Walker v Walker

[2022] ACTSC 269

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Walker v Walker

Citation:

[2022] ACTSC 269

Hearing Date:

30 September 2022

DecisionDate:

30 September 2022

Before:

Elkaim J

Decision:

(a)    The application in proceeding filed by the plaintiff is dismissed.

(b)    I make order 1 in the application in proceeding of the defendants filed in Court today.

(c)    In relation to costs, I order that each party bears their own costs of the application.

Catchwords:

CIVIL LAW – Wills and Estates – whether separate person should be appointed as administrator to avoid conflict – what is best savings and most efficient way to proceed

Legislation Cited:

Family Provisions Act 1969 (ACT)

Parties:

Briohny June Walker ( Plaintiff)

Janet Margaret Walker ( First Defendant)

Janet Margaret Walker in her capacity as executor of the estate of Joseph Walker ( Second Defendant)

Representation:

Counsel

G Blank ( Plaintiff)

W Sharwood ( First and Second Defendants)

Solicitors

Farrar Gesini Dunn ( Plaintiff)

KJB Law ( First and Second Defendants)

File Number:

SC 442 of 2021; PRO 681 of 2021

Elkaim J:

1. This matter arises from a dispute about a will that was executed in 2018 and also a property transaction that occurred at a different time. The defendant is the widow of the deceased and the executor of the will. The plaintiff is the daughter of the deceased. The plaintiff wishes the will and property transaction to be set aside. So far it is a standard dispute about the validity of a will and a particular transaction.

1. However, complications arise because the plaintiff has a Family Provisions Act 1969 (ACT) (Family Provisions Act) application and so too does the defendant. The latter application would only become relevant if the defendant failed in defending the will.

1. There are two applications in proceeding before me. The plaintiff makes an application filed on 15 September 2022 that there be a separate person, Ms Binstock, appointed as administrator in order to avoid a conflict that will arise between the position of the defendant as the executor and making the Family Provisions Act application.

1. The defendants’ application, filed in court today, is that the Family Provisions Act application brought by the first defendant should be severed and heard at a later time. The logic in that is that if the will application fails, then there will be no need for the Family Provision Act application. Accordingly, there may be a saving of costs. It is asserted there will also be a saving of costs as there will be no need to have the appointment of Ms Binstock.

1. The resistance to Mr Sharwood’s suggestion arises from the fact that there will be an overlap of issues in all of the matters so that there will be a saving of costs and time achieved by having all the matters heard together.

1. Initially it was thought by the plaintiff, and it was also my impression, that both Family Provisions Act applications were the subject of Mr Sharwood’s application. However, it is only that of the first defendant.

1. To some degree, this is a matter where there is an unknown as to which procedure would be most efficient. Ultimately however I think that the best savings and the most efficient way to proceed would be in adopting the position put forward by Mr Sharwood, because at least in the first instance it does not entail appointing Ms Binstock and all the costs that would be attendant on that.

1. Mr Blank frankly said he did not know if Ms Binstock would brief counsel. Although, having regard to the responsibility Ms Binstock would be taking on, as well as the complexity of issues and the size of the estate, counsel would likely be briefed. Costs of that procedure would be quite extensive.

1. I make the following orders:

(a)The application in proceeding filed on 15 September 2022 by the plaintiff is dismissed.

(b)I make order 1 in the application in proceeding of the defendants filed in court today.

(c)In relation to costs, I order that each party bears their own costs of then respective applications.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: