to be made prior to the grant of probate or administration, so long as a grant is made prior to the determination of the application. However, the case cannot be relied on as authority for that proposition, for a number of reasons. First, and most importantly, Roxburgh J expressly refused to determine this question, stating:

I am not proposing to decide as a matter of construction whether [starting an application before a grant of probate] is permissible under the rules because it appears to me that if and so far as the only irregularity is under the rules, it is too late to take the point. It is a point of no substance on the merits because, in fact, the very persons who were named as defendants and are described as the persons who claim to be the executors of the will, did, in fact, become the executors, and as it is now too late, in my judgment, for the point to be taken I am absolved from the necessity of deciding it. I wish to say nothing to encourage the idea that applications of this character should be made before the grant of representation, though if somebody is bold enough to try the experiment again and objection is taken in due time, it would be for the court, which has to hear the objection, to decide whether or not the applicant was out of time.[46]

[46]Ibid 76-7.

A case referred to in argument by the defendants in Searle, but not mentioned in the reasons of Roxburgh J, was the matter of In Re Bidie, decd.; Bidie v General Accident Fire and Life Assurance Corporation.[47] That case went on appeal and was decided by the UK Court of Appeal a few months after Searle: see In Re Bidie, decd.[48] In that case, letters of administration had been granted on 13 April 1945 on the basis of an intestacy. However, a Will was subsequently discovered, administration was revoked and probate was granted on 7 September 1946. The plaintiff then applied for a family maintenance order, within the limitation period after the grant of probate on 7 September 1946.
[47][1948] Ch 697
[48][1948] WN 454 (‘Bidie’).

At the time of Bidie, the UK Family Provision Act did not allow for a family provision order to be made in respect of an intestate estate. Initially, Jenkins J held the application to be out of time, using the first grant of letters of administration as the starting point. The Court of Appeal held that the applicant would not have been entitled to make an application until the Will had been found and proved by the grant of probate or administration with the Will annexed. As such, time began to run only on the grant of probate and the application was held to have been made within time.

The decision in Bidie was made in a substantially similar legislative context as the present case. It reflects the more general proposition that a family provision order cannot be made until the grant of probate or letters of administration with Will annexed. In Victoria, the jurisdiction applies equally to circumstances of intestacy. Nonetheless, this general proposition is more relevant to the case at hand than the decision in Searle.

Queensland

The decision in Bidie was referred to with approval by Philp J in Re Jenner, Deceased Nuffer v Jenner.[49] In Jenner, the Full Court of the Queensland Supreme Court considered the question of whether an application for family provision was valid in spite of the fact that no grant of probate had been made, nor was one intended to be sought. The provision under consideration was s 3 of the Testator’s Family Maintenance Acts 1914-1952 (Qld), which relevantly stated as follows:

(1)If any person (hereinafter called ‘the testator’) dies leaving a will and without therein making adequate provision for the proper maintenance and support of the testator’s wife, husband, or children, the court may, in its discretion, on application by or on behalf of the said wife, husband, or children, order that such provision as the court thinks fit shall be made out of the estate of the testator for such wife, husband or children.
…
(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.

[49][1960] Qd R 349, 351 (‘Jenner’).

In Jenner, the Full Court held that the wording of s 3(8) required that a grant of probate be made prior to any order for family maintenance, on the basis that this was the only way in which the Will could be properly ‘proved’. In discussing this requirement, Hangar J, with whom Mansfield CJ agreed, said as follows:

In the absence of a grant of probate Wanstall J. had not before him any sufficient evidence of the contents of the last Will of the deceased and therefore the essential basis for the making of an award was absent. While I think that in theory he may have had authority to enter upon an inquiry and ultimately to make a grant of probate establishing the document, upon a copy of which the parties relied, as the last will, the course which the parties before him elected to take precluded such a course of action; a course which in any case I am sure he would not have taken. The appropriate course, if the provisions of s. 3 (8) permit of it, would have been to adjourn the application to enable a grant of probate to be obtained in the usual way in common form. In the circumstances, I think the order should be set aside, and the application dismissed.[50]

[50]Ibid 355.

