Phillip Frederick Cutting v Public Trustee for the Northern Territory

[2017] NTSC 6

Supreme Court of the Northern Territory

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Interrogate

Catchwords

1. Practice and Procedure
2. › Joinder of parties
3. › Family Provision Act claims
4. › Whether beneficiaries should be joined as parties
5. › General rule that only executors named as defendant
6. › Exceptions to general rule
7. › Supreme Court Rules (NT), r 9.06
1. Succession Law
2. › Family provision
3. › Compromise of claims
4. › Court approval of compromise
5. › Whether agreement between applicant and executor binding without court approval
6. › Role of executor in assessing and compromising claims
7. › Family Provision Act (NT), s 8
1. Succession Law
2. › Executors and administrators
3. › Duties of executors
4. › Duty to defend the will
5. › Whether former executors failed in duty by agreeing to compromise
6. › Whether substituted executor can adequately represent beneficiaries' interests

Quick Take

The general rule that only the executor is named as defendant in Family Provision Act proceedings applies equally to proceedings seeking court approval of a compromise. Beneficiaries seeking joinder must demonstrate that the executor is not fulfilling their duty to represent beneficiaries' interests, or that some other exceptional circumstance exists. The appointment of the Public Trustee as a substitute executor is capable of curing any deficiency in the former executors' conduct, and the requirement for court approval of the compromise provides a further safeguard for beneficiaries' interests.