MARK JORDAN v MALCOLM KARL LANE No Attendance - [2025] SASC 209

Applicant: MARK JORDAN Counsel: DR V GILLILAND - Solicitor: WELDEN & COLUCCIO LAWYERS First Respondent: INESSA MARIA LANE In Person Second Respondent: MALCOLM KARL LANE No Attendance - Solicitor: SA ESTATE AND SUCCESSION LAWYERS Hearing Date/s: 27/08/2025 File No/s: PROB-24-005622 B SUPREME COURT OF SOUTH AUSTRALIA (Testamentary Causes Jurisdiction) 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 JOSEPH JAMES LANE (DECEASED) [2025] SASC 209 Judgment of the Honourable Justice Hughes 23 December 2025 SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - GENERALLY SUCCESSION - INTESTACY AND DISTRIBUTION ON INTESTACY SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - ADVANCES AND HOTCHPOT EQUITY - GENERAL PRINCIPLES - EQUITABLE DOCTRINES AND PRESUMPTIONS - CONTRIBUTION - GENERALLY STATUTES - ACTS OF PARLIAMENT - REPEAL - SAVINGS AND TRANSITIONAL CLAUSES WITHIN REPEALING ACT An administrator applied for advice or direction from the Court. The deceased died intestate and was survived by his adult children, a daughter (first respondent) and son (second respondent), being the only people entitled to share in the estate. Several years prior to his death, the deceased and the first respondent signed a sale and purchase contract for a property in Morphett Vale as joint tenants. The Court was required to determine whether the administrator, who is a retired solicitor, was appointed because of conflict between the two beneficiaries, would be justified to administer the estate on the basis that the registration of the first respondent on the title of the Morphett Vale property was a gift by the deceased within five years of his death and should accordingly be brought into hotchpot pursuant to s 72K of the Administration and Probate Act 1919. That was the position of the second respondent, who asserted that the first respondent had not given consideration for the acquisition of her joint interest in the Morphett Vale Property. The first respondent denied that there -- 1 of 27 -- was any act of gifting associated with the transaction, and in the alternative, that she had contributed to the purchase of the property. Held: 1. The transitional provisions in the Succession Act 2023 have the effect that this application to the Court for advice or direction brought under the Administration and Probate Act 1919 prior to the commencement of the Succession Act 2023 continues to be determined in accordance with the Administration and Probate Act 1919. 2. The deceased gifted to or settled upon the first respondent by having her name registered as the holder of a joint interest in the Morphett Vale property in circumstances in which she did not advance any consideration. Neither the fact that she did not view the transfer as a gift, nor that her interest was joint in nature prior to the deceased’s death, prevented the transaction being properly characterised as a gift or settlement. As the first respondent did not establish that the deceased had a contrary intention, s 72K of the Administration and Probate Act 1919 applies to the Morphett Vale property such that its value, at the time the gift of a joint interest was conferred upon her, should be brought into hotchpot. Administration and Probate Act 1919 (SA) s 16, s 21, s 69, s 72K; Succession Act 2023 (SA) Schedule 4, clause 2; Statute of Distributions Act 1670; Administration and Probate Act Amendment Act 1975 (No 2) (SA); Legislation Interpretation Act 2021 (SA) s 19, s 32; Uniform Civil Rules 2020 (SA) r 2.1, referred to. Re Mills [1952] SASR 274; Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336, applied. Estate of Tanner [2025] NSWSC 1078; Hall v Carney (No 3) (2021) 139 SASR 63; Burke v Public Trustee [2022] SASCA 64; Pepper v McBride [2025] SASC 103; Re Morgan (as executor of the estate of McLeish) [2025] SASC 79; Earl v Walkhom [2025] SASC 71; Dahm v Dahm [2025] SASC 70; Pelham v Pelham [1955] SASR 53; Murray v Hall (1849) 7 CB 441; Glavina v Pasvouris [2023] SASC 165, considered. -- 2 of 27 -- IN THE ESTATE OF JOSEPH JAMES LANE (DECEASED) [2025] SASC 209 Testamentary Causes Jurisdiction HUGHES J: Introduction 1 Joseph James Lane (‘the deceased’) died on 19 February 2021, aged 78. The deceased had two adult children, Ms Inessa Maria Lane (‘Inessa’) and Mr Malcolm Karl Lane (‘Malcolm’), who are the first and second respondents, respectively. 2 The deceased died intestate. 3 Inessa and Malcolm are the only people entitled to share in the deceased’s estate. They are estranged. They agreed that the estate should be administered and distributed by a third party. Mr Mark Jordan, solicitor,1 was appointed as the estate’s administrator. Mr Jordan was granted Letters of Administration on 15 December 2022. The proceedings 4 The administrator is the applicant in these proceedings. He has applied for the Court’s advice and direction under s 69 of the Administration and Probate Act 1919 as to the scope of the estate and in particular, whether real property jointly owned by the deceased prior to his death forms part of the estate. 