IN THE ESTATE OF MATTHEWS (DECEASED) [2026] SASC 75

Applicants: ALISON CLARE EVENDEN & MARK PETER JAPPE Counsel: MR M TAYLOR - Solicitor: ADELTA LEGAL Hearing Date/s: 16/03/2026, 01/04/2026 File No/s: CIV-26-000663 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. IN THE ESTATE OF MATTHEWS (DECEASED) [2026] SASC 75 Reasons for Decision of the Honourable Justice Gray (ex tempore) 1 April 2026 SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - OTHER MATTERS SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - GENERALLY The applicants are the executors of the estate of Ms Marie Matthews (the deceased), who died on 7 June 2023. A grant of probate issued to the applicants on 24 April 2024. The applicants apply for a barring order under s 29 of the Trustee Act 1936 (SA) and for ancillary orders for advice and directions in relation to the administration of the deceased's estate. Held, granting the application: (1) Section 29(2) of the Trustee Act 1936 (SA) provides for a representative or trustee, to apply to the Court for an order that a claim be absolutely barred. Four elements must be satisfied: (i) the trustee receives a claim or notice of claim; (ii) the trustee disputes the claim; (iii) the trustee gives the proposed claimant a notice in writing requiring the claimant to withdraw or institute proceedings within six months; and (iv) the claimant has not done so. If those elements are satisfied, the Court has a discretion to make such orders as it considers just, and any orders made bind all persons they affect: [12]–[14]. (2) The power conferred by s 29(2) is to be exercised consistently with the protective purpose of the provision. It is intended to protect the representative or trustee, to provide claimants with a reasonable opportunity to make claims, and to serve the public interest in the due administration of estates and trusts without unnecessary delay or expense: [15]–[16]. Trustee Act 1936 (SA) s 29; Succession Act 2023 (SA) s 95, referred to. Hall v Carney (No 3) [2021] SASCA 37, considered. -- 1 of 6 -- -- 2 of 6 -- IN THE ESTATE OF MATTHEWS (DECEASED) [2026] SASC 75 Civil: Application 1 GRAY J (ex tempore): This matter concerns an application brought by Ms Alison Clare Evenden and Mr Mark Jappe (‘the applicants’), in their capacities as executors and trustees of the estate of Ms Marie Matthews (‘the deceased’), who died on 7 June 2023. A grant of probate issued on 24 April 2024. The applicants apply for a barring order under s 29 of the Trustee Act 1936 (SA) (‘the Act’) and ancillary orders for advice and directions. 2 The background to this matter is that on 21 March 2019, the deceased executed her last will (‘the will’).1 The will inter alia gifts the residue of her estate to her brother, Mr Pierre Laschuk. The deceased’s estate has an approximate value of $377,019.69 and is held entirely in the Adelta Legal trust account.2 The deceased and Mr Wilfred Wahrbichler (‘Wilfred’), had been in a de facto relationship for many years, separating shortly before Wilfred’s death. I will refer to the parties by their first name; no disrespect is intended by doing so. 3 On 4 August 2021, Wilfred died. No property settlement proceedings were commenced by Wilfred, the deceased, or Public Trustee as the administrator for the deceased3 in the Federal Circuit and Family Court of Australia following separation. Wilfred’s last will is dated 9 June 2010. Wilfred’s will inter alia appointed the deceased as sole executor and beneficiary should she survive him for one calendar month. Accordingly, the deceased’s estate stands to receive the entire benefit of Wilfred’s estate, which has an approximate value of $16,423.47.4 4 Wilfred is survived by his only child, Mr Raymond Wahrbichler (‘Raymond’). Raymond has made various assertions that the deceased’s estate holds money on trust for Wilfred’s estate.5 The deceased’s estate is to receive the entire benefit of Wilfred’s estate in any event. 5 As a result of Raymond’s assertions, the applicants’ duty to maintain the size of the deceased’s estate, conflicts in some ways potentially with their duty to maximise the size of Wilfred’s estate as persons entitled to take a grant in Wilfred’s estate. 6 On 19 December 2024, the applicants filed applications to renounce their right and title to probate and to letters of administration with the will annexed of 1 ‘Affidavit of Mark Peter Jappe’, CIV-26-000663, 15 January 2026 (FDN 2), Exhibit MPJ-1 (‘Jappe Affidavit’). 2 ‘Second Affidavit of Elyse Caitlin Ramsay, CIV-26-000663, 10 February 2026 (FDN 6) at [2]. 3 Jappe Affidavit at [11], [21]. 4 Jappe Affidavit, Exhibit MPJ-2. 5 Jappe Affidavit at [14]-[23]. -- 3 of 6 -- [2026] SASC 75 Gray J 2 Wilfred’s estate (‘the renunciation applications’). The renunciation applications were accepted by the Registrar of Probate on 5 June 2025.6 7 On 11 December 2024, the applicants served on Raymond’s solicitor a notice under s 29(1) of the Act.7 Following that, various correspondence passed between Raymond’s solicitors and the applicants. 