I note that this reasoning does not rest on there being any absence of jurisdiction of the Court for the application to be made by commencing a proceeding. It limits the decision to a finding that the Court could not hear the application or make any order in consequence. This is in contrast to the approach taken by Philp J in the same case. Philp J delivered his own reasons, and rested his decision on a wider proposition, saying:

Leaving aside subs. (8) the judge must be satisfied that the will before him is the testator’s last will. … Proof of a will can be made only by the production of the probate—the solemn document issued by the court in its probate jurisdiction after all the requirements of law concerning proof of a will have been complied with. I include in the word ‘probate’ as I have use it here letters of administration cum testamento annexo.
…
Apart from the necessity of having before him a properly proved will subs. (8) contemplates that there must in fact be a probate in existence before the application is made. Here the word ‘probate’ would probably be construed as including a grant cum testamento annexo. An application before probate would seem to be a nullity. The matter was considered in In re Searle ([1949] 1 Ch 73) but I come to no conclusion on the matter.[51]

[51]Ibid 350-1.

Philp J then considered a case cited in Searle (the decision in Bidie), and noted that it was overturned by the Court of Appeal,[52] which held that the time for application for family provision ran from grant of probate. He quoted Lord Greene MR, who said it was not competent for the widow to apply under the UK Family Provision Act until the Will was found and proved, and no application could be made without a Will and probate. Philp J concluded:

In my view the existence of a will and a probate (which term probably includes letters of administration cum testament annexo) is essential to the exercise of the jurisdiction under the Act.[53] (emphasis added)

[52]See [1948] WN 454.

[53]Emphasis added.

Shortly after Jenner, Gibbs J (as he then was) also considered the Queensland provision in Purnell.[54] In that case, the application for family provision preceded the grant of probate (although that was because of a delay in the court sealing the grant). Gibbs J held that the proceedings were not instituted within six months of the date of the grant in Queensland of the probate of the Will, but the power given to the court in s 3(8) to ‘otherwise direct’, gave power to the Court to direct that an application be heard not only if the proceeding were instituted after the expiration of the six months period, but also if they were instituted before probate was granted. He went on to observe:

The Court is given its jurisdiction to determine applications by s 3(1) of The Testator’s Family Maintenance Act of 1914, not by s 3(8), which is a machinery provision (cf Holmes v Permanent Trustee Company of New South Wales Limited (1932) 47 CLR 113 at 119). The jurisdiction under s 3(1) depends inter alia on the existence of a will, but, once probate has been granted, the existence of a valid will taking effect from the testator’s death is conclusively evidenced. After a grant has been obtained, therefore, I can see no reason why the Court should not in a proper case direct that an application be heard notwithstanding that the proceedings were instituted before probate was granted. Of course the Court would not so direct until probate had actually been granted.

[54][1961] QWN 34.

The decisions in Searle and Jenner, and other decisions, were referred to in argument before Gibbs J. His reasoning, in my view, reflects the decision of the majority in Jenner, whilst giving full effect to the power to ‘otherwise direct’ so as to achieve substantial justice whilst nevertheless obeying the commands of the Statute.

Some ten years later, the Full Court of the Supreme Court of Queensland (Hanger CJ, Hoare and W.B. Campbell JJ), in Re Salathiel,[55] considered an appeal from a decision of a primary judge in an application for family provision where, on appeal only, the jurisdiction of the primary judge was challenged. The challenge was made on the basis that the application for family provision had been made outside the period of six months from the date of the grant of probate. The Court held that s 3(8) of the Queensland legislation (see above) was procedural and did not form a part of the jurisdiction of the Court in the application of the family provision. The Court concluded that:

(a) Section 3(1) of the Queensland Act is the foundation of the Court’s jurisdiction and rests upon a person dying leaving a Will and failing to make proper provision for the applicant; and

(b) Section 3(8) does not extinguish the right to claim relief but, in providing that no application shall be heard by the Court, simply bars the remedy if the application is not made within the six months or such other time as the Court may direct.

[55][1971] QWN 18 (‘Salathiel’).

In other words, the Court observed, s 3(8) is a statute of limitations and therefore a matter of procedure.