5 The Court has received a joint tender book, and the parties’ written and oral submissions. While Inessa’s arguments have the effect that she considers that some of the affidavit content is irrelevant, there was no objection raised by any of the parties as to the Court receiving any affidavit material and considering it for the purposes of the decision. 6 In particular, I have considered the following documents: a. The applicant’s filed materials: (i) Affidavit of Mark Jordan dated 14 August 2024 (FDN 1); (ii) Statement of Agreed Facts dated 14 November 2024 (FDN 9);2 (iii) Submissions of the Applicant filed 18 July 2025 (FDN 46). b. Inessa’s filed materials: 1 Appointed when practising, now retired. 2 The applicant filed an agreed statement of facts on 14 November 2024. While Inessa initially informed the Court of her consent regarding this, she later disputed the accuracy of this statement and claimed that this was missing relevant information (FDN 23 at [2]). -- 3 of 27 -- [2025] SASC 209 Hughes J 2 (i) Response to Originating Application dated 11 December 2024 (FDN 12);3 (ii) Supporting document to response to originating application dated 11 December 2024 (FDN 13); (iii) Affidavit of Inessa Maria Lane dated 20 December 2024 (FDN 17); (iv) Affidavit of Inessa Maria Lane dated 26 March 2025 (FDN 23- 25);4 (v) Affidavit of Inessa Maria Lane dated 4 June 2025 (FDN 33); (vi) Written submissions dated 30 June 2025 (FDN 45); and (vii) Responding written submissions dated 22 August 2025 (FDN 48). c. Malcolm’s filed materials: (i) Affidavit of Malcolm Karl Lane dated 17 December 2024 (FDN 14); (ii) Affidavit of Andrew Zaharuiko dated 3 December 2024 (FDN 15); (iii) Affidavit of Kathleen Jennifer Lane dated 13 December 2024 (FDN 16); (iv) Affidavit of Malcolm Karl Lane dated 16 April 2025 (FDN 26); and (v) Written submissions dated 15 August 2025 (FDN 47). Uncontroversial background – the deceased’s estate 7 In June 1989, the deceased and his wife bought a house at 55 Henley Beach Road, Henley Beach 5022 (‘the Henley Beach Property’). The Henley Beach Property was where they lived together. 8 The Henley Beach Property was comprised of a main residence and a self- contained granny flat. 9 In April 1998, the deceased and his wife bought 10 Riverdell Court, Goolwa North 5214 (‘the Goolwa Property’). They rented the property out. 3 The respondent on 7 May 2025 filed a further response to Originating Application (FDN 29) which stated that she withdrew FDN 12 and consented. This document has since been overshadowed by the submissions of Inessa which is contrary to the position expressed in FDN 29. -- 4 of 27 -- [2025] SASC 209 Hughes J 3 10 In about mid-2005, Inessa moved into the granny flat at the rear of the Henley Beach Property. She was 37 years old at that time. 11 In 2002, Malcolm bought a property at Port Noarlunga and lived in it. However, he also worked out of the jurisdiction resulting in the property sometimes being vacant and sometimes rented out. 12 Upon his wife’s death on 18 September 2008, the deceased became the sole registered proprietor of the Henley Beach Property and the Goolwa Property. 13 On 25 October 2018, the deceased lodged an application to discharge the mortgage over the Henley Beach Property. There had been no money owing on the mortgage for some years. 14 On 2 November 2018, the deceased and Inessa signed a sale and purchase contract for 1 Erebus Circuit, Morphett Vale 5162 (‘the Morphett Vale Property’). Although this property was referred to as ‘Erebus Circuit’ by the parties, it will, for consistency with the reference to other properties by their suburban location, be referred to in this decision as the Morphett Vale Property. 15 The purchase price was $420,000. That amount was approximately equivalent to the value, at that time, of the Goolwa Property. 16 A deposit of $10,000 was paid by way of cheque to the vendors. 17 Bridging finance was required for the purchase of the Morphett Vale Property until the Henley Beach Property sold. The deceased and Inessa were signatories to the bridging loan. 18 After the Henley Beach Property was sold, funds from the sale were applied to the Morphett Vale Property, and to pay out the bridging finance. The loan was in place for about three months. 19 The deceased and Inessa owned the Morphett Vale Property outright and lived together in the property for just over two years. 20 Upon the deceased’s death in February 2021, Inessa became the sole registered proprietor of the Morphett Vale Property. 21 On 20 July 2024, Ms Lane sold the Morphett Vale Property for $770,500. The administrator’s doubt 22 As part of the administration of the estate, the administrator disclosed the following estate: 10 Riverdell Court Goolwa North $420,000.00 Furniture (Erebus Circuit) (estimated) $11,000.00 -- 5 of 27 -- [2025] SASC 209 Hughes J 4 Motor vehicles/Trailer $2,256.00 Bank SA Noarlunga $302,446.45 Bank SA Mile End $32,838.65 Commonwealth Bank $4.31 Interest in Deceased Estate held by Public Trustee of New Zealand $1,473.60 NET VALUE $796,479.85 23 By way of letter from Janson Lawyers, who was acting for Inessa at the time, the administrator was informed that there was disagreement between Inessa and Malcolm as to whether the Morphett Vale Property should be considered to be part of the deceased’s estate for the purposes of distribution. The administrator formed the view that some doubt arose as to whether the Morphett Vale Property had been gifted by the deceased to Inessa, and whether such a gift should be taken into account when the estate was distributed as between Inessa and Malcolm. 