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Catchwords: SUCCESSION – FAMILY PROVISION – Consent orders previously made following settlement – where court was unaware that a beneficiary was opposed to the making of the orders but was not a party to the proceedings – previous consent orders set aside – where parties reached a further settlement – further orders made by consent Legislation Cited: Court Procedures Rules 2006 (ACT) r 210, 256, 1613 Family Provision Act 1969 (ACT) ss 8(4), 9A, 10 Cases Cited: Bartlett v Coomber [2008] NSWCA 100 Blendell v Blendell [2020] NSWCA 154 Daley v Donaldson [2022] NSWCA 96 Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 Poletti v Jones [2015] NSWCA 107; 13 ASTLR 113 Richardson v Richardson [2022] ACTSC 363 Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 Parties: Paul Martin Rijven (Plaintiff) Bridget Margaret Lynam & Gregory Ian Rijven (as joint executors of the estate of Maria Adriana Rijven) (First Defendant) Marilouise Rijven (Second Defendant) Representation: Counsel A Muller (Plaintiff) G Blank (First Defendant) D Moujalli (Second Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) MV Law (First Defendant) Thomson Geer (Second Defendant) File Number: SC 241 of 2019 McWilliam J:

1. These proceedings involve a claim for family provision which settled in May 2021, with the Court making orders by consent on 10 May 2021. The plaintiff in the proceedings is Paul Martin Rijven (Paul). His two siblings, Bridget Margaret Lynam (Bridget) and Gregory Ian Rijven (Ian), are the defendants and joint executors of the Estate of their mother, the late Maria Adriana Rijven (deceased). The deceased died on 8 June 2017.

2. The application before the Court has been brought by Marilouise Rijven (Marilouise), who is the daughter-in-law of the deceased, and Ian’s estranged wife. Marilouise is one of the beneficiaries under the will of the deceased dated 31 July 2014 (Will).

3. It transpired that at the time of the settlement between the three siblings which resulted in the making of orders of the Court, Marilouise was effectively denied procedural fairness in her attempts to oppose the settlement. This arose as she was not a formal party to the proceeding and was not heard at the hearing, despite attending the hearing, making her opposition known to the executors, and attempting to file an affidavit explaining that position to the Court.

The application to set aside orders

4. On 24 April 2022, Marilouise filed an application in the proceeding, seeking to set aside the orders that had been made by consent between the joint executors and the plaintiff.

5. Through the significant efforts of the legal representatives for all the parties to the application (none of whom were involved in the proceeding when orders were made in May 2021), a settlement has again been reached.

6. On 11 September 2023, the Court made orders setting aside the orders that were made in 2021 and granting relief in the form of the orders that appear at the conclusion of this judgment.

7. At the time of making the orders, I indicated to the parties that notwithstanding the consent position of the parties, due to the history of the litigation, I would provide brief reasons for setting aside orders previously made by consent. These are those reasons.

The Court’s jurisdiction

8. It is important to understand the Court’s jurisdiction in family provision proceedings, which was discussed by Mossop J in Richardson v Richardson [2022] ACTSC 363 (Richardson). The Court’s role in making orders in family provision proceedings involves more than “placing a rubber stamp on the transaction”: Richardson at [34], citing Bartlett v Coomber [2008] NSWCA 100 (Bartlett) at [19] per Mason P.

9. In Richardson, Mossop J gave careful and detailed consideration to the judgments of Bartlett and Daley v Donaldson [2022] NSWCA 96. Drawing on those authorities, his Honour referred (at [39]) to the correct approach under the Family Provision Act 1969 (ACT) (FP Act) to be as follows: (a) The statute requires certain thresholds to be met before an order can be made adjusting property interests. (b) Those thresholds must be met even where there is agreement compromising a claim. (c) The fact of an agreement is a very significant matter for the court in determining whether to make orders in accordance with that agreement, even where one party to the agreement opposes giving effect to it. (d) That is particularly so where the parties to the agreement were represented by a solicitor and counsel at the time that the agreement was entered into. (e) The significance of the agreement arises because: (i) settlements of such proceedings are to be encouraged as a matter of policy; and (ii) the parties, rather than the court, will have the best knowledge of the facts of the case and the interests of the parties. (f) The orders proposed by an agreement must be assessed in light of the fact that: (i) it has been reached without a trial in circumstances that relieve the parties from the risks and costs of proceeding further with their dispute; and (ii) a range of outcomes are possible having regard to the evaluative nature of the judgment required by the FP Act and the range of judicial officers who may hear the case. (g) The circumstances in which agreements to compromise a claim will not be implemented by orders of the court are not closed. However, if the proposed orders lie outside the range of possible outcomes, that may indicate that the compromise is for a purpose extraneous to those of the Act and should not be implemented. (h) Where one party opposes the making of orders in accordance with a previously made compromise agreement, that will require the court to consider the underlying facts to a greater extent, in order to ascertain whether there would be some injustice in giving effect to the agreement. But mere opposition from a party that previously entered such an agreement is insufficient to require trial of the action or indicate that it is unjust to give effect to the agreement.