South Australia

The decision of the High Court in Holmes v Permanent Trustee Company of New South Wales Limited,[56] to which Gibbs J referred in Purnell, concerned the dismissal of an application for family provision in the Northern Territory where the application was based upon a reseal in the Northern Territory of probate previously granted in the Supreme Court of New South Wales. The application was dismissed because of the erroneous view of the trial judge that it was necessary for probate to have been granted in the Northern Territory. It was the South Australian legislation that was applicable in the Northern Territory, and Rich J pointed out that the reseal in the Northern Territory of the New South Wales probate had like force and effect and the same operation in the Northern Territory as if it had been originally granted by the Supreme Court of South Australia.
[56](1932) 47 CLR 113, 119 (‘Holmes’).

Section 5 of the South Australian legislation, considered in Holmes, provided that an application for a family provision order shall not be heard by the Court unless the application is made within six months after the date of the grant of probate. Rich J made the following observation about s 5:

Sec. 5 does not create substantive rights. It is merely a machinery section. It insures, on the one hand, that time shall not run against the application until there is someone who can represent the estate in the Northern Territory, and, on the other hand, that any application shall be made within a reasonable time after a representation is constituted (fixed at six months). This is secured just as much by resealing as by an actual grant. There is no difference between actual probate and constructive probate material for the purposes of the Testator’s Family Maintenance Ordinance.

Another case relied on by the defendant is Burns v Elder’s Trustee and Executor Co Ltd (‘Burns’).[57] In that case, the applicant had instituted proceedings for a family provision order ten days after the expiry of six months after the date of grant. Section 4 of the South Australian Testators Family Maintenance Act 1918-1943 provided that an application under the Act must be made within six months from the date of the grant in South Australia of probate of the Will, or letters of administration with the Will annexed, of the estate of the testator.
[57][1968] SASR 297.

However, s 47 of the South Australian Limitation of Actions Act provided that, where any Act required that a proceeding be brought within six months of the cause of action arising, the cause of action may be brought within 12 months of the time when the cause of action arose, so long as the plaintiff gave notice to the defendant within the six month limitation period. Thus, in Burns, Mitchell J (as Dame Roma Mitchell then was) was required to consider whether the plaintiff’s cause of action arose at the time of the death of the deceased, or at the grant of probate.

In determining whether the applicant was required to apply for an extension of time to file the application, Mitchell J considered Roxburgh J’s decision in Searle, as well as the Queensland decisions in Jenner and Purnell. Her Honour set out the approach of Roxburgh J in Searle to which I have referred above,[58] noting his reference to it being a ‘challenge [to] the foundations of natural justice’ to deprive the plaintiff of recourse to the Court because of a ‘blunder’. Mitchell J said that this may merit the comment that ‘hard cases make bad law’.
[58]See paragraph 51 above.

Her Honour preferred the interpretation adopted by the Court in Jenner and Purnell to that of Roxburgh J in Searle. She said:[59]

The plain meaning of s 4 [of the South Australian legislation] is, in my opinion, that the application is to be made after the grant of probate but within six months thereof.

[59][1968] SASR 297, 300.

In deciding when the cause of action arose, Mitchell J adopted the conventional legal meaning of ‘cause of action’, so that the plaintiff’s cause of action arose when she was 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 her right to judgment. One essential fact that had to be proved in order for a plaintiff in a family provision proceeding to have a right to an order was that probate of the Will of the testator had been granted to the defendants.

Western Australia

In Ruwolt v Drake-Brockman,[60] the relevant provision was s 7(2) of the Inheritance (Family and Dependants Provision) Act 1972 (WA), which provided:

No application under subsection (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.

[60]Unreported, WA Supreme Court, Master Ng, 29 March 1996 (‘Ruwolt’).

In that case, Master Ng made the following remarks:

It is true that s. 7 does not expressly prohibit an application being brought prior to an application made for grant of representation. Section 7(2) states that no application under subsection (1) shall be heard unless it is made within six months from the date on which the administrator became entitled to administer the estate or within such time as may be extended by the Court. Until then the right to apply does not arise. Whilst there is nothing to stop an applicant from applying before a grant of probate is made, the application will have no juridical effect. The right to apply is a statutory right vested under s. 7 which prescribes the time within which an application may be made and heard. Until a grant of representation has been made, a cause of action does not arise and the Court has no jurisdiction to make orders affecting title to property belonging to the deceased.[61]

[61]Ibid [7].