24 Against that background, on 19 August 2024, the administrator posed the following question to the Court: a. Whether, on the basis of the facts and circumstances disclosed in the Affidavit of Mark Jordan sworn on 14 August 2024 and filed in support of this Originating Application, the Administrator would be justified in administering the estate of the Deceased by taking the position that the transfer of the Property to the Deceased and Inessa Maria Lane (“Inessa”) as joint tenants being registered on 24 December 2018 (“the Transfer”) was a gift made by the Deceased to Inessa and that the value of such gift should be brought into hotchpot pursuant to section 72K of the [Administration and Probate] Act?; and b. In the event that this Honourable Court answers “no” to 1(a) above, whether, on the basis of the facts and circumstances disclosed in the Affidavit of Mark Jordan sworn on 14 August 2024 and filed in support of this Originating Application, the Administrator would be justified in: - (i) issuing, and should issue, proceedings against Inessa in the Supreme Court of South Australia seeking declaratory relief that Inessa holds the Property on a resulting trust for the Deceased’s estate; and (ii) exonerating or recouping or indemnifying himself from the estate of the Deceased for the costs and expenses incurred by him of and incidental to such action on the basis of an indemnity? 25 The administrator requested to have his costs of the application paid from the estate of the deceased on a solicitor-client basis and upon the footing of an indemnity. -- 6 of 27 -- [2025] SASC 209 Hughes J 5 Summary of the parties’ respective positions The applicant’s position 26 The applicant adopted a neutral position as to the effect of the outcome to the questions posed to the Court. However, in light of the unrepresented status of the respondents, the applicant took a more active role in the proceedings to assist the Court to navigate the legal principles and evidence. 27 In so doing, and after considering the evidence and applying the law to it, the applicant contended that the Court might properly reach the following propositions: a. That the Administration and Probate Act 1919 is the relevant legislation that should govern the administration of the deceased’s estate; b. Inessa did not contribute to the purchase of the Morphett Vale Property in any substantial way; c. The Morphett Vale Property was gifted to and/or settled upon her; d. The gift or settlement occurred within the five years preceding the deceased’s death; e. The Morphett Value Property should, in accordance with s 72K of the Administration and Probate Act 1919 , be treated as part of the estate for the purposes of distribution. Inessa’s position 28 Inessa advanced two arguments. Her primary position was that the Morphett Value Property was not gifted to her or settled upon her, and that she was simply the legal owner of that property, in accordance with the arrangements she reached with her father. She said that she and her father decided together to buy the Morphett Value Property and that at the point of purchase, she became an owner, firstly as a joint tenant and then, under the law of survivorship, as a sole registered proprietor. She contended that the Morphett Value property is not liable to be accounted for in the distribution of the estate and that the assets disclosed by the administrator are comprehensively listed and should be distributed equally between the respondents. 29 Inessa’s alternative argument was that she was not gifted the Morphett Vale Property, and it was not settled upon her, because she made various payments to her parents and bought certain items for her father prior to the purchase of the Morphett Value Property. These had the effect of her consideration towards the purchase of the Property, such that she became a legal owner by way of having purchased the Property. 30 Inessa further contended that if s 72K of the Administration and Probate Act 1919 applies to the Property and it is liable to be brought into hotchpot, then the -- 7 of 27 -- [2025] SASC 209 Hughes J 6 proviso in s 72K(c) applies because the purchase in joint names demonstrates that the deceased intended that he had an intention contrary to the Property being brought into hotchpot and intended instead that it be their joint property, and the sole property of whomever survived the other. Malcolm’s position 31 Malcolm’s primary position was that the Morphett Vale Property was gifted to Inessa or settled upon her. He adopted the submissions of the applicant in relation to the application of the law to the circumstances of the purchase. He considered that there was no consideration advanced by Inessa for the Morphett Vale Property. Malcolm also adduced evidence to establish that gifting the Property to her was their father’s intention, accompanied by an intention to gift, by Will, the Goolwa Property to him. 32 Malcolm’s alternative contention was that if the Property was not a gift or settled upon Inessa, then a resulting trust was created when the property was purchased, and Inessa held5 the Morphett Vale Property for the deceased’s estate. A preliminary issue - which Act applies? 