2.11: Litigation representative required
2.12: Types of litigation representatives and service of documents
2.13: Automatic litigation representatives
2.15: Court appointment in absence of self-appointment
2.16: Court-appointed litigation representatives in limited cases

Case Summary

This was an Application for advice and direction brought by the personal representative of the estate concerning certain assets which were the subject of a prior designation to the benefit of the deceased’s common law partner, Ms. Scovil, now also deceased.

The Court considered whether the estate of Ms. Scovil required a litigation representative in the matter. As Ms. Scovil’s estate has an interest in the Action, by operation of Rule 2.11, the Court held that her estate must have a litigation representative, unless the Court otherwise orders. The Court specifically noted that if the earlier beneficiary designations in favour of Ms. Scovil are held to be unaffected by the will of the estate of the Applicant, then her estate would be entitled to receive the benefits of certain accounts. As there appeared to be no heirs to her estate, the Public Trustee would mostly likely receive and hold these funds, by operation of the relevant provisions of the Public Trustee Act, SA 2004, C P-44.1. Ultimately, the funds may be transferred to the Minister, by operation of the Unclaimed Personal Property and Vested Property Act, SA 2007, c U-1.5.

Given the possible outcomes, the Court found that Rule 2.11 not only operates such that Ms. Scovil’s estate must have a litigation representative, but that it is imperative her estate be represented in the within Action. By operation of Rules 2.15 and 2.16, the Court held it could appoint a litigation representative and noted that the Public Trustee would appear the most likely and appropriate litigation representative. As the Public Trustee did not have notice of the Application, the Court declined to appoint the Public Trustee as litigation representative and directed the Applicant to provide the Public Trustee with notice. At that time, in the event that the Public Trustee wished to make submissions as to why it should not be the litigation representative, it was directed to do so by bringing the matter before the Court in morning Chambers in advance of the Application for further advice and direction, failing which objection, it would be presumptively appointed as the litigation representative for Ms. Scovil’s estate.

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