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[2026] NTSC 8
General information, not legal advice.
Supreme Court of the NT
2026-01-27
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Joinder of parties - Application of Rule 9.06 in respect of claims under the Family Provision Act 1970 (NT) - General rule in such proceedings that only executor/s are named as defendant/s - Exceptions to the general rule - Principles relevant to determination as to whether joinder of beneficiaries should be permitted - Joinder of beneficiary permitted.
Supreme Court Rules 1987 (NT), rr 9.06, 9.06(b)
Cutting v Public Trustee for the Northern Territory [2017] NTSC 6; Albany v Albany [2010] NTSC 25; In the Will of Lanfear (Deceased) (1940) 57 WN (NSW) 181; Vasiljev v Public Trustee [1974] 2 NSWLR 497; Application of Scali [2010] NSWSC 1254; Italiano v McPherson [2021] ACTSC 214; Boldi v Crozier [2015] NSWSC 2155; The Official Trustee in Bankruptcy (as Trustee of the estate of Peter Frangos, a bankrupt) v Frangos [1995] Vic SC 346 (7 July 1995); Fox v Burvill [1955] HCA 50; (1955) 92 CLR 334, referred to.
Renshaw & Anor v Maley [2026] NTSC 8
[1] This is an application by a beneficiary for joinder to the proceeding under Rule 9.06 of the Supreme Court Rules 1987 (NT), the proceeding being an application under the Family Provision Act 1970 (NT).
[2] Oriel June Renshaw (aka June Oriel Renshaw) ('the deceased') died on 17 February 2024. She was survived by three children. The Plaintiffs and the Applicant are her children. The deceased left a Will dated 21 November 2023, to which probate was granted to the Defendant executor on 23 September 2024. By that Will, the deceased left a number of general legacies. She left $10,000 each to her niece, two grandsons and granddaughter, $70,000 each to the Plaintiffs, and the residue of her estate to the Applicant.
[3] The grant of probate discloses that the estate has an estimated value of approximately $664,000. After deductions of general legacies and fees, the residue of the estate is estimated at approximately $485,000.
[4] The Plaintiffs oppose the joinder application. The Defendant, as executor, has indicated that he neither opposes nor consents to the application.
[5] The matter is listed for a settlement conference in approximately two months' time with orders for the parties to file and serve material which they seek to rely on prior to the settlement conference. As the Applicant is not a party, she has no absolute right to file affidavit material nor appear at the settlement conference or in the proceeding.
[6] For the purposes of this application, the affidavits of Kim Darlene May and Barry Wayne Renshaw made 19 November 2025, and James Daly made 9 January 2026, for the Plaintiffs, were taken as read. The affidavit of William Francis Piper made 6 January 2026, for the Applicant, was taken as read.
Joinder of Beneficiaries in Family Provisions Proceedings
[7] The application is made pursuant to Rule 9.06(b), which provides:
At any stage of a proceeding the Court may order that:
(b) any of the following persons be added as a party:
(i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated on; or
(ii) a person between whom and a party to the proceeding there may exist a question arising out of, or relating to or connected with, a claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;
[8] In respect to the joinder of parties pursuant to Rule 9.06, the rule is to be given a wide and beneficial interpretation so that all necessary parties will be before the Court so as to enable all issues to be litigated.
[9] Under Rule 9.06 in respect to the joinder of a beneficiary as a party to these types of proceedings, the law is well established and was restated most recently in Cutting v Public Trustee for the Northern Territory by Luppino M (as he then was):[1]
As the Defendant to proceedings under the FPA is usually only the executor of the estate, clearly the nature of the claim impacts on the operation of rule 9.06. The general rule in claims for provision out of the estate pursuant to the FPA is that the beneficiaries should not be a party notwithstanding that they have an obvious interest in the proceedings.
Where an application is made for provision to be made out of an estate under the Family Provision Act, the parties to proceedings for such an order are generally just the applicants for the orders and the legal personal representatives of the deceased. Beneficiaries may be joined, but this is an exceptional power exercised, usually, only if the legal personal representative is not fulfilling his duty to either compromise the claim or claims, or contest it and seek to uphold the provisions of the will.
The general rule that only the executor of the estate is to be the defendant in a claim under the FPA recognises that it would be unworkable in most cases, certainly in smaller estates, if there were multiple defendants, in part as costs could be prohibitive. Rather, the approach taken by Courts in all jurisdictions is to rely on the duties on the executors and to dispense with the involvement of beneficiaries as parties except in very specific instances.
[10] In Albany v Albany, Mildren J went on to state at:[2]
Such an order was made in this case joining the first defendant as a party to the original consolidated action as a co-defendant with the Public Trustee and it has not been challenged. Why such an unusual order was made is not apparent to me, although there is some authority to the effect that joinder of the sole beneficiary of a will is appropriate in the case of large estates. Following that order, Public Trustee left the conduct of the defence of the original consolidated action to the first defendant and agreed to abide by the outcome of the action. Thereafter, Public Trustee has no role to play, although as Hodgson JA said in Bartlett v Coomber & Anor, it did not place the first defendant in the shoes of the deceased's executor.
The Testator's Family Maintenance and Guardianship of Infants Act,
s. 3 provides for service of the application on the executor of the will of the deceased person and further provides that the Court may order such other persons as it may think fit to be served with notice of such application. This statutory provision has been interpreted so as to discourage any person other than the executor from making himself responsible for defending the will, except in those special cases where this is impossible, e.g., where the executor is himself the applicant. Beneficiaries may be allowed to intervene on special grounds, but their intervention is unwelcome.
These rules put the executor in a position of great responsibility, as he is the only defender of the will. In In the Will of W.F. Lanfear (Deceased), Williams J., speaking with the concurrence of Nicholas C.J. in Eq., said:
"In an ordinary case, especially where the estate is a small one, it is the duty of the executors either to compromise the claim, or to contest it and seek to uphold the provisions of the will. For that purpose they should place all the relevant evidence before the Court relating, not only to the case generally, but to any particular circumstances which the Court should take into consideration relating to any particular gift in the will. In special cases where for instance the executors are themselves beneficiaries under the will, or where very substantial benefits are conferred upon beneficiaries, it can be proper for beneficiaries to intervene and be separately represented, but as a general rule such separate representation should not be necessary if the executors do their duty. If beneficiaries desire to intervene an application to do so must be made before or at the hearing, and it is by no means a matter of course that such application will be granted. If the executors take up an attitude, which compels beneficiaries to seek separate representation to protect their gifts, they run a grave risk of the Court holding that they have acted improperly and, in a case where the Court considers that only one set of costs should be allowed between the respondents, the result may follow that the Court will order that set of costs to be applied in the first instance on behalf of the beneficiaries who have been forced to intervene, and only the residue to be applied on behalf of the executors."
[12] Additionally, in respect to the executor's duty, it was stated in Application of Scali (footnotes omitted):[5]
... the primary duty of the executor as defendant is to uphold the will and to put before the Court any necessary material that can reasonably be found to assist the Court [see Anthony Dickey, Family Provision After Death (1992) Law Book Co, Vasiljev v Public Trustee [1974] 2 NSWLR 497]. No doubt this does not mean that the proceedings must be defended as if they were a murder trial, and it does not deny that the executor must exercise a due sense of proportionality in the conduct of any such defence and seek to compromise a claim, if at all possible, in a way that would save both the plaintiff and the other beneficiaries' costs [see Szlazko v Travini [2004] NSWSC 610]. Thus, the duty of executors to uphold the will does not extend to doing so where it is of no commercial benefit to anyone, and regard should be had to the extent to which upholding the will would benefit beneficiaries [Szlazko v Travini].
[13] However, the Courts have recognised the circumstances in which it may be appropriate to join a beneficiary. In Italiano v McPherson,[6] an application was brought to join a beneficiary.[7] Mediation had been scheduled, and the applicant had been invited to participate. The defendant indicated that, absent the consent of the applicant beneficiary, she would not agree to any proposed settlement. The Court concluded that in order to give the mediation its best prospects of success, the applicant beneficiary should be joined as a party as it would need to play a significant part in the resolution of the proceedings. Orders were made joining the beneficiary but with the joinder at the applicant's own risk of costs. In Boldi v Crozier,[8] the Court ordered the joinder of a beneficiary who was to inherit a substantial share of the estate's residue, where "the burden of any family provision order would be visited, at least in part, on her share of residue". In doing so, the Court noted that it retained the power to decline to award costs to any beneficiary who had unnecessarily become a party to the proceedings.[9]
[14] The joinder of a sole or substantial beneficiary, being the most likely to be substantially affected by any family provisions order, may affect the on-going conduct of the executor. In Albany, without apparent criticism from the Court, the executor took an abiding role following the joinder, although it did not place the joined beneficiary in the shoes of the executor. The executor was still obliged to assist the Court where necessary.[10]
[15] The Applicant's evidence was given via an affidavit of her solicitor, Mr Piper. This evidence can be summarised as follows:
(a) Mr Piper has been acting for the Applicant since 27 March 2025. He was originally engaged to advise and to respond to correspondence received from the solicitors for the Defendant in respect to a foreshadowed family provision claim brought by the Plaintiffs.