33 In order to answer the questions posed to the Court, it is first necessary to determine whether the administration of the estate is governed by the Administration and Probate Act 1919 or the Succession Act 2023. The Acts are materially different in respect of the principles to be applied in respect of inter vivos gifts to beneficiaries, and in particular the doctrine of hotchpot. 34 The doctrine of hotchpot arises from the Statute of Distributions 1670 and operates as a presumption that an inter vivos gift to a person who is entitled to share in an intestate estate, is liable to be accounted for in the distribution of the estate. It is not necessary to examine the metes and bounds of the doctrine because it has been codified in the Administration and Probate Act 1919 since 1975.6 35 Section 72K of the Administration and Probate Act 1919 requires that gifts to those entitled to share the estate of an intestate deceased that were made in the five years prior to the death of the deceased, are liable to be accounted for in the distribution of the estate. It provides as follows: 72K—Gifts to be brought into hotchpot (1) Where— (a) an intestate has within the period of five years immediately before his death made any gift to, or settlement for the benefit of, a person (other than a spouse or domestic partner of the intestate) who is, or would if he were to survive the intestate become, entitled to a part of the intestate estate; or 5 It has since been sold. 6 Administration and Probate Act Amendment Act 1975 (No 2) (SA). -- 8 of 27 -- [2025] SASC 209 Hughes J 7 (b) a person who dies partially intestate leaves a will containing a gift in favour of a person (including a spouse or domestic partner of the intestate) who is entitled to part of the intestate estate, the property given or settled shall be taken to have been given or settled in or towards satisfaction of the share to which that person is entitled in the intestate estate, or to which he would become entitled if he were to survive the intestate (as the case may be) unless— (c) the contrary intention was expressed, or appears from the circumstances of the case; or (d) the value of the property given or settled does not exceed one thousand dollars. (2) For the purposes of subsection (1) of this section, the value of property given or settled by an intestate in his lifetime shall be determined as at the date of the gift or settlement. 36 On 1 January 2025, the Succession Act 2023 came into operation. That Act does not contain the same provisions regarding gifts and their treatment by an administrator. In adopting the recommendation of the South Australian Law Reform Institute’s recommendation to abolish the doctrine of hotchpot,7 the Government’s Bill, which was passed without amendment in this regard, contains no equivalent to s 72K. There can be no doubt that the intention of the Parliament was to abolish the application of the doctrine. The abolition achieved consistency with the position adopted in England and Wales, and some other States such as New South Wales.8 37 It is therefore firstly necessary to determine whether the Administration and Probate Act 1919, and in particular s 72K, applies or whether the Succession Act 2023 applies. The answer to this question is material to the distribution of this estate. 38 The Succession Act 2023 contains transitional provisions in Schedule 4 which provides that:9 Any proceedings commenced in the Court under a repealed Act that have not been finally determined before the designated day may be continued and completed under that Act as if this Act had not been enacted. The parties’ positions 39 The applicant provided assistance to the Court in respect of the statutory construction issue. Whilst it was not in doubt that the application for advice and direction was commenced, and not finalised, before the commencement of the Succession Act 2023, it was submitted that there may be an argument that an 7 South Australian Law Reform Institute, South Australian Rules of Intestacy (Report No 7, July 2017) 51. 8 As discussed by Bennet J in Estate of Tanner [2025] NSWSC 1078 [37]-[42]. 9 Succession Act 2023 sch 4, cl 2. -- 9 of 27 -- [2025] SASC 209 Hughes J 8 application for advice and directions was not intended to attract the operation of the transitional provision. 