Poesch v Grosvero

The case of Poesch v Grosvero involved the plaintiff, who had been declared bankrupt, bringing a claim for family provision under Part IV of the Administration and Probate Act 1958 against the estate of her deceased brother. The defendants, the executors of the deceased's estate, applied for a stay of the proceedings under section 60 of the Bankruptcy Act 1966. The central issue before the court was whether the plaintiff's cause of action for family provision vested in the Official Receiver as the trustee in bankruptcy, thereby staying the proceedings under the Bankruptcy Act.

The court examined the relevant provisions of the Bankruptcy Act and concluded that the right to claim family provision under Part IV did not constitute property within the meaning of the Bankruptcy Act. The court held that the property of the bankrupt, as defined in section 5 of the Bankruptcy Act, did not include the right to make a claim for family provision. Consequently, the plaintiff’s cause of action did not vest in the trustee in bankruptcy. The court further determined that the proceeding was not stayed under section 60 of the Bankruptcy Act, and the trustee had no right of election under section 60(2) of the Bankruptcy Act.

In light of these findings, the court directed that the family provision proceeding should be advanced. This decision ensures that the plaintiff could pursue her claim for family provision despite her bankruptcy, without interference from the trustee in bankruptcy. The court's ruling clarified the interplay between family provision claims and bankruptcy, emphasising that the right to seek family provision is distinct from the bankrupt's property.