(b) In so acting, Mr Piper has become familiar with the history of the matter, obtained a large volume of instructions and material from the Applicant, reviewed a significant amount of correspondence in respect to the claims by the Plaintiffs, and has spoken to witnesses relevant to matters in dispute. He is also familiar with the case brought by the Plaintiffs.
(c) It was Mr Piper's belief that the Defendant did not hold a position in respect to an extension of time application, which was required to be brought by the Plaintiffs in the proceeding and/or did not oppose the same. Further, it was Mr Piper's belief that the Defendant was not proposing to file documents in response to the material filed by the Plaintiffs other than to set out basic matters relevant to the history of the estate and the contents of the estate.
(d) It was Mr Piper's belief that it would be in the interests of the Court to have before it the facts and matters supporting the Applicant's position in connection with the claim, and that he was best placed to prepare that material as he already has familiarity with the matter.
[16] In respect to the above, six main submissions were made as follows:
(a) The Defendant was not actively defending the claims of the Plaintiffs;
(b) The Applicant's solicitor has special knowledge of her case;
(c) There will be no double handing or additional expense to the estate if the Applicant prepares materials, because that work has not yet been done by the estate;
(d) There are serious allegations made by the Plaintiffs against the Applicant and vice versa, warranting each to put their cases forward in order to be properly heard on all relevant matters;
(e) Various authorities have affirmed that a beneficiary will be more readily joined where the beneficiary receives various substantial benefits under the Will, likely to be disturbed if a family provisions order is to be made; and
(f) The Court will need to approve any settlement and will be in a better position to do so if it is aware of the primary beneficiary's case.[11]
[17] No evidence was filed by the Defendant. The Defendant neither opposed nor consented to the joinder application, but conceded that the presence of the Applicant at any settlement conference would be to the benefit of the parties. The Defendant submitted that the matters in issue had been the subject to significant correspondence already between relevant parties, and to that end, a private mediation had previously been scheduled but did not proceed. In preparation for that mediation, position papers had been prepared. The Defendant submitted that the position being adopted at present, for pragmatic and commercial reasons, was not to file voluminous affidavit materials with the Court prior to the settlement conference. Rather, the intention was to file what was necessary in respect to the status of the estate and to supplement the position paper which had previously been prepared. The Defendant denied he was refusing to perform his duties, insisting that he was taking a pragmatic approach to the settlement conference in an attempt to keep costs at a minimum. The Defendant acknowledged that he would not be preparing affidavits of the Applicant himself, but would be willing to file an affidavit on her behalf if supplied by Mr Piper.
[18] The Plaintiffs relied on their affidavits filed in the proceeding. Additionally, the Plaintiffs relied on the affidavit of their solicitor, Mr Daly.
[19] For the purpose of this application, it is not necessary to recount the contents of the Plaintiffs' affidavits in any detail. Suffice to say, the Plaintiffs set out their entitlement to make the application, their relationship with the deceased and their financial circumstances. Both Plaintiffs also make certain adverse allegations against the Applicant. Those allegations may, or may not, have a bearing on the Court's ultimate discretion in the proceeding.
[20] The affidavit of Mr Daly deposed to his various dealings with the solicitors for the Applicants, including inquiries as to the alignment of the Defendant's and Applicant's interests warranting joinder.
[21] As noted, the Plaintiffs oppose formal joinder of the Applicant on the application of the general rule and primarily on the basis that it would lead to unnecessary costs being incurred, which could affect the balance of an already modest estate. However, the Plaintiffs support the attendance of the Applicant at any settlement conference and considered it would be difficult to resolve the matter with basic information from the Defendant alone. It was submitted that leave could be granted for the Applicant to attend the settlement conference and to file affidavit material, whilst adjourning the joinder application until after the settlement conference when the final position of the Defendant was made clear.
[22] Good reason exists not to join beneficiaries to these types of proceedings. The duty to defend the Will, and to generally take up the positions of the affected beneficiaries, lies with the executor who is joined as a defendant. To do otherwise risks overcomplicating the proceeding with multiple defendants and risks excessive costs, some which may be borne from the estate. Good reason exists to be additionally cautious where estates are small. In this proceeding, the balance of the residual estate is only $485,000. It is not a large estate by any means.