40 The Court’s function in providing advice or direction is contained in s 69 of the Administration and Probate Act 1919: 69—Public Trustee and other persons may obtain judicial advice or direction (1) The Public Trustee shall, and any trustee, executor, or administrator may, when in difficulty or doubt, apply to a Judge for advice or direction as to matters connected with the administration of any estate, or the construction of any will, deed, or document. (2) Such application may be made either without notice to or upon summons served upon any of the parties interested. (3) Any person interested in any estate, who is dissatisfied with the conduct of the Public Trustee in any matter connected with the management or administration thereof, may apply to a Judge by summons to be served upon the Public Trustee to review such conduct. (4) A Judge may, upon the hearing of an application under this section, make any order, declaratory or otherwise, that he sees fit as to the administration of the estate, or the construction of the will, deed, or document, which is the subject of the application, and also as to the costs of the application. (5) Any such order made in the absence of an interested party shall have the same effect, or be of the same force or validity, so far as regards protection to the Public Trustee, or other trustee, or the executor, or administrator, as if the same had been a decree or order made in an action where all parties concerned were represented. (6) The Judge may refer any question of law arising on an application under this section for the opinion of the Supreme Court, or may direct an issue to be tried by, or an action to be instituted in, the Supreme Court. 41 The applicant submitted that an application made under s 69 of the Administration and Probate Act 1919 does not seek to invoke the Court’s power to issue a binding determination, but rather engages the Court’s advisory jurisdiction.10 It was submitted that the question of whether the transitional provision embraces the exercise of the advisory jurisdiction is less clear than the jurisdiction which will clearly fall within all corners of the provision, namely an inter partes dispute. 42 The applicant made the further point that if the Court found that the transitional provisions did not extend to this non-binding application for advice and direction, the effect of s 32(2) of the Legislation Interpretation Act 2021, namely sub-sections (d), (e) and (f), would nevertheless maintain the operation of 10 Hall v Carney (No 3) (2021) 139 SASR 63 [44] (Doyle, Livesey and Bleby JJA), cited with approval by Livesey P in Burke v Public Trustee [2022] SASCA 64 [135]. -- 10 of 27 -- [2025] SASC 209 Hughes J 9 the repealed Administration and Probate Act 1919 for the determination of the application. Those provisions provide:11 32—Effect of repeal, amendment or expiry (1) This section applies if an Act or a legislative instrument, or a provision of an Act or a legislative instrument— (a) is repealed or amended; or (b) expires. (2) The repeal, amendment or expiry of the Act, legislative instrument or provision does not— (a) … (b) … (c) … (d) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, under the Act, instrument or provision; or (e) affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, under the Act, instrument or provision; or (f) affect any investigation, legal proceeding or remedy in respect of anything mentioned in paragraph (d) or (e). … 43 The applicant submitted that conferral on the administrator by s 72K of various powers, duties and rights engaged the operation of sub-ss 32(d), (e) and (f) with the effect that the application of the Administration and Probate Act 1919 would be preserved for the administration of this estate. 44 The applicant, while primarily submitting that the Administration and Probate Act 1919 would appear to apply to the current proceedings either by virtue of the transitional provisions or the operation of the Legislation Interpretation Act 1921, posited that, in the further alternative, the Statute of Distributions 1670 might be found to continue to have sufficient operation on intestate estates not caught by s 72K to preserve for them the application of the doctrine of hotchpot. 45 In making this point, the applicant observed that the Statute has never been formally repealed in South Australia. Counsel for the applicant noted that the effect of this may be that the doctrine might operate, and if so, it would do so without the 11 Legislation Interpretation Act 2021 s 32. -- 11 of 27 -- [2025] SASC 209 Hughes J 10 five-year limit that is imposed by s 72K of the Administration and Probate Act 1919. 46 Inessa’s primary submission as to the applicable law was that the significance diminished in these proceedings because there was no inter vivos gift to be accounted for. Her position more generally was that the Administration and Probate Act 1919 applied to these proceedings. 47 Malcolm adopted the applicant’s submissions on this issue. Consideration as to which legislation applies 48 The Court has previously determined that s 69 of the Administration and Probate Act 1919 should apply where an application for advice or direction was made prior to commencement of the Succession Act 2023.12 However, I do not understand the issue to have been examined in any detail. These proceedings afford that opportunity. Having done so, and for the following reasons, it is my conclusion that the transitional provisions of the Succession Act 2023 operate to direct the Court to determine these proceedings pursuant to the Administration and Probate Act 1919. 