10. The Court has inherent jurisdiction to set aside orders made by consent if the judgment has been irregularly entered: Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 at 48. In that judgment, Brennan J (sitting as a single judge of the ACT Supreme Court) said: When the inherent jurisdiction of the Court is invoked, the court will inquire whether the entered judgment correctly expresses the court’s decision (Re Swire (1895) 30 Ch D 239) or perhaps whether it requires amendment to keep its records in line with the real position (Mercer Corpn v Rolls Royce Ltd [1972] 1 All ER 211; [1971] 1 WLR 1520) or whether the judgment proceeded from a hearing which was so irregular as to be treated as a nullity (Craig v Kanssen [1943] 2 KB 256; Cameron v Cole (1943) 68 CLR 571 at 589). The jurisdiction may be invoked by application in the proceedings in which judgment was entered.

11. That jurisdiction is reflected in the Court Procedures Rules 2006 (ACT) (Rules), where r 1613(2)(d) provides that the Court “may set aside an order at any time if …the order does not reflect the court’s intention at the time the order was made”.

12. Rule 1613(2)(e) of the Rules is also relevant to the present application. It allows the court to set aside an order at any time if the party who has the benefit of the order consents.

13. An alternative source of power lies in s 9A of the FP Act (emphasis added): 9A Variation, suspension and discharge of orders (1) In this section: previous order means an order made under this Act that has not been discharged. (2) Subject to this Act, on application made by or on behalf of the administrator of the estate of a deceased person or a person beneficially entitled to, or having an interest in, a part of the estate of a deceased person, the Supreme Court may, in its discretion and having regard to all the circumstances of the case, by order— (a) vary a previous order relating to that estate by reducing the amount of the provision made by that previous order; or (b) suspend a previous order relating to that estate for a specified period; or (c) discharge a previous order relating to that estate. (3) Subject to this Act, if by a previous order the Supreme Court has directed that provision by way of periodical payments or the benefit of the investment of a lump sum be made for a person out of the estate of a deceased person, on application made by or on behalf of the person, if the court is satisfied that the provision is not adequate for the proper maintenance, education or advancement in life of the person, the court may, in its discretion and having regard to all the circumstances of the case, by order, vary the previous order by increasing the amount of the provision. (4) The applicant for an order under subsection (2) shall cause notice of the application to be served on the person in whose favour the previous order was made. (5) If the Supreme Court makes an order under subsection (2), the court may make any further orders that it thinks fit for the purpose of giving effect to the order under subsection (2) and any other orders that it considers just.

14. The emphasised parts of the section set out above indicate that the application presently before the Court falls squarely within that section. The Court is empowered to exercise its discretion to discharge the previous order made, and to make any further orders that it thinks fit and considers just, having regard to all the circumstances of the case. Should the orders be set aside here?

The Estate

15. The evidence before the Court included a number of detailed affidavits. The key points drawn from the evidence are that the Estate comprised two properties, one in Hackett and the other in Lyneham.

The Will

16. Provision was made under the Will for Marilouise. It included: (a) a right of residence in the Lyneham property (where she had lived for the past 17 years); (b) in the event that the Lyneham property was sold, 25% of the net sale proceeds; (c) in the event that the Hackett property was sold, 16.66% of the net sale proceeds; (d) jewellery items said to have been of negligible monetary value; and (e) an equal share of the residuary estate together with 10 other beneficiaries. The value of that share was approximately $1,700 as at 10 May 2021.

17. Provision was also made under the Will for Ian. It included: (a) a right of residence in the Hackett property; (b) in the event that the Hackett property was sold, 50% of the net sale proceeds; (c) furniture items said to have been of negligible monetary value; and (d) an equal share of the residuary estate (amounting to $1,700 as set out above).

