RISK WATCH
When is an estate distributed?: An important new authority for all Wills and Estates practitioners GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS
T
he South Australian Court of Appeal has recently handed down an interesting authority — Noyce v Jeromel [2021] SASCA 87 — which should be noted by all practitioners advising on claims under the Inheritance (Family Provision) Act 1972 (SA) (IFP ACT) and all practitioners administering estates.
The facts of the case raised an acute point as to when an estate has been distributed for the purposes of Section 8 (5) of the IFP Act, which provides that any distribution of any part of the estate made before an application for an extension of time shall not be disturbed by reason of that application or any order
made on that application. This subsection must be read in conjunction with Section 8 (4) of the IFP Act, which provides that an application for an extension of time to commence an application for further provision shall be made before the final distribution of the estate. The facts of the case were as follows:
PRE-1992
Irene Jeromel was married to Ferdinand Jeromel. They had three children, Fred Jeromel, Danuta Noyce and Paul Jeromel.
1992
Irene became the owner of a property on Arnold Terrace at Royal Park.
1993
Ferdinand and Irene became owners as joint tenants of a property on Royal Terrace at Royal Park.
2000
Ferdinand died in 2000. No grant of probate or letter of administration was sought or made in respect of his estate and his name remained on the certificate of title for the Royal Terrace property.
2017
Fred died.
2018
Irene made a will (her last) appointing Paul as executor and trustee. She left $2000 each to Danuta and Danuta’s two children. The residual was left to Paul.
SEPTEMBER 2019
Irene died. The major assets of Irene’s estate were the Arnold Terrace and Royal Terrace properties.
17 NOVEMBER 2019 Probate of Irene’s will was granted to Paul. 17 MAY 2020
The prima facie time limit for an application for further provision out of Irene’s estate under the IFP Act expired.
19 MAY 2020
Paul signed a Client Authorisation document authorising his lawyers to do certain things to effect the gifts made in Irene’s will. Paul’s lawyers signed and lodged for registration at Land Services SA three documents. These were: i. an Application to Register Death by Survivor in respect of the Royal Terrace property, describing the Applicant as “Paul… as executor of the deceased proprietor vide Probate dated 17 November 2019”; ii. a Transmission Application by Personal Representatives in respect of both properties describing Paul as Applicant in the same way; and iii. a Transfer of both properties from Paul as executor of the estate of the deceased proprietor vide Probate dated 17 November, 2019 to Paul as beneficiary. It will be immediately noted that the references to the Probate in the above documents made no distinction between Irene’s Probate and the estate of Ferdinand, where no probate had been sought.
29 MAY 2020
Danuta instituted an action for further provision from Irene’s estate (i.e. some 12 days after the time limit expired). This action included an application for an extension of time, as well as an interlocutory application seeking an injunction restraining Paul from distributing any assets not already distributed.
1 JUNE 2020
Paul’s lawyer received a requisition from the Registrar-General requiring a change to the description of Paul on the Application to Register Death document so as to reflect the proper position with respect to Ferdinand’s estate. Paul’s lawyer initialled the necessary amendments.
2 JUNE 2020
Danuta’s originating application, injunction application and supporting affidavits were served on Paul. The injunction application was listed for hearing at 10am on 3 June, 2020.
3 JUNE 2020
Shortly after 10am, a Master granted an interim injunction restraining Paul from taking any further steps to distribute and restraining the Registrar-General from registering the Transfer in respect of both properties. Later that day a staff member of Paul’s lawyer lodged the amended Application to Register Death.
18 THE BULLETIN November 2021
