Barns v Barns [2003] HCA 9

Barns v Barns [2003] HCA 9

Assets held by the deceased at death are part of the estate for the purposes of s 7 of the Act, even if their devolution is governed by a deed and mutual wills. The deed and mutual wills do not prevent an application for provision under the Act; contractual promises to make certain testamentary dispositions are always subject to the potential operation of the Act. The High Court does not follow Schaefer v Schuhmann and instead applies a purposive interpretation favouring the appellant’s right to apply, as in Dillon.

Parties
Appellant: Kathryn Fay Barns; First Respondent: Malcolm Phillip Barns; Second Respondent: Alice Elizabeth Barns; Third Respondent: Michelle Louise Fisher; Third Respondent: Rhianna Kate Fisher
Jurisdiction
Australia
Judgment Date
07 March 2003
Procedural Posture
Appeal / Final Appellate Judgment From High Court of Australia
Outcome
Appeals allowed.
Legal Topics
Family Provision, Mutual Wills, Deed Validity, Estate Definition, Public Policy
Succession Law Family Provision Mutual Wills Deed Validity Estate Definition Public Policy

Case Brief

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Parties

Kathryn Fay Barns

Appellant

Malcolm Phillip Barns

First Respondent

Alice Elizabeth Barns

Second Respondent

Michelle Louise Fisher

Third Respondent

Rhianna Kate Fisher

Third Respondent

Procedural Posture

Appeal / Final Appellate Judgment From High Court of Australia

Legal Issues

  1. 1 Whether property subject to a deed and mutual wills is part of the estate for family provision claims
  2. 2 Whether a deed restricting testamentary disposition can exclude the jurisdiction of the court under the Inheritance (Family Provision) Act 1972 (SA)
  3. 3 Whether the deed is invalid for reasons of public policy

Ratio Decidendi

Assets held by the deceased at death are part of the estate for the purposes of s 7 of the Act, even if their devolution is governed by a deed and mutual wills. The deed and mutual wills do not prevent an application for provision under the Act; contractual promises to make certain testamentary dispositions are always subject to the potential operation of the Act. The High Court does not follow Schaefer v Schuhmann and instead applies a purposive interpretation favouring the appellant’s right to apply, as in Dillon.

Court Disposition

Appeals allowed.

Orders

  • Set aside orders of the Full Court of the Supreme Court of South Australia dated 12 October 2001 and 6 March 2002.
  • Declare that the Deed of 2 May 1996 does not operate to render incompetent an application by the appellant or the third respondents for an order for provision out of the estate of Mr Lyle Barns pursuant to the Inheritance (Family Provision) Act 1972 (SA).