49 The nature of the Court’s activity when performing a function under s 69 of the Administration of Probate Act 1919 is quite different from that which it performs in the adjudication of a dispute between parties, or even the exercise of the supervisory jurisdiction of judicial review. The function performed under s 69, in this action, entails the provision of advice to the administrator. That advice need not be acted upon, but if it is followed, the administrator will be protected from any liability arising from any action taken in accordance with the advice.13 50 Irrespective of the distinction between the various activities of the Court, the issue is whether those activities are carried on under the auspices of “proceedings”. It is “proceedings” to which the transitional provisions within clause 2 of schedule 4 of the Administration and Probate Act 1919 attach. A schedule to legislation is part of the Act,14 and is therefore subject to the same rules of statutory construction. 51 The advisory activity undertaken by the Court when powers under s 69 of the Administration and Probate Act 1919 are exercised entails quite different processes and powers than those which operate in the quelling of disputes between parties, or even the exercise of the supervisory jurisdiction of judicial review. 15 52 However, it is not the nature of the function that informs the answer to whether the transitional provisions apply to s 69. It is the text of the transitional provisions themselves, and the text of the legislation on which those provisions 12 Pepper v McBride [2025] SASC 103 [7]; Re Morgan (as executor of the estate of McLeish) [2025] SASC 79 [11]. See also: Earl v Walkhom [2025] SASC 71;Dahm v Dahm [2025] SASC 70. 13 Burke v Public Trustee (n 10) [139] (Livesey P). 14 Legislation Interpretation Act 1921 s 19. 15 Burke v Public Trustee (n 10) [139] (Livesey P). -- 12 of 27 -- [2025] SASC 209 Hughes J 11 operate. It is evident from the use of the term “proceedings” in the transitional provisions, in the Administration and Probate Act 1919, the rest of the Succession Act 2023, and the Uniform Civil Rules 2020 (the Rules), that the term “proceedings” captures both the adjudicative and advisory functions performed by the Court. 53 In support of the above, noting that headings form part of the legislation for the purposes of statutory construction,16 the Administration and Probate Act 1919 also uses the descriptor “proceedings” in relation to an application for probate:17 16—Proceedings for probate on death of testator where will has been deposited (1) On the death of a testator, whose will is at the time of his death deposited with the Registrar, any executor of the will may in person apply for probate of such will. (2) The Registrar shall thereupon supply the executor so applying with a printed form of declaration in the prescribed form, and upon the executor making such declaration the Registrar, if he thinks the case a proper one for the exercise of the power by this section given to him, may, on payment of all duties due, grant probate to the executor. (3) Such probate shall be made out by the Registrar, or a clerk in his office, and the Registrar shall make the prescribed charges for the form of declaration and for making out the probate. 54 There is no textual indicator in the Administration and Probate Act 1919 to suggest that what occurs when an application for advice and direction is made is not a “proceeding”. The Administration and Probate Act 1919 also makes provision for the practice of the Court and relevantly provides:18 21—Practice of the Court The practice of the Court in its testamentary causes jurisdiction shall, except where otherwise provided by the rules, be according to the practice of the Supreme Court immediately before the coming into operation of this Act. 55 In the Uniform Civil Rules 2020, “proceeding” is defined as follows:19 proceeding means a proceeding other than an excluded proceeding, and includes— (a) a cross claim as well as a claim; (b) an originating application; (c) an online application, a caveat, renunciation or citation governed by Chapter 25; 16 Legislation Interpretation Act 1921 s 19. 17 Administration and Probate Act 1919 s 16. 18 Administration and Probate Act 1919 s 21. 19 Uniform Civil Rules 2020 r 2.1. -- 13 of 27 -- [2025] SASC 209 Hughes J 12 (d) a proceeding seeking review of an administrative decision notwithstanding that it may be called an “appeal” by a statute; and (e) where the context requires—an appellate proceeding; 56 “Excluded proceeding[s]” are carved out of the definition, and are defined as follows:20 excluded proceeding means— (a) a criminal proceeding being a proceeding against a person for an offence including (without limitation) a committal proceeding, a proceeding in relation to bail and a proceeding in relation to sentence; (b) a proceeding under the Intervention Orders (Prevention of Abuse) Act 2009; or (c) a proceeding governed by the criminal rules of the Supreme Court, District Court, Magistrates Court or Youth Court; 57 An application for advice or direction is made by way of originating application and is not excluded.21 It is a “proceeding” for the purposes of the Rules. 