HIS HONOUR: By notice of motion filed 12 October 2015, the applicant Melanie Aliberti seeks an order that she be joined as second defendant in the proceedings, which were instituted by summons filed by the plaintiff Luciana Iole Boldi against the defendant Terence Robert Crozier as executrix of the estate of the late Keith Peter Cini, the father of the applicant, claiming further provision out of the estate of the deceased who, by his last will, left a pecuniary legacy of $20,000 to the plaintiff, whom he described in the will as his partner, and the balance of his estate in equal shares to his children, being the applicant and Leanne Adam.
In proceedings under (NSW) Family Provision Act 1982 - and now (NSW) Succession Act 2006 - the proper defendant is the executor. Courts ordinarily discourage beneficiaries from defending the application [see Re Klease [1972] QWN 44; Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503]. This is because it is the particular and peculiar duty of the executor to defend the will and, in those circumstances, the intervention of anyone else to uphold it is ordinarily regarded as unnecessary [see Re Burton (deceased) [1958] QWN 27; Re Klease; Will of Lanfear [1940] 57 WN (NSW) 181 at 183]. A practical reason for this approach is to avoid the proliferation of parties and minimise the impact of costs on the estate. Thus, courts not infrequently decline to award costs to any beneficiary who has unnecessarily become a party to the proceedings.
Nonetheless, there are circumstances in which a beneficiary will be joined as a defendant. Obvious cases include where the executor is an applicant for family provision and there is no co-executor to defend the application. By analogy, where there may otherwise be conflict between the interests of the beneficiary and the executor - for example, if the executor is a competing beneficiary - separate representation of the beneficiary may be permitted.
A number of cases have indicated that a beneficiary will more readily be permitted to intervene where the beneficiary receives very substantial benefits under the will which are liable to be disturbed if a family provision order is made [Will of Lanfear at 183; Frangos v Frangos (Victorian Court of Appeal, 7 July 1995, unreported)].
The applicant says that she wishes to be joined because she is entitled to substantial benefit under the will and has lost confidence in the executor's defence of the will. So far as concerns the first limb of that argument, the applicant has been left half the residuary estate which, although the value of the estate remains unresolved and in issue, may be anything between $700,000 and $1.9 million. On either view, that is a substantial benefit and it is reasonable to assume that the burden of any family provision order would be visited, at least in part, on her share of residue. Although she might be able to advance circumstances why it should be visited on the other share of residue, the executor is unlikely to advance that argument.
Generally speaking, I am not of the view that the applicant's loss of confidence in the executor's conduct of the proceedings is well-founded on the material that has been advanced. A number of matters were pointed to. First, it was said that the executor prematurely agreed to a mediation. But I do not agree that it was premature to have the matter referred to mediation, when that took place in the ordinary course of the proceedings. It was also suggested that the executor was prematurely enthusiastic to accept a hearing date before all necessary investigations had been undertaken and evidence adduced, but an inspection of the Court record indicates that the executor did not contemplate taking a hearing date without adducing further substantive evidence.
Next, it was suggested that the value of the estate had not been resolved because of competing positions of the parties as to value. It is true that in the probate affidavit, the executor referred to the property as being worth $4.8 million, but evidence has been served in the proceedings of a valuation of $1.3 million, and unless and until that is contradicted, it is likely that the Court would act on that lower value, which one would have thought could only be to the advantage of the estate and the beneficiaries, as distinct from the plaintiff.
It is true that the executor has not served evidence of the financial circumstances of the beneficiaries. However, there is no evidence that Leanne Adam wishes to put her financial circumstances into issue. The executor has not served evidence of the financial circumstances of the applicant, but that is because the executor is not prepared to use in its present form a draft affidavit of the applicant, which she has provided, for reasons to which I shall come.
While it may be that further enquiries could be made to verify or contradict the plaintiff's claim to have been in a de facto relationship with the deceased, it seems that some enquiries have been made, and I do not think that a decision by the executor not to chase every particular rabbit down every burrow in that respect is a matter that justifies, objectively speaking, a loss of confidence.
Other foreshadowed criticisms about failure to resolve the nature of a liability claim by the plaintiff and the plaintiff's claim for victim's compensation were not pressed in the light of further evidence.
However, the executor has declined to adduce evidence from the applicant, as proposed in a draft affidavit of the applicant, apparently for two reasons. One is that paragraphs 51 through 84 of the draft affidavit are addressed to the adequacy of the executor's investigations of the financial affairs of the deceased, the estate and the plaintiff. It seems to me that those paragraphs would have no relevance on a final hearing of the application for provision, and I can well understand why the executor would not wish to tender that evidence. However, paragraph 36 of the affidavit is in a different category. In it, the applicant deposes to a conversation with the executor in about June or July 2011, on the question of the proposed purchase by the deceased of a new prime mover, to which the applicant was opposed. In short, the applicant says that she raised the issue with the executor and accepted his offer to have a conversation with the deceased about it and that subsequently she became estranged from the deceased, who was "livid" that she had spoken to his accountant, the executor, about the matter.
The inference from the applicant's version is that the estrangement was attributable to the deceased's anger that she had spoken to his accountant about his business affairs, and that the applicant's concerns in that respect had been conveyed to the deceased by the executor. The executor denies the applicant's version of that conversation and in particular that he had offered to discuss it with the deceased. The inference from his version is that he did not offer to discuss it with the deceased and probably did not do so. As this conversation appears to be, if not central, at least material to the applicant's endeavour to explain an apparent estrangement between her and the deceased over the last three years of his life, and as the executor and the applicant appear to be at issue over what transpired in that respect, the executor could not be expected to put before the Court and robustly prosecute the applicant's version.
When one couples that circumstance with the applicant's interest in the estate and her desire to be heard to oppose the application, which is liable to affect her interests as to her own risks as to costs, a case for her joinder, at her own risk as to costs is made out.
The Court orders, pursuant to (NSW) Uniform Civil Procedure Rules 2005, r 6.27, that Melanie Aliberti be joined as second defendant in the proceedings, at her own risk as to costs.
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Decision last updated: 22 September 2017