It was held that the application was premature and incompetent and should be dismissed, and a fresh application should be made within the time prescribed by s 7 after probate had been granted.

Current provisions in NSW and Queensland – A contrast

In 1982, the New South Wales family provision legislation was amended by the Wills, Probate and Administration (Family Provision) Amendment Act 1982 (NSW), which introduced s 41A into the Wills, Probate and Administration Act 1898 (NSW). It provided that:

(1)The Court shall have jurisdiction to grant administration in respect of a deceased person in order to permit an application to be made under the Family Provision Act 1982, where it is satisfied that it is proper to make the grant, whether or not the deceased person left property in New South Wales.
(2)A grant of administration made as referred to in subsection (1) shall be for the purposes only of making an application under the Family Provision Act 1982.
(3)The Court may grant administration in respect of a deceased person as referred to in subsection (1) to any person who it is satisfied is an eligible person within the meaning of the Family Provision Act 1982, or to any person who it is satisfied intends to make application under that Act on behalf of such an eligible person.[62]

[62]In 2008, the NSW family provision legislation was repealed by s 5 of the Succession Amendment (Family Provision) Act 2008 (NSW). Chapter 3 of that Act now deals with family provision from deceased estates.

This amendment introduced a major variation to the law at the time, and with it the New South Wales law has fundamentally departed from Victorian law. However, even though in New South Wales it became possible for family provision claims to be commenced before a grant is made, subsection (1) qualified the power of the Court to make a grant with the words ‘where it is satisfied that it is proper to make the grant, whether or not the deceased person left property in New South Wales.’ It is implicit in this qualification that, for a family provision order to be made, there needed to be a grant in New South Wales.

This is made clear by the judgment of Hodgson J dealing with (what were then) the new provisions in New South Wales. In Leue v Reynolds,[63] Hodgson J said:

Section 7 does say that an order can only be made on ‘an application in relation to a deceased person in respect of whom administration has been granted’. However, it does not say that the application must bear that description from its inception. In my view, so long as an application can, at the time an order is made, correctly be described as an application in relation to a deceased person in respect of whom administration has been granted, the requirements of s 7 are relevantly satisfied. …
Accordingly, I think that an order can be made under s 41A for the purposes of an application under the Family Provision Act which was commenced prior to the making of the s 41A order. Any other view could, I think, tend to defeat the purpose of s 41A. …[64]

[63](1986) 4 NSWLR 590.

[64]Ibid 596-7 (emphasis added).

Hodgson J continued:

True it is that the Court could not make an order under the Family Provision Act until it had first made an order under the Wills, Probate and Administration Act, s 41 A, but as I have said, all the facts entitling the plaintiff to both those orders had occurred prior to the commencement of the proceedings.[65]

[65]Ibid 598.

Although the legislation was quite fundamentally different from that in Victoria, it is clear from that legislation, and from Hodgson J’s judgment, that the jurisdiction to make a family provision order was still firmly premised upon there being a grant of representation in the jurisdiction of the Court that was to make the family provision order.

In 2008, the applicable legislation in NSW was further amended to completely overhaul the legislative scheme relating to family provision. Family provision orders in NSW are now governed by Chapter 3 of the Succession Act 2006 (NSW). Key differences between this Act and the Victorian legislation are that it is explicit that an application for family maintenance can be made prior to the grant of administration,[66] and the time within which application must be made begins to run from the date of death of the deceased.[67]
[66]Succession Act 2006 (NSW) s 58(1).
[67]Ibid s 58(2).

In Wheat v Wisbey,[68] Hallen J considered the new regime in NSW at length, and determined that it is not necessary for a grant of representation to be made before an order for family provision can be made. In particular, s 91 of the Succession Act provides for the Court – if satisfied that it is proper to do so – to grant administration for the purposes of permitting the application for family maintenance to be dealt with. In considering this provision, Hallen J held that there would be circumstances in which it was ‘proper’ to make such an order under s 91, and circumstances in which it was not. However, his Honour held that the making of a family provision order was independent of the decision whether to grant probate or administration under s 91.[69]
[68][2013] NSWSC 537.
[69]Ibid [57].