58 Further, the Rules deal separately with “probate and administration actions” in chapter 20, being contentious civil matters, and “probate matters” in chapter 25, but both chapters use the word “proceeding”. Despite the fact that an application for advice or direction emerges from the Court’s administration of probate, there is nothing to support the view that when the administrator brings an application for advice and direction, what follows is not a “proceeding” even though it has no adversarial element and calls upon the Court to exercise powers that are not adjudicative of a dispute. 59 Accordingly, the preferable construction of the transitional provision is that it is intended to, and does in fact, capture applications for advice and direction that are underway at the relevant day. 60 Finally, there is no evident policy basis upon which the Parliament may have sought to provide a different transitional regime with respect to applications for advice and direction. 61 Clause 2 of schedule 4 of the Succession Act 2023 is properly construed so as to capture applications for advice and direction. Therefore, neither the Legislation Interpretation Act 2021 nor the Statute of Distributions 1670 requires further consideration. 20 Ibid. 21 Ibid. -- 14 of 27 -- [2025] SASC 209 Hughes J 13 Did Inessa give consideration for the purchase of the Morphett Vale Property? The applicant’s position 62 The applicant’s approach to the question of whether the Morphett Vale Property was received by Inessa by way of a gift from the deceased was to assess the circumstances about the transfer of the Property from the vendor to the deceased and Inessa, and the respective contributions that the deceased and Inessa had made to the purchase of the property. The applicant pointed to the evidence that the house was purchased, aside from the deposit, from the funds derived from the sale of the Henley Beach Property, which was (at the time of sale) solely owned by the deceased. The applicant submitted that the evidence of any contribution by Inessa to the Henley Beach Property was limited to uncorroborated evidence of assertions of payments of board by Inessa to her parents. It was further contended that the evidence of Inessa’s contribution to the deposit was equivocal, and even if proven, the deposit was insufficient to establish an entitlement to a joint share in the Morphett Vale Property. The applicant did not consider that the fact that Inessa was a party to the bridging finance loan was relevant to her ownership of the Morphett Vale Property. 63 The applicant referred the Court to Re Mills,22 in support of the contention that the joint nature of the interest in the property was not incompatible with it being a gift. In that case, the Court was required to decide whether trusts established by the deceased for four of his daughters should be considered to reduce, to the extent of the amounts placed on trust for each of them, their respective share of the residue such that other siblings not made beneficiaries would share in a larger residue. The Court found that the moneys paid by the deceased into the trust accounts were “gifts … in the form of a settlement”.23 They were neither “cash bounties for [the daughters’] personal use” (noting that the daughters were unaware of the trusts having been established) nor were they sufficient in value to amount to “provisions”,24 i.e. an advancement by way of portion to establish the child in life.25 Rather, they were gifts that were given by settling a benefit on each child through a trustee. Inessa’s position 64 Inessa’s primary position was that the Court was not required to examine the circumstances of the transfer of the Morphett Value property from the vendor to her and the deceased, because the transaction and its legal effect provided a complete answer to the issue of ownership of the Morphett Vale Property. The conveyance was for consideration, to Inessa and the deceased jointly. She 22 [1952] SASR 274 (Ligertwood J). 23 Ibid 278. 24 Ibid. 25 Ibid 277 quoting Jessel MR in Taylor v Taylor (1875) LR 30 Eq 155 at 157-158. -- 15 of 27 -- [2025] SASC 209 Hughes J 14 contended that there was no evidence of any gifting event as between the deceased and Inessa. 65 Inessa relied upon the fact that she did not receive the property in such a way that she could dispose of it. Rather, she described it as receiving the “obligations of co-owner” and the rights of survivorship, which may or may not have materialised depending on which of the joint tenants survived the other. 66 Further, Inessa became the sole registered proprietor of the Morphett Vale Property upon the deceased’s death by operation of law, and not by gift. 67 Inessa’s alternative position was that insofar as the sources of the consideration for the Property were relevant, she did contribute to the purchase of the Morphett Vale Property. She pointed to various sources of her contribution. 