In the Estate of Aaldert van den Berg [1999] ACTSC 82 (30 July 1999)

Last Updated: 6 October 1999

In the Estate of Aaldert van den Berg

[1999] ACTSC 82 (30 July 1999)

CATCHWORDS

WILLS PROBATE & ADMINISTRATION - Practice and procedure - Caveats - Application to strike out caveator's particulars of objection - Whether caveator's interest is sufficient - Locus standi - Whether the caveator's interests could be adversely affected if grant of probate was to be made absolute - No issue of principle.

No. P179 of 1999

Coram: Master T Connolly

Supreme Court of the ACT

Date: 30 July 1999

IN THE SUPREME COURT OF THE )

) No. P179 of 1999

AUSTRALIAN CAPITAL TERRITORY )

IN THE ESTATE of

AALDERT VAN DEN BERG late of 20 Fitzherbert Place, Bruce in the Australian Capital Territory, Company Director, Deceased

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 30 July 1999

THE COURT ORDERS THAT:

1. The notice of motion dated 30 June 1999 is dismissed.

2. The applicant/executor pay the respondent/caveator's costs of the application.

1. This is an application arising by way of a Notice of Motion dated 30 June 1999 to strike out objections in a caveat lodged on 17 March in relation to the will of Aaldert van den Berg. Aaldert van den Berg died on 26 February 1999 leaving a will dated 19 June 1998. This is not normally a matter within my jurisdiction as Master, but it came within my jurisdiction by order of Justice Higgins of 16 July 1999. The will names Sonia van den Berg, the wife of the deceased, as the sole executor and beneficiary. The caveat was lodged by Tobias van den Berg, the only son of the deceased, from a former marriage. It is his intention to file an application for an order pursuant to the Family Provisions Act 1969.

2. In the normal course of events, no caveat would be lodged in such circumstances. The grant of probate would be made, and then the testator's family maintenance action could be heard and considered in this court. The present matter arises because, prior to the death of the deceased, proceedings were brought in the Family Court by Sonia van den Berg in relation to the ownership of the matrimonial home. Title to this property was, until Aaldert's death, held by Aaldert and Sonia van den Berg as joint tenants. Following Aaldert's death Sonia has asserted her right to be the sole proprietor of the matrimonial home by right of survivorship, and has accordingly not included any interest of Aaldert's in the matrimonial home in the inventory of property filed in support of her application for the grant of probate.

3. The son seeks to have a legal personal representative appointed to continue the Family Court proceedings. He argues that these proceedings should be brought to finality in order to determine the appropriate interest held by the deceased in the matrimonial home so that this interest can then be included in the estate of the deceased, and that this question should be resolved before probate is granted so that he can bring his claim pursuant to the Family Provisions Act 1969 against the estate comprising the deceased's personal property and his interest in the matrimonial home, rather than against the estate as it is presently inventorised, being the deceased's personal property only with no interest in the matrimonial home.

4. There is no question that proceedings can be continued in the Family Court after the death of a party - Family Law Act 1975 s.79(8). The Full Court of the Family Court has held that this extends to a situation such as the present where one party has instituted an application in relation to property and the respondent to those proceedings in the Family Court dies (Streyles and Streyles; Lukaitis (Executor) (1988) FLC 91-961). The son argues that it will be necessary to appoint a legal personal representative of the deceased husband to continue the Family Court proceedings instituted by the wife. His counsel argues that the caveat has been lodged to prevent the order nisi for the grant of probate being made absolute because the effect of this would be to appoint the wife as the executor of the husband's estate, and so as his legal personal representative. The wife would then be in the position of both bringing the claim in the Family Court in relation to the matrimonial home and, in her capacity as the executor of her deceased husband's estate, defending that action and perhaps bringing a cross application. I note that Justice Nygh of the Family Court has noted the "apparent absurdity" of such a position, and has indicated that this should be avoided, at least where no grant of probate has yet been made, by the appointment of an administrator ad litem, with an appointment limited only to the purposes of conducting the suit (Bailey and Bailey (1987) FLC 91-803). This is the course of action advocated by the son.

5. The caveator says that he has lodged the caveat in order to prevent the grant of probate pending his application for the appointment of an administrator ad litem to conclude the Family Court proceedings and determine the appropriate distribution, between the deceased husband and his wife, of the interest in the matrimonial home. Counsel for the wife, who has obtained an order nisi for the grant of probate and seeks to have this made absolute, argues that this is an inappropriate use of the power to lodge a caveat, and that the caveat should be struck out.

6. Section 33 of the Administration and Probate Act 1929 provides

"(1) Any person may lodge with the Registrar a caveat against any application for representation at any time previous to the representation being granted.

(2) Every caveat shall set forth the name of the person lodging it, and an address within the Territory for the service of notices."

7. The form for lodging a caveat is set down in the Rules (O72 r55). The form requires a caveator to disclose the relationship or particulars of interest claimed. The caveat lodged by Tobias van den Berg on 17 March 1999 seems to me to comply with the formal requirements of the Act and Rules, and to properly disclose his relationship or interest by identifying himself as "the only son of the Deceased".

8. Order 72 rule 54 sets out the requirements for a caveator to lodge particulars of objection, either to the form of the will or to the capacity or appropriateness of the person proposed as administrator. There is no objection in the present case to either the form of the will or the appropriateness, in due course, of the appointment of Sonia van den Berg as the executor. There is provision in Order 72 rule 55 for the caveator to

"...also state in the particulars any special grounds of objection not included in those specified in the last preceding rule."

9. The grounds of objection lodged by the caveator are as follows:

"The Caveator objects to the grant of probate to Sonia van den Berg (`the Grantee') on special grounds (O72r55(1)):-

(a) that the applicant Clapham seeks a grant of letters of administration ad litem in order to continue proceedings against the Grantee in the Family Court regarding matrimonial property; and

(b) that the Grantee will be in a position of conflicting interest in relation to the Family Court proceedings if she becomes the `legal personal representative' of the deceased."

10. Counsel for the executor argued that in these circumstances the caveator had not disclosed a sufficient interest to have standing to lodge the caveat, and that accordingly it should be struck out.

11. It is clearly the law that, although the provisions of s33 state that "any person" may lodge a caveat, probate litigation is "interest litigation" and therefore a caveator must be prepared to show that he or she has a relevant interest (Geddes, Rowland and Studdart, Wills, Probate and Administration Law in New South Wales, LBC 1996, p635). It is appropriate practice where the status of the caveator is in issue for the question of whether they have an appropriate interest to be determined in advance, as

"The rules are designed to allow what are called interest suits being determined in advance. It is a serious matter where a person with no locus standi is allowed to contest the administration of the estate because the results of such litigation may be utterly futile and it may be necessary for different parties to fight over much the same ground"

(per Hutley J, Hughes v Public Trustee (unreported, New South Wales Supreme Court, Court of Appeal, 19 August 1980).

12. Counsel for the executor produced two authorities for the proposition that a person who has a proposed claim in accordance with the Family Provisions Act does not have an interest to lodge a caveat. In Arbuz v Sanderson (unreported, New South Wales Supreme Court, 24 March 1986) Waddell J was considering a caveat lodged by a former wife of the deceased who stated that she proposed bringing such a claim. He said

"Such an interest does not, in my opinion, support a caveat. It provides no ground on which the application for a grant might be refused. Indeed, the making of a grant is in the interests of such a caveator because it enables her to make her application under the Family Provision Act."

13. A similar view was taken by Zeeman J in the Tasmanian Supreme Court in King v Hebbard (1992) 3 Tas R 241 where he held that the mere intention to make a claim under such legislation was not a sufficient interest. He noted (at 246)

"Plainly any entitlement to an order under the provisions of the Testators Family Maintenance Act remains unaffected by the sealing of a grant of probate."

14. While respectfully accepting the correctness of these authorities, it does not seem to me that the proposition that an eligible person under the Family Provisions Act does not by that alone have an interest to lodge a caveat disposes of the issues of this case. The authorities cited in support of this specific proposition rest on the more general proposition that a person does not have an interest unless they can point to

"...some right of that person which will be affected by the grant"

(Re Devoy; Fitzgerald v Fitzgerald [1943] QSR 137 at 145).

15. Where a person merely expects or intends to bring a Family Provisions Act claim their right is unaffected by the grant of probate, indeed, as the learned Judges pointed out, it is necessary for the grant to be made before the claim can be brought against the estate. In the present case, the caveator has not relied in his objections (despite being invited by counsel for the executor to do so) on his intention to bring a claim. Instead, his objection is based on the presence of the uncompleted Family Court proceedings which will, if brought to finality, determine the distribution of the interest in the matrimonial home, and which could accordingly have a significant impact on the value of the estate, which will be relevant when a Family Provisions Act claim falls to be determined.

16. It seems to me that there are rights which will be affected by the grant of probate in a manner adverse to the son. Counsel both agreed that, if the caveat is struck out and the grant of probate is made absolute, the Family Court will have no option but to accept the executor as the representative of the deceased for the purposes of the proceedings on foot in that Court. If those proceedings are then discontinued, which it would seem to me could not be challenged, the estate of the deceased will be limited to that set out in the inventory. The appropriate share of the matrimonial home between the deceased husband and the wife will never be resolved, and the son will have his claim under the Family Provisions Act determined as a claim solely against the personal property of the deceased as disclosed in that inventory. If the Family Court proceedings are able to be brought to finality by the appointment of an administrator ad litem who is not the wife, the estate may at the end of those proceedings include an interest in the matrimonial home. I note that in Streyles and Streyles; Lukaitis (Executor) (1988) FLC 91-961 Nygh J expressed the view that it is

"...clearly unjust [that a person] should be deprived of his or her claim to adjustment of property rights through the death of the applicant and the operation of the rule of survivorship in a joint tenancy."

17. Counsel for the testator argued that the mere variation in the amount of the estate does not amount to an interest, as the applicant's legal right to a claim on the estate remains, and the quantum of the estate does not affect the existence of the legal right. It seems to me however that the authorities establish that a caveator should show that his interests will be "different" if the probate goes ahead without the opportunity to establish his or her case, and that in determining this the issues at stake must be such that deciding those issues will make a difference to the applicant's entitlements. A consideration of the different amounts that a caveator may receive seems to be relevant to these considerations (In re Wood Deceased [1961] Qd.R. 585 at 589; see generally Geddes Rowland and Stoddart, Wills Probate and Administration Law in New South Wales, p298).

18. I am satisfied that if the grant of probate was to be made absolute the caveator's interests could be adversely affected, as his claim for relief under the Family Provisions Act would be limited to the estate as inventorised, and would not include any possibility of a claim against the deceased's interest in the matrimonial home. It is of course not appropriate at this stage to make any definitive findings on these questions. I am satisfied that the caveator has shown that there is a reasonable prospect that he has an interest, which is, to paraphrase Wanstall J in In re Wood Deceased [1961] Qd.R. 585 at 589,

"...certainly more than `the bare possibility of an interest' thought in Kipping and Barlow v Ash (1845) 163 ER 1035 to be sufficient to found opposition."

19. I am therefore satisfied that the caveator has a sufficient interest to lodge the caveat, and to properly identify his objections as he has done, and I dismiss the application to strike out the caveat and the objections. Unless the parties wish to be heard further I would order that costs follow the event.

I certify that this and the seven (7) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 30 July 1999

Counsel for the Applicant/Executor: Mr T Johnstone

Instructing Solicitors: Nimmo Tigwell Clarke

Counsel for the Respondent/Caveator: Mr C Whitelaw

Instructing Solicitors: Meyer Clapham

Dates of hearing: 23 July 1999

Date of judgment: 30 July 1999