18. The only provision made for Paul under the Will was as an equal beneficiary of the residuary estate together with 10 other beneficiaries. That is, Paul was left with what amounted to $1,700.

The Settlement in May 2021

19. The settlement that was previously reached between Paul and his siblings, and to which the consent orders made on 10 May 2021 gave effect, was to transfer the Lyneham property to Paul absolutely. The provision of a right of residence in the Hackett property for Ian remained.

20. Accordingly, the settlement that was previously reached between Paul and his siblings would have: (a) Resulted in Marilouise being evicted from the Lyneham property by reason of the Lyneham property being transferred to Paul absolutely, and (b) Removed her right to any sale proceeds of the Lyneham property.

21. Following the making of the orders, Marilouise was effectively left with a contingent right to part of the proceeds of sale if Ian ever ceased living permanently in the Hackett property, and $1,700. The effect of the previous settlement was that, insofar as the Testator had made express provision for Marilouise to remain in her home of 17 years, the provision was effectively extinguished.

22. None of this was put before the Court when the consent orders were made on 10 May 2021.

The role of an executor

23. Rule 210 of the Rules provides: Each person whose presence as a party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in a proceeding must be included as a party to the proceeding.

24. That rule works in conjunction with r 256 in estate matters. Rule 256 provides for the usual position that the executor of an Estate (the personal representative or trustee) is taken to represent every beneficiary. The relevant parts of the rule are as follows: 256 Representation—by trustees and personal representatives (1) A proceeding in relation to …a deceased person's estate, may be started or continued by or against the trustees, or personal representatives, without including anyone with a beneficial interest in or claim against the trust or estate (a beneficiary). (2) … (3) In a proceeding mentioned in subrule (1)— (a) the trustees or personal representatives are taken to represent every beneficiary; and (b) an order made in the proceeding is binding on every beneficiary. (4) However, the court may order that an order does not bind a beneficiary if satisfied that the trustee or personal representative did not in fact represent the beneficiary. … (5) Also, the court may, at any stage in the proceeding, order that a beneficiary be made a party to the proceeding in addition to or instead of an existing party. (6) …

25. Section 8(4) of the FP Act also provides: (4) The Supreme Court may regard an application for provision out of the estate of a deceased person by a single person as an application made on behalf of all the persons entitled to make applications for provision out of the estate of the deceased person.

26. Section 10 of the FP Act requires an application for an order under ss 8 or 9A of the FP Act to be served on each person who is an administrator of the estate of the deceased person.

27. Through the combination of these provisions, it can be seen that the Court places great reliance on the fact that, unless orders are made to the contrary, the executor of an estate is the deemed representative of every beneficiary, acts in their interests and binds all beneficiaries who have not been made a party or brought a separate application for family provision.

28. In Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 (Tobin), Meagher JA referred at [94] (citing a number of authorities) to the executor’s role “as protector of the Will”, and to the obligations upon executors “to place before the court all evidence which bore on the issues raised” by a claim. That duty extends to presenting to the court, if necessary, evidence as to the beneficiaries’ own financial resources and needs.

29. Meagher JA continued at [94] (citations omitted): The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs…

30. Importantly, absent such evidence, the Court is entitled to infer that a beneficiary does not wish to advance a competing financial claim upon the bounty of the deceased. See also Poletti v Jones [2015] NSWCA 107; 13 ASTLR 113 at [23]; Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).

The circumstances of the present case

31. At the time Paul made his application for family provision, he had been made bankrupt. He was living in a caravan. He owned no real property, had very limited savings, no superannuation, suffered from depression and anxiety, and had sustained injuries in a car accident in 2013. He had been receiving treatment for bladder cancer since 2015.

32. However, by way of competing claim, the evidence now provided to the Court on this application included Marilouise’s affidavit to the effect that she had lived in the Lyneham property for 17 years, was unemployed as a result of injuries suffered in an accident (for which she was receiving a disability support pension), and continued to suffer from continuous chronic pain. She relied on a food bank and charities in order to meet her basic daily needs.

33. The consent orders made on 10 May 2021 made no adjustment in respect of Ian’s entitlements under the Will. Accordingly, this was a case where the interest of at least one of the personal representatives of the Estate conflicted with the interests of Marilouise as one of the beneficiaries and her opposition to the settlement was known to the executors.