8 On 28 November 2025, Raymond’s solicitors advised the applicants that Raymond was still in the process of applying for a grant of letters of administration. There were, however, a number of issues concerning priority in the application for a grant of letters of administration in respect of Wilfred’s estate. As at the time the originating application in this matter was filed,8 Raymond had neither instituted proceedings, nor withdrawn his notified claims against the deceased’s estate in his capacity as the foreshadowed administrator of Wilfred’s estate.9 9 Raymond did not have standing to institute proceedings vis-à-vis his notified claims but intended to make an application to seek such standing under letters of administration. Raymond had also not brought an application for provision from the deceased’s estate pursuant to the Succession Act 2023 (SA) within six months since the date probate was granted to the applicants in the deceased’s estate. 10 Ultimately, in these proceedings on 17 February 2026, counsel for Raymond and counsel appearing for the Public Trustee informed the Court that their respective clients did not oppose orders in terms set out in paragraphs 1, 2 and 3 of the originating application,10 which as I have indicated, are the barring orders and the ancillary orders for advice and directions. 11 Turning to the issue of the barring order, s 29(2) of the Act provides: Where a representative or trustee has received a claim or notice of claim against the estate of a deceased person or against a trust property, and he disputes the claim, that representative or trustee may give to the person making the claim, or giving the notice, a notice in writing that the claim is disputed, and requiring the claimant either to withdraw the claim or to institute proceedings to enforce it within six months of the service of the last-mentioned notice; and if the claim is not so withdrawn or prosecuted, the representative or trustee may apply by summons in chambers to any judge of the Supreme Court, on affidavit setting out the facts for an order that, as against such representative or trustee, the claim shall be absolutely barred, and any such judge may make such order as he deems just, and the order shall bind all persons whom it purports to affect. 12 There are a number of elements that must be satisfied in respect of s 29(2). These include: 6 Files PROB-24-009235 and PROB-24-009236. 7 Jappe Affidavit at [27], Exhibit MPJ-4. 8 Jappe Affidavit at Exhibit MPJ-1. 9 Jappe Affidavit at [38]-[39]. 10 Record of Outcome, CIV-26-000663, 17 February 2026 (FDN 9). -- 4 of 6 -- [2026] SASC 75 Gray J 3 1. Firstly, that the trustee receives a claim or notice of claim against the deceased estate. 2. Secondly, that the trustee disputes the claim or notice of claim. 3. Thirdly, the trustee may give the proposed claimant a notice in writing requiring the proposed claimant to withdraw the claim or institute proceedings to enforce a claim within six months. 4. Fourthly, if the proposed claimant does not withdraw their claim or institute proceedings, then the trustee can apply to the Supreme Court for a barring order. 13 If those matters are satisfied, a Justice of the Supreme Court may exercise their discretion11 to make such orders as may be deemed just and any orders made will bind all persons they affect. 14 In this case I find, on the evidence before this Court, that the four requirements that I have set out above pursuant to s 29(2) of the Act have been satisfied. All persons who may either be affected by the barring order have been given an opportunity to be heard and either do not oppose the orders, or have indicated their consent to the orders. 15 The purpose of a provision for a barring order is to protect a representative or trustee. Such orders are also designed to provide claimants with a reasonable opportunity to make claims. The procedure also serves as an important public interest. It is manifestly in the public interest that estates and trusts are duly administered with any associated time and expense minimised. 16 As was held by the Court in Hall v Carney (No 3),12 it is not in the interests of beneficiaries, trustees or the broader community that administrations be delayed whilst claimants consider their options, or worse, hold off making claims in the hope of extracting a commercial settlement driven by a desire or a need to finalise an estate. 17 Raymond neither withdrew nor prosecuted his claims within six months of the date of service of the s 29(2) notice, and as such, the estate has not been able to be fully administered. I therefore consider, having regard to the provisions of the Act and the evidence before this Court, that it is appropriate to make the orders sought in the originating application. 18 In terms of the draft minutes, FDN 13, orders 1-3 should be made. These orders are not opposed and the criteria for the making of the barring order have been made out. The other orders provide for the administration and distribution of 11 Hall v Carney (No 3) [2021] SASCA 37 at [69]-[71]. 12 [2021] SASCA 37. -- 5 of 6 -- [2026] SASC 75 Gray J 4 the estate and will permit the applicants to continue their administration of the estate with certainty. 19 Accordingly, I exercise my discretion to make the orders sought to allow the administration of the estate to conclude. -- 6 of 6 --