In Queensland, the legislative position has similarly been amended to allow for a maintenance order to be made irrespective of whether there has been a grant of probate or administration. In particular, s 41(8) of the Succession Act 1981 (Qld) states that:

Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made.[70]
[70](emphasis added).

Consideration
Jurisdiction

The defendant’s contention that an application cannot be made under Part IV of the Act unless there has been a grant of representation in Victoria is, in my view, correct. That is because it is implicit, although not express, in the legislation that there must be a grant of representation in Victoria before the Court has jurisdiction in relation to an application under Part IV. This is evident from:

(a) Section 6 – which limits that grant of representation to persons leaving property in Victoria – read with s 91 – which empowers the Court to order that provision be made out of the estate of a deceased person. That ‘estate’ can only be the subject of a family provision order where there is both property and a grant of representation in Victoria;

(b) Sub-sections 97(3) and (4), which require a certified copy of the order to be attached to the grant and to operate as a codicil or a modification of the intestacy provisions. This shows that the Court is concerned only with grants made in Victoria. The procedure for a copy of the order to be attached to the original grant of probate enables a search at the Probate Registry to show that the effect of the Will has been altered by the order. It is self-evident from these provisions that the power is limited to Victorian grants of representation and is not applicable to, for example, probate granted in South Australia, in relation to which the Victorian Court would have no power to alter the grant. Thus, the provision requiring the order to be attached to the grant itself indicates that, in order for the application to be within the jurisdiction, there must be a grant of representation in Vitoria;

(c) Section 99(1), which provides that no application shall be heard by the Court ‘unless the application is made within six months after the date of the grant of probate of the Will or letters of administration’. As Rich J said in Holmes, this prevents time from running against the application until there is someone who can represent the estate in Victoria. Even though it is properly characterised as a limitation section, it is a part of, and fits into, a regime that is wholly built on the assumption that a grant of representation is a necessary prerequisite to an application for, a hearing in relation to, and an order of, family provision;

(d) Section 99A, which provides that no action shall lie against the personal representative by reason of his having distributed any part of the estate if the distribution was properly made by the personal representative ‘after the expiration of six months after the grant of probate of the will or of letters of administration’ and without notice of any application or intended application under this Part in respect of the estate. Clearly, the sub-section proceeds on the basis that a grant of representation is a prerequisite to an application for family provision and is also consistent with the time period prescribed in s 99.

In Project Blue Sky Inc v Australian Broadcasting Authority,[71] four members of the High Court noted that:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.[72]

[71](1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby & Hayne JJ).

[72]Citations omitted.

In addition to these purely statutory indications, there are further matters that persuade me that this is the correct construction, as follows:

(a) The decisions in Jenner, Burns and Ruwolt,[73] in particular, show that the jurisdiction to make a family provision application and order is firmly premised upon there being a grant of representation in the jurisdiction of the Court that is to make the family provision order;

(b) Without a grant of representation in Victoria, there is no valid proof of the Will of the deceased. Thus, a Court exercising family provision jurisdiction can do so only where there has been a grant of representation made within the jurisdiction of the Court. That is obviously the case where the legislation expressly says that there has to be a grant within the relevant State. It is also apparent from the fact that legislation was needed to change the position in New South Wales to bring about the situation that orders could be made before a grant had been made.

[73]As well as other cases such as Leue v Reynolds (1986) 4 NSWLR 590, 596–7.

The decisions in Holmes, Purnell and Salathiel are also of significance in the present context. There is no material difference between the wording of the Queensland s 3(8), considered in those cases, and the first part of s 99 of the Act. It is thus clear that s 99, does not itself define or limit the jurisdiction of the Supreme Court, but is a procedural provision in the nature of a statute of limitations. Nevertheless, the terms of s 99 are an important element that confirms rather than defines the unstated assumption in s 91 that there must be a grant of representation in Victoria before there can be an application under s 91.

