Yancic v Yancic - [2010] SASC 335

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
YANCIC v YANCIC & ANOR
[2010] SASC 335
Reasons of Judge Burley a Master of the Supreme Court
30 November 2010
PROCEDURE
Service of proceedings - claim by plaintiff pursuant to Inheritance (Family Provision) Act 1972 - six month time limit - proceedings required to be issued and served within six months of grant of probate - no personal service effected within six month period or at all - documents left at defendants' solicitor's office - no instructions to accept service - orders sought dispensing with personal service and deeming delivery of papers to the defendants' solicitor to be sufficient - application refused.
Inheritance (Family Provision) Act 1972 s 7, s 8 and s 14; Supreme Court Civil Rules (2006) r 66 and r 67, referred to.
Blunden v Blunden & Anor [2008] SASC 286, considered.

YANCIC v YANCIC & ANOR
[2010] SASC 335
JUDGE BURLEY:

The plaintiff seeks an order for further provision out of the estate of his mother, pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (“the Act”). The defendants are the executors named in the will of the deceased, which was made on 8 October 2003. Probate was granted to the defendants on 22 February 2010.
By application filed on 16 September 2010 (FDN5), the plaintiff sought directions from the Court relating to service of these proceedings and for injunctive relief.
The estate of the deceased consisted of both real and personal property. Under her will, the deceased left the real property to the defendants and the residue to each of her four children, including the plaintiff, in equal shares. It is common ground that prior to any notification by the plaintiff to the defendants of a claim pursuant to the provisions of the Act, the defendants, on 13 April 2010, transferred to themselves the real property, namely the property situated at 54 Napoleon Street, Port Lincoln.
The injunctive relief
The plaintiff seeks to restrain the defendants from distributing the residue of the estate. According to the affidavit of Mr Fabbro, the defendants’ solicitor, his firm holds just over $14,000 in its trust account. It is the distribution of this fund which the plaintiff seeks to restrain, apart from the payment of the legitimate liabilities of the estate.
The plaintiff has also sought an order restraining the defendants from dealing with the Port Lincoln property. It is apparent from the affidavit evidence that the plaintiff lodged a caveat on this property claiming an interest in it. That caveat has not been warned by the defendants. It therefore seems to me that, unless and until the defendants warn the caveat, there is no need to grant an injunction restraining the defendants from dealing with the property. I therefore propose to refuse the plaintiff’s application for injunctive relief to that extent.
As to the residue, the defendants accept that they should not make any payments to the beneficiaries entitled to the residue. Both parties accept that the proper…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yancic v Yancic

Details

AGLC: Yancic v Yancic [2010] SASC 335
Case: [2010] SASC 335
Decision Date: 30 November 2010

CaseChat Overview and Summary

The case of Yancic v Yancic [2010] SASC 335 involves the plaintiff, Yancic, who seeks an order for further provision from the estate of his deceased mother, pursuant to the Inheritance (Family Provision) Act 1972. The defendants are the executors of the will, who had already transferred the real property of the estate to themselves prior to any notification of the claim. The plaintiff seeks to restrain the defendants from distributing the residue of the estate, as well as an injunction to prevent them from dealing with the property at Port Lincoln. The court was required to decide on the validity of the service of the proceedings and the application for injunctive relief.

The court found that the defendants had not been personally served with the proceedings within the six-month time limit required by the Act. The plaintiff had attempted to serve the defendants by leaving copies of the summons and affidavit with the defendants' solicitor, but the solicitor had no instructions to accept service on behalf of the defendants. The court considered the relevant provisions of the Inheritance (Family Provision) Act 1972 and the Supreme Court Civil Rules 2006. The court also took into account the decision in Blunden v Blunden & Anor [2008] SASC 286, which discusses the consequences of early distribution of an estate.

The court concluded that dispensing with personal service and deeming the service on the defendants' solicitor to be sufficient would not be appropriate. The court emphasised that the plaintiff had not complied with the statutory requirements and had left the service attempt until the last minute. The court also found that the early distribution of the estate, while potentially unlawful, did not affect the court's discretion to decide whether or not to dispense with personal service. Ultimately, the application for orders in terms of paragraphs 1 to 4 of the application dated 16 September 2010 was refused.

Orders