The new By Lawyers Family Provision claims – SA Guide has received its first update. A recent Supreme Court case on joinder has been added.
A solicitor might receive instructions from a potential claimant after the client receives notice, as a person with an interest in the estate, from another claimant who has already commenced proceedings. Plaintiffs in Family Provision claims are required under the Inheritance (Family Provision) Act 1972 to serve other potential claimants with the proceedings.
Those potential claimants may then make an interlocutory application within 28 days of service, seeking to be joined as a plaintiff under s 8(7) of the Act. That section provides that the court may, ‘if satisfied that it is just and expedient to do so’, permit joinder of further claimants at any time prior to the final determination of the proceedings.
The recent Supreme Court case of Columbus v Efstathis & Ors  SASC 149 makes it clear that in considering such an application, the court will in effect need to be satisfied that the applicant has reasonable prospects of success.
In that case the court found there was no reasonable prospect of the applicant, a grandchild of the deceased, establishing any moral obligation on the part of the deceased to have made provision for the applicant out of the estate. Leave for the applicant to be joined as a claimant was therefore refused.
In the course of its determination, the court reviewed the case law on the status of grandchildren with Family Provision claims, affirming the NSW Supreme Court decision of Bowditch v NSW Trustee and Guardian  NSWSC 275 in finding that ‘as a general rule a grandparent does not have a responsibility to make provision for a grandchild in his or her testamentary disposition’.
This useful case has been added to the Family Provision claims – SA Commentary on page 25 under Acting for a potential claimant.