As to the meaning of s 99, the natural and ordinary meaning of the words ‘the application is made within six months after the date of the grant’ define a period. The application (that is, the application made by the Originating motion) must be made within a period between two dates. The starting date is the date of the grant of representation. The closing date is six months after that date.[74] This construction accords with the interpretation of other expressions using ‘within’ to define periods of time.[75] The New Shorter Oxford English Dictionary defines ‘within’, when used to express temporal limits as:

(a)before the end of (a period)…; (b) between the beginning and end of (a period).

[74]Section 44 of the Interpretation of Legislation Act1984 (Vic) provides various rules for the calculation of the period, including that the particular day from which the period is to be reckoned is not included in the period.

[75]See, eg, Morton v Hampson [1961] VR 364.

I did not understand Mr Boaden of Counsel, who appeared for the defendant, to contend that s 99 operated directly as a limit on the jurisdiction of the Court. Rather, the contention is, as I set out above, that it is implicit in s 91, and consistent with the language and purpose of the other provisions to which I have referred, that there has been a grant of representation in Victoria (for the Court to have jurisdiction to make any order) and that, because of s 99, the application could not be heard unless it came after a grant of representation and within six months of that grant.

By contrast, the plaintiff pointed to s 93, which requires notice of an application under s 91 to be served on the personal representative of the deceased. She argued that the definition of ‘personal representative’ in s 90 means the executor under the Will, and it is fundamental that the executor derives title from the Will. It follows that an application under Part IV may be validly commenced before any grant of representation by commencing it against, and serving notice of it on, the executor named in the Will. The plaintiff then said that s 99 does not define the earliest time for making an application under Part IV, only the latest time, relying on the reasoning in Searle.

The decision of Roxborough J in Searle is, as I have pointed out, problematic. In the first place he interpreted the UK provision and applied it to the facts before him in a way that allowed an application made before the grant of representation where the order is made after the grant of representation. His reasoning attracted Mitchell J to comment that this was a case of ‘hard cases make bad law’. He then went on to say that he did not propose to decide as a matter of construction whether starting an application before a grant of probate is permissible under ‘the rules’,[76] and said that he wished ‘to say nothing to encourage the idea that applications of this character should be made before the grant of representation’. It is for this reason that Searle should not, in my opinion, be relied on as authority for the proposition that an application for family provision can be validly made before a grant of representation.
[76]I note that the provision prescribing the time within which application must be made was a provision of the UK Act and not the rules.

The other authorities referred to above generally support the interpretation of Part IV as implicitly requiring a grant of representation before the jurisdiction of the court to deal with an application is enlivened. First, in Ruwolt and Burns it was held that no cause of action under the relevant legislation arose until the grant of probate or administration. To similar effect is the UK Court of Appeal decision in Re Bidie. Mitchell J in Burns proceeded, perhaps, on the footing that the provision equivalent to s 99 was ‘jurisdictional’, although her conclusion is consistent with a construction of the kind I have adopted. Thus, the decision of Mitchell J in Burns supports the conclusion that the jurisdiction of the Court in relation to family provision applications is dependent on the existence of a grant of representation.

The decision in Jenner, on the other hand, does not make clear whether an application for family provision that is made prior to the grant of probate or administration will be within the Court’s jurisdiction (on the provisions then existing in Queensland). This is because in Jenner it was suggested that it was open to the trial judge to embark upon an enquiry and grant probate of the Will prior to determining the application for family provision. It seems to me that the majority in Jenner expressed this view on the basis that the Queensland provision included a wide power of dispensation; that is, the very important opening words of s 3(8) ‘[u]nless the court otherwise directs’. In the minority view of Philp J, however, it was clear that a grant of representation was essential to the jurisdiction of the Court.

It is also clear from all of the cases that a grant of representation must be made before a Court can determine an application for family provision. In all of the above cases – save for those under the current New South Wales and Queensland regimes, to which I will return – it was considered necessary that the Will be proved before any decision could be made in relation to the application for family provision.