34. Even if there were very sound reasons for the settlement that had been reached, it was incumbent upon the executors, as the representatives of all beneficiaries, to in fact represent their interests, to enable the court to adjudicate effectively and completely on all issues in dispute. This may be achieved by putting the evidence of any competing financial claim before the Court on the settlement agreement reached when proposing the consent orders reflecting the settlement. Alternatively, it may be appropriate to cause or permit Marilouise to be joined to the proceeding pursuant to r 210, and to make her own arguments on the proposed consent orders.

35. At the time the orders were made by consent, the Court was not informed of any competing position of any beneficiary. It proceeded on a misapprehension that the executor continued to represent the interests of all beneficiaries so that the orders bound all beneficiaries. The evidence disclosed that in the case of Marilouise, the executors did not represent her or her interests. Those interests were in fact significantly adversely affected by the consent orders made and conflicted with the interests of one of the executors, insofar as Ian’s entitlement under the Will was not adjusted at all, whereas Marilouise’s entitlement was greatly reduced. The orders should therefore be set aside.

36. As a separate reason, even if the inherent jurisdiction of the Court were not a basis for setting aside the orders previously made, I accept the submission of the parties that the circumstances of the case provide a strong basis for the exercise of the Court’s discretion under s 9A of the FP Act, to discharge the orders made on 10 May 2021 and make such further orders as the Court sees fit.

Should the Court make the orders sought by consent?

37. It is unnecessary to delve further into the evidence. The competing positions of those involved are sufficiently set out from the factual circumstances above. They establish that the statutory thresholds enlivening the Court’s power to make an order under the FP Act adjusting the provision made under the Will, and in particular the property interests, are clearly met.

38. The orders now sought by the parties divide the proceeds of sale of the two properties between Paul, Ian and Marilouise in proportions settled by each of them. The orders by consent are otherwise appropriate to be made.

39. Finally, it is important to observe that this case, and the recent case of Richardson, are not to be viewed as requiring detailed affidavit evidence to be prepared and put before the Court in every case where the parties reach a settlement and seek orders by consent under the FP Act. The expressed objective of maintaining proportionality of costs in estate disputes (as to which see Richardson at [114]-[116]) would be defeated if such affidavit evidence were required every time consent orders resolving a family provision claim were brought before the court. Similarly, where a settlement is reached before any affidavit evidence has been prepared, it would plainly be undesirable for further material to then be prepared in order to establish the Court’s jurisdiction and the appropriateness of the orders sought by consent.

40. The present case is better seen as an example of the importance of executors recognising the role that they perform in cases brought under the FP Act, including an appreciation of the representative capacity in which they act when they participate in, and settle, a proceeding under the FP Act. There will be cases where orders by consent finally resolving a proceeding may not require any supporting material or submissions at all. In other cases, what is required to support orders being made by consent may be slight or more substantive. Much will depend on the nature and age of the beneficiaries, the various interests involved, and the proposed extent of interference with the terms of a will.

41. A proper understanding of the executor’s obligation in relation to the interests of all beneficiaries will assist executors firstly in placing before the Court the relevant material for the making of consent orders, and secondly, in ensuring that those who may need to be heard in relation to the orders have that opportunity.

Orders

42. For those reasons the following orders were made: (1) Pursuant to rr 210 and 256(5) of the Court Procedures Rules 2006 (ACT) (Rules), Marilouise Rijven (Marilouise) is made a party to the proceeding in addition to the existing parties. (2) Pursuant to s 9A of the Family Provision Act 1969 (ACT) and r 1613(2)(d) and (2)(e) of the Rules, the Orders made by the Court on 10 May 2021 in this proceeding are set aside. (3) In lieu of the provision made for her in the Will of Maria Adriana Rijven dated 31 July 2014 (Will), the sum of $26,000 is to be paid to Shantini Devi. (4) In lieu of the provision made for them under the Will, the net proceeds of the sale of the properties located at [address redacted] Hackett in the Australian Capital Territory and [address redacted] Lyneham in the Australian Capital Territory) are to be distributed as follows: (a) 30.5% to Paul Martin Rijven ; (b) 34.75% to Gregory Ian Rijven; and (c) 34.75% to Marilouise. (5) Except as provided for in Orders 4 and 5 made by the Court on 10 May 2021, and the payment to Marilouise of $2,000, the parties bear their own costs. (6) THE COURT NOTES: The agreement of the parties, the terms of which have been read onto the record on 11 September 2023.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: