Crossman & Cowan v Estate of Crossman [2003] ACTSC 45 (2 June 2003)

Last Updated: 5 June 2003

GEOFFREY CROSSMAN AND BETH COWAN v ESTATE OF THE LATE DELEGATE ADELE CROSSMAN [2003] ACTSC 45 (2 June 2003)

CATCHWORDS

PROCEDURE - discovery - family provision claim - identification of issues - non-party discovery - appropriate parties.

Family Provision Act 1969, s.8

Supreme Court Rules, Order 19 rule 9.

No. SC 374 OF 2002

Coram: Master D. Harper

Supreme Court of the ACT

Date: 2 June 2003

IN THE SUPREME COURT OF THE )

) No. SC 374 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GEOFFREY CROSSMAN AND

BETH COWAN

Plaintiffs

AND: ESTATE OF THE LATE

DELEGATE ADELE

CROSSMAN

Defendant

O R D E R

Coram: Master

Date: 2 June 2003

Place: Canberra

THE COURT ORDERS THAT:

1. Marie Dawn Riedel be joined as a defendant in her personal capacity.

2. The application be dismissed.

3. The costs of the application be reserved with liberty to apply.

4. The matter be relisted before the Master for further directions on 13 June 2003.

1. This is an application for directions made on behalf of the plaintiffs in an action brought pursuant to the Family Provision Act 1969 seeking provision out of the estate of the late Delegate Adele Crossman (the deceased), who died on 9 November 2001 aged 100.

2. The deceased left a will dated 1 June 2000 in which she appointed her daughter Marie Dawn Riedel and her grandson Geoffrey George Riedel executors and left the whole of her estate to Marie Dawn Riedel. It appears that probate of the will has been granted to the executors although the probate is not yet in evidence in these proceedings.

3. The plaintiffs are children of the deceased. Another son of the deceased was a plaintiff when proceedings were instituted but has since withdrawn from the action. The deceased had other children but only these four survived her.

4. The principal asset in the estate, a house in Bannister Gardens, Griffith, has recently been sold. The sale has not yet been completed. I am informed that the ultimate value of the estate is likely to be in the vicinity of $800,000.

5. Following a direction by the Registrar that evidence be by affidavit, a large number of affidavits of factual matters in issue have been filed, as have affidavits of documents.

6. The defendant has been described in the originating application and subsequent process as "Estate of the Late Delegate Adele Crossman". When the matter came before me, I granted leave to amend the name of the defendant by substituting the names of the executors in that capacity - that is to say, the defendant will become Marie Dawn Riedel and Geoffrey George Riedel as executors of the estate of the late Delegate Adele Crossman.

7. On 26 March 2003, each of the executors swore an affidavit which deposed to the financial position of Mr G.G. Riedel, and his financial dependence on his mother, Mrs M.D. Riedel. It is argued on behalf of the plaintiffs that this affidavit material has raised an issue between the parties in respect of which relevant documents exist which have not been listed in the defendant's affidavit of documents. They seek an order that Mr G.G. Riedel file a further amended affidavit of documents, discovering material relevant to his financial position and his dependence on his mother. They submit that as an executor, Mr Riedel is a party to the proceedings and thus amenable to the discovery process.

8. The issues in the principal action do not emerge from the statement of claim or the defence. They are not readily identified from the mass of affidavit material which has been filed on both sides. However, it appears to me that the defendants have chosen to rely, in meeting the claim by the plaintiffs, on the assertions in the affidavits of both executors of 26 March 2003 as to their financial arrangements, and that in these circumstances it is reasonable for the plaintiffs to ask them to disclose documents which might assist the plaintiffs in testing those assertions.

9. The position is complicated by the fact that, in my view, the defendants are parties only in their representative capacity as executors of the estate of the deceased. Neither is a party in a personal capacity. This places the defendant Mrs M.D. Riedel in particular in a position where there is at least in theory the potential for a conflict between her duties as executor and her interests as a beneficiary. The same consideration does not apply to the defendant Mr G.G. Riedel who receives no benefit under the will.

10. Order 19 rule 9 empowers the Court to order that a person beneficially interested in an estate be made a party in addition to the executors, and it seems to me that it would clarify the real interests at issue in the principal action if I were to adopt that course in relation to Mrs Riedel. I propose to order that Marie Dawn Riedel be joined as a defendant to the action in her personal capacity.

11. Mr G.G. Riedel is not a defendant in his personal capacity, nor should he be. The present defendants can be required to discover documents only in their capacity as joint executors. The documents sought by the plaintiffs are not documents which the defendants, or either of them, would be likely to have within their possession or control in their capacity as executors.

12. In my view the appropriate course is for the plaintiffs to issue a notice for non-party production addressed to Geoffrey George Riedel in his personal capacity, identifying the documents sought.

13. The criteria to be taken into account in an application under the Family Provision Act include the income, property and financial resources of the applicant and the deceased during her life; the financial needs and obligations of the applicant; and the responsibilities of either the applicant or the deceased during her life to support any other person (section 8(3)(e), (g) and (h)). They do not include the income, property or financial resources, or the financial needs and obligations, or the responsibility to support any other person, of a beneficiary under the will who is not an applicant. However, the criteria also include any other matter the Court considers relevant (section 8(3)(k)), and having regard to the affidavits sworn by each defendant on 26 March, I am not in a position to say that the information as to those matters about Mrs Riedel may not ultimately be considered relevant by the Court on the hearing of the principal action.

14. Neither the plaintiffs nor the defendants have achieved entirely what they sought on the hearing of the notice of motion, and I am minded to order that the costs of the application be costs in the cause. I shall provide the parties with an opportunity to make further submissions if they wish before making any order about costs.

15. The plaintiffs sought a direction that the matter be relisted before me for further directions on Friday 13 June 2003. This was not opposed by the defendants. I order accordingly, and request that the solicitors for the plaintiff prepare a list of the directions to be sought on that date, and provide the list to the solicitors for the defendants so that it will be ready apparent which directions are agreed and which are not. It would be helpful if the solicitors for the defendants would prepare a list of any further directions they seek, and submit this to the solicitors for the plaintiff for the same purpose.

Counsel for the Plaintiffs: Ms L. Donohoe

Solicitor for the Plaintiff: Nicholl & Co

Counsel for the Defendant: Mr M. Spry

Solicitor for the Defendant: Bradley Allen

Date of Hearing: 16 May 2003

Date of judgment: 2 June 2003