The current, contrasting, position in Queensland and New South Wales is illuminating, in that such a drastic departure from the regime throughout Australia was required in order to reverse the common law requirement that a grant of probate or administration be made prior to an order for family provision. The current regimes in Queensland and New South Wales stand alone, differing greatly from those in other States.

By her reliance on Re Lovett, the plaintiff appears to be arguing that the Court has jurisdiction in this matter on the basis that the defendant has brought property of the estate into Victoria, and cannot escape liability on the basis that she has failed to apply for a grant of probate or administration in this jurisdiction. In my view, Re Lovett is clearly distinguishable from this case.

In Re Lovett, the claims were made by a creditor against executors who had not proved the Will of the deceased but had intermeddled. The claim was for an administration of the deceased estate in the Court. There is no such claim here. It is and remains only a claim under Part IV. The plaintiff’s Counsel, Dr Hardingham QC, who appeared with Mr McKenzie, did not seek to amend the initiating process so as to raise that, or any other, claim against the defendant and indicated he did not intend to do so.[77]
[77]See transcript of argument, 30 September 2014, 7.22-5.

There is another reason for not following the decision in Re Lovett. In Nagel v Hough,[78] the deceased had died domiciled in Queensland, and a grant of probate had been obtained in that State by the defendant executor. The plaintiff was the deceased’s former wife, and both she and the defendant were resident in New South Wales. The defendant admitted to having £500 of the deceased’s estate in his possession in New South Wales. However, no application had been made for resealing the Queensland grant of probate in New South Wales.
[78](1927) 27 SR (NSW) 418 (‘Nagel’).

In that case, the plaintiff applied to the Supreme Court of New South Wales for an order for a debt claimed to be owed to her by the deceased to be paid out of the money held by the defendant. In rejecting her application for want of jurisdiction, Long Innes J relied on the principle that the operation of a grant of probate is purely territorial and local. His Honour discussed English authorities to the effect that a foreign executor who brings property of the estate within the jurisdiction is liable to creditors of the estate neither as executor nor in his personal capacity. The only exception to this general principle is where the executor has acted in such a way as to make himself a trustee of the property brought into the jurisdiction.[79]
[79]Ibid 423.

His Honour distinguished Re Lovett on the basis that, in that case, there were assets of the deceased’s estate within the Court’s jurisdiction at the time of the deceased’s death. Furthermore, also within the jurisdiction of the Court were executors de son tort, who were acting as agents of the foreign executors. Neither of these factors being present in Nagel, his Honour did not consider the principle in Re Lovett to be applicable. Long Innes J said:

It is obvious that the present proceedings also are framed against the defendant, not as a trustee under a declaration of trust which he has himself made, or as trustee by virtue of some acts which he had himself performed; but for the administration of the trust reposed in him as executor, and I think that [Ewing v Orr Ewing], amongst others, is authority for the proposition that until probate is resealed in this estate, this Court will not regard him as an executor.[80]

[80]Ibid 424.

His Honour went on to find that:

In the circumstances I must hold that this Court has no jurisdiction to entertain this suit, and it, therefore, becomes unnecessary to consider whether the orders in question have, or either of them has, given rise to a debt at all. On that I express no opinion. I suppose that will be a matter for the Queensland Judges to determine. Although I regret that the plaintiff should have taken the wrong course and subjected herself to expense, I am afraid I cannot make an exception in her favour, and no reasons have been urged why I should; holding, as I do, that I have no jurisdiction to entertain this summons, it must be dismissed with costs.[81]

[81]Ibid 426.

The grant of probate is local and territorial, and will not, as a matter of course, be recognised outside the jurisdiction in which it is granted. If the deceased died leaving no property in Victoria, there is no estate in Victoria in respect of which a grant of representation may be made. The defendant, having been appointed executor in England, is not recognised as such by this Court without a resealing of the grant of probate in this jurisdiction.

Overall, I do not consider that any cause of action arises under Part IV of the Act prior to the grant of representation. This conclusion provides a sufficient basis on which to grant an order dismissing the proceeding and giving judgment for the defendant on the ground that the originating motion does not disclose a cause of action, pursuant to Order 23 of the Rules.

