Rasheed & Ors v Rasheed & Ors No. SCGRG-98-119 Judgment No. S88

(1999) 73 SASR 346; [1999] SASC 88

Supreme Court of South Australia

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Interrogate

Catchwords

1. Succession Law
2. › Probate
3. › Revocation of probate
4. › Delay and acquiescence
5. › Whether delay combined with acquiescence constitutes abuse of process
6. › Whether respondents prejudiced in ability to prove due execution
7. › Onus of proving due execution where testatrix illiterate
1. Practice and Procedure
2. › Abuse of process
3. › Delay and acquiescence
4. › Revocation of probate proceedings commenced 22 years after death
5. › Whether deliberate decision not to challenge will followed by later proceedings constitutes abuse of process
1. Succession Law
2. › Family provision
3. › Extension of time
4. › Whether claims under Inheritance (Family Provision) Act should be permitted to proceed notwithstanding delay
5. › Inheritance (Family Provision) Act 1972 (SA), s 8(2)
1. Practice and Procedure
2. › Striking out versus dismissal
3. › Whether court should strike out action or dismiss it
4. › Inherent jurisdiction

Quick Take

Delay alone, even of 20+ years, does not bar an application to revoke probate; however, delay combined with acquiescence — particularly where the applicant made a deliberate decision not to challenge the will with knowledge of the relevant facts — constitutes an abuse of process justifying dismissal. Family provision claims under the Inheritance (Family Provision) Act 1972 (SA) are treated differently from probate revocation claims for the purpose of assessing delay, and an applicant may still seek an extension of time under s 8(2) even where the probate revocation claim is dismissed. Claims for revocation of probate and relief under the Inheritance (Family Provision) Act should not be combined in the same proceedings.