[23] I have considered the circumstances of this matter, in particular, the suggestion put by the Plaintiffs that the Applicant be granted leave to participate in the settlement conference and to file affidavit material, but adjourning her joinder application until after the settlement conference (essentially, treating the Applicant as a party for all intents and purposes). Whilst that suggestion has a degree of attractiveness to it, it was opposed by the Applicant on the basis that if she was going to be treated as a party, she should be joined as one now, not later. Additionally, the Applicant submitted that should she not be joined but participates in the settlement conference insofar as preparing affidavits, undertaking other necessary legal work and incurring legal costs, she may be deprived of the recovery of those costs at a later date should she be joined.
[24] Unlike in Cutting, where the application for joinder was made by three of the six children and eleven of the thirteen grandchildren (i.e. 14 defendants), the instant application is only by the sole residual beneficiary. The addition of one substantial beneficiary is hardly likely to over complicate the proceeding. That beneficiary is currently due to inherit $485,000 of a $664,000 estate or approximately 73% of the estate. It could be said that a very substantial benefit is conferred upon the Applicant beneficiary, such that it would be proper to allow her to intervene as a party.
[25] The major concern is the effect on the balance of the estate if another party is joined. The amount of $485,000 may be dissipated by legal fees, either of the Defendant executor or in awards of costs. However, there are counter-veiling considerations: the issues in dispute already have somewhat of a history already, and the solicitor for the Applicant beneficiary is already engaged and very familiar with the proceeding insofar as it relates to the claims by the Plaintiffs against the Applicant. If the Defendant were to fully perform his obligations, including taking evidence from the Applicant in preparation for the settlement conference and the proceeding generally (which in my view is necessary), he would need to duplicate the work already undertaken by Mr Piper. That would be unnecessary. Going forward, given the background and the work already undertaken by Mr Piper, it makes sense from a practical perspective that the Applicant be joined as a party. Additionally, it may not be inappropriate for the Defendant to play a lesser role in proceedings than otherwise would be expected, if the Applicant was so joined. To do so would not necessarily be inconsistent with the Defendant's duty to ensure the estate is defended, the Will upheld and the Court assisted. To those considerations, I add that, if joined, the Applicant faces the risk that unnecessarily incurred costs might not be recoverable. The same may apply to the Defendant.
[26] In my opinion, the Applicant's participation in the settlement conference, including the provision of affidavit evidence to assist in the settlement conference (and potentially beyond), is crucial. The only issue is whether that involvement is achieved by joinder or not.
[27] Notwithstanding the well-established rule in respect to joinder which exists for good reason, the circumstances of this matter warrant a departure from it. There is only one substantive beneficiary and her claimed share in the estate is a substantial portion of the estate (and is all of the residue), although the estate is not excessively large. Additionally, significant legal work has already been undertaken by the Applicant's own solicitor which need not be duplicated by the Defendant if he was obliged to take up the Applicant's cause. In any event, at least at this stage, the Defendant has indicated that he does not intend to take and file affidavit material from the Applicant. Weighed with those considerations is the prospect that any unnecessary legal costs can be mitigated by a clear reiteration that the Court will be vigilant to ensure that only reasonable and necessary costs are incurred. Costs will remain at the Court's discretion, either in approving any compromise or if the matter proceeds to final hearing. In my view, in these particular circumstances, joinder of the Applicant is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated on, or a joinder will make it just and convenient to determine issues as between the Applicant and Plaintiffs.[12]
[1] Cutting v Public Trustee for the Northern Territory [2017] NTSC 6 at [23]- [24], [27] ('Cutting').
[2] Albany v Albany [2010] NTSC 25 at [53] ('Albany').
[3] In the Will of Lanfear (Deceased) (1940) 57 WN (NSW) 181 at 183.
[4] Vasiljev v Public Trustee [1974] 2 NSWLR 497 at 503.
[5] Application of Scali [2010] NSWSC 1254 at [10].
[6] Italiano v McPherson [2021] ACTSC 214.
[7] Described as a major beneficiary to an estate worth approximately $1,300,000, to which $290,000 were bequests to named beneficiaries.
[12] See: The Official Trustee in Bankruptcy (as Trustee of the estate of Peter Frangos, a bankrupt) v Frangos [1995] VicSC 346 (7 July 1995) p 14, citing Fox v Burvill [1955] HCA 50; (1955) 92 CLR 334 at 341 where the Court was prepared to order costs of all parties to be paid out of the estate with the caveat 'We must not be taken, however, as giving any countenance to the view that, in cases under the Testator's Family Maintenance Act, any beneficiary who chooses to be separately represented is entitled to receive, or should receive even by consent, costs out of the testator's estate'.
Renshaw & Anor
Maley [2026] NTSC 8
(1955) 92 CLR 334