Re Hartley

This application raised an interesting issue for determination: whether an applicant for family provision who was not a beneficiary under the deceased’s will, but merely had a possible future interest in the estate, had standing to seek the revocation of the grant of probate. His Honour concluded that, as the applicant had a District Court family provision application on foot, his interest, while prospective, was sufficient to give him standing.

Henry J

15 July 2020 (delivered ex tempore)

The applicant, one of four sons of the deceased, had been left nothing in his mother’s will whereas his siblings had been generously provided for. The deceased’s will was accompanied by a statutory declaration in which she outlined her reasons for not making provision for the applicant.

The basis of the application for a revocation of the grant of probate was twofold: first, that the executor had failed to administer the estate in a timely manner; and second, that he had failed to meet his obligations as a litigant acting for the estate in defence of a District Court family provision application. His Honour plainly deemed these complaints to have some merit, assessing the executor’s performance of some aspects of his duties as “lax”. He observed that with regards to the contention that the executor had not complied with his obligations as a litigant, the “more obvious” avenue to advance matters would have been to seek orders in the District Court and also that traditionally courts are loathe to allow notional conflict to prompt intervention unless it is manifesting as an actual source of jeopardy to the due and proper administration of the estate: see Executor Trustee Australia Ltd v McDougall [2011] SASC 140; compare Russo v Russo  [2009] VSC 491, [30]–[31]. After due consideration, he determined that the appropriate course was to adjourn the application to establish whether or not the executor was conducting the District Court litigation in accordance with his obligations.

Whether the applicant had standing to bring the application was not an easy matter to resolve. His Honour noted that s 6 Succession Act 1981 provides jurisdiction in estate matters “as may be convenient” but that alone does not suffice to dispense with the need for the Court’s intervention to be sought by a party with standing to apply for same. Referring to Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, he observed that the doctrine of standing is a “house of many rooms” and it is generally accepted that what constitutes standing is dependent upon both the nature of the case and the nature of the asserted interest of the party whose standing is yet to be determined. Whilst there is no definitive authority on the matter and “[i]n Queensland the position has been somewhat mixed”, a binding 1985 decision of the Full Court of the Supreme Court of Queensland in Hogarth v Johnson  [1987] 2 Qd R 383 suggested that in order to establish standing, a critical factor is a prima facie interest in the estate. The focus of the noteworthy English and Victorian cases appears to be on sufficiency of interest to entitle a person to oppose a grant.

His Honour noted that in the event his District Court action is successful, the applicant will thereafter be entitled to a share of the estate. Thus, whilst the applicant held only a prospective interest in the estate, he deemed the interest to be of a sufficiently substantive character to give him standing. Nonetheless, recognising that “it would be a significant step to allow the application in circumstances where the applicant, who was quite deliberately excluded under his mother’s will, seeks the removal as executor of the person she quite deliberately appointed to that task in her will and where he does so for the obvious purpose of facilitating the litigation of his own action in the District Court”, his Honour prudently adjourned the application to allow time for the allegations of dereliction of duty to be properly addressed.

A de Jersey