No Assets[82]

[82]The respective contentions of the defendant and plaintiff are set out above at paragraphs 31 to 32 and 35 to 38.

The defendant maintained that, even if the Court had jurisdiction in the application, no order under Part IV could be made because there was no estate (that is, there were no assets) in Victoria at the date of the death of the deceased and there has been no property of the estate since brought into Victoria. There is, therefore, no estate in Victoria in respect of which a grant of representation could be made, now or in the future. In consequence, there could be no possibility of a ground for making an order under Part IV now or in the future. There is, therefore, no real prospect of success of the proceeding

In relation to this contention, there are two difficulties facing the defendant. The first is that the authorities to which the plaintiff referred establish a basis for the argument that it is immaterial whether the property was situated within Victoria at the time of the deceased’s death or whether it was brought into the jurisdiction after his death.[83]
[83]Theobold on Wills (Sweet & Maxwell, 15th ed 1993) 113; In the Goods of Coode (1867) 1 P & D 449; Stubbings v Clunies-Ross (1911) 27 TLR 361.

The second is that the factual foundation for the contention that there was no estate in Victoria at the time of death of the deceased, and that none has come into Victoria since, turned on the evidence that the only asset of the estate was the right to due administration of the deceased’s mother’s estate in the UK, and that the payment to the defendant of about $301,000 was made to her in her capacity as sole beneficiary. There are disputes as to these matters that cannot be resolved at this stage of the proceeding. The disputes are:

(a) As to the character in which the defendant received the proceeds of the sale of the asset in the estate of the deceased’s mother in the UK. The defendant says she received as the sole beneficiary under the Will of the deceased. The plaintiff says it was received in the defendant’s capacity as executrix. This resolution of this issue requires further evidence and is inappropriate to be decided on the present material at this stage;

(b) As to the existence of personal property the subject of the affidavit of Peter Julian Connor. There is evidence in this affidavit that there are items of personal property in Victoria of uncertain value. It may turn out, as the defendant in effect submitted, that this personal property is of no real value. But that remains to be seen.

It is unnecessary to deal with the plaintiff’s contention that the defendant, being on notice of the plaintiffs claim, ought to have procured a reseal of her UK grant under section 81 of the Act, and awaited the institution of proceedings by the plaintiff, and the learned response on the matter from the defendant. It seems to me that this raises a much larger question than needs to be decided in this application. That question is whether the plaintiff has a right of action against the defendant either for intermeddling in the estate or for breach of a duty or obligation to have procured a reseal of her UK grant. As I have said, there is no such claim made in the proceeding and no application was made by the plaintiff to amend her Originating Motion to raise any claim additional to the claim under Part IV.

In light of the proceeding being confined to an application under Part IV, and the view to which I have come that there is no jurisdiction in the Court to deal with that claim unless and until there is a grant of representation, there is no reason to embark on the very interesting but difficult questions raised by the plaintiff and contested by the defendant in argument.

Conclusion

In light of these reasons, I have concluded that the court has no jurisdiction in relation to the application under Part IV unless and until there is a grant of representation in Victoria.

It is important to observe that the only claim made in the Originating Motion is an application under Part IV of the Act. The plaintiff’s submissions in answer to the defendant’s contention that the Court lacked jurisdiction (apart from contesting the construction of the Act advanced on behalf of the defendant) proceeded on the footing that a claim was available to the plaintiff against the defendant on the basis that she has intermeddled in the estate of the deceased or was duty bound to make application for a grant of representation in Victoria. The plaintiff did not seek to amend the initiating process so as to raise that, or any other, claim against the defendant and indicated she did not intend to do so.[84]
[84]See transcript of argument, 30 September 2014, 7.22-5.

Having regard to the plaintiff’s stated intention of commencing proceedings to compel the defendant to obtain a grant of representation if she fails to take that step herself,[85] it is appropriate to dismiss the proceeding and leave the plaintiff to the pursuit of her rights to compel the defendant to obtain a grant of representation in Victoria, if she can, and then to make application under Part IV within the time limits prescribed by s 99 of the Act.
[85]See transcript of argument, 30 September 2014, 17.29-31.

[2015] VSC 52

27 February 2015