Rijven v Lynam and Rijven

Rijven v Lynam and Rijven [2023] ACTSC 265
Supreme Court of the Australian Capital Territory
McWilliam J
Family provision – one of the three children of a deceased brought a family provision application against the executors, who were the other two children – the parties reached agreement, and the Court gave effect to that agreement in consent orders – the estranged wife of one of the executors was a beneficiary under the will – this estranged wife was not a party to the proceeding and was not heard – she had attended the hearing, made her opposition known to the executors, and had tried to file an affidavit explaining her position to the Court – she contended that she had been denied procedural fairness, and filed an application to set aside the consent orders – all parties then reached a further agreement, and sought to set aside the previous consent orders and have new consent orders made – held: the Court’s role in making orders in family provision proceedings involves more than placing a rubber stamp on the transaction – the Family Provision Act 1969 (ACT) requires certain thresholds to be met before an order can be made adjusting property interests, and those thresholds must be met even where there is agreement compromising a claim – 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, particularly so where the parties to the agreement were represented by a solicitor and counsel at the time that the agreement was entered into – settlements of family provision proceedings are to be encouraged as a matter of policy – where one party opposes the making of orders in accordance with a 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 – the Court has inherent jurisdiction to set aside orders made by consent if the judgment has been irregularly entered, which is reflected in r1613(2)(d) the Court Procedures Rules 2006 (ACT) – this had been a case where the interest of at least one of the executors had conflicted with the interests of his estranged wife as one of the beneficiaries, and her opposition to the settlement had been known to the executors – 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 – at the time the first orders were made by consent, the Court was not informed of any competing position of any beneficiary, and proceeded on a misapprehension that the executors continued to represent the interests of all beneficiaries so that the orders bound all beneficiaries – the evidence established that the statutory thresholds enlivening the Court’s power to make an order under the Family Provision Act had been met – first consent order set aside and new consent orders made.
Rijven