68 Inessa resided with her parents in the main residence at the Henley Beach Property from January 2002 to January 2004 and paid $100 per fortnight in board. From June 2005 until her mother died in September 2008, and thereafter until December 2018, she lived in the ‘granny flat’ of that property and paid $175 per fortnight in board.26 Inessa firstly submitted that her payments of board to her parents when she lived at the Henley Beach Property could be characterised as creating an equitable unregistered interest in that property, such that the application of the proceeds of sale of that property to the Morphett Vale Property constituted her consideration. 69 Secondly, Inessa submitted that she made in-kind contributions to the maintenance of the Henley Beach Property and gave support to the deceased after her mother died. 70 Thirdly, Inessa submitted that she made various financial contributions to the deceased by way of buying a laptop for him and by transferring the ownership of her car to him. She contended that this amounted to an indirect contribution to the deposit paid for the purchase of the Morphett Vale Property. She said:27 My $5,000 contribution for the deposit came from the following: a) the 16 or so years I paid regular minimal board at the Henley home; b) the purchase for my father of a MAC computer at around 31st August 2016 and c) the transfer of ownership to my father of my car (white Nissan micra) around 22nd December 2017. 71 Fourthly, Inessa contended that her liability for the bridging loan and the fact that the lending institution recognised her as a purchaser of the Morphett Vale Property, indicated that she was its owner and not a gift recipient. 26 Affidavit of Inessa Maria Lane dated 4 June 2025 [8], [17]-[18]. 27 Ibid [46]. -- 16 of 27 -- [2025] SASC 209 Hughes J 15 Malcolm’s position 72 Malcolm asserted that Inessa did not contribute financially in any material way to the Morphett Vale Property, and that it should be considered to have been a gift to her by their father that should be brought to account under the principles of hotchpot. 73 He relied upon his affidavit,28 which gave an account of the deceased viewing Inessa as financially dependent on him, and which annexed various emails between the deceased and the deceased’s sister that set out the deceased’s descriptions of the relevant events along with his views about the relevant circumstances. 74 Malcolm adopted the applicant’s submissions as to the law in relation to gifts and settlement. Was the deceased’s intention relevant? 75 The applicant’s position was that the deceased’s intention was not strictly relevant in the circumstances of an intestate estate and that in any event the correspondence between the deceased and his sister could only be given limited weight because of its hearsay nature. However, counsel for the applicant acknowledged that if s 72K applied, then the deceased’s intention may be relevant to determining whether there was a basis not to bring the Morphett Vale Property into hotchpot in reliance on the proviso in s 72K by which the rule does not apply if a contrary intention is shown. 76 Inessa submitted that it was the deceased’s intention that the children be put into similar financial circumstances which had been achieved by the purchase by the deceased and her together of the Morphett Vale property, which eventually became Inessa’s property. This meant that she was in a similar situation to her brother, who owned a property, and that the deceased intended that the Goolwa Property be shared between them. 77 Malcolm contended that it was his father’s intention to gift the Goolwa Property to him, and to allow Inessa to remain in the Morphett Vale Property, ensuring that the children shared equally in the deceased’s real property. Malcolm accepted that the deceased did not make those arrangements prior to his death. Consideration - Was the Morphett Vale Property a ‘gift to, or settlement for the benefit of’ Inessa, for the purposes of s 72K of the Administration and Probate Act 1919? 78 The term “gift” is not defined in the Administration and Probate Act 1919. 79 In Mozley and Whitely’s Law Dictionary,29 the term is defined as follows: 28 Affidavit of Malcolm Karl Lane dated 17 December 2024. 29 11th Edition, Butterworths, 1993. -- 17 of 27 -- [2025] SASC 209 Hughes J 16 A conveyance which passes either land or goods. As to things immoveable, it was said to be applicable to lands and tenements given in tail. This limitation of the word is, however, quite obsolete. Blackstone distinguishes a “gift” from a “grant” in that a gift is always gratuitous, without binding consideration, and therefore void in certain circumstances, whereas a grant is made on some consideration or equivalent. 80 In other contexts in which a gift has been the subject of judicial consideration, the common feature is that there is a disposition of property, and it occurs without consideration.30 For the purposes of s 72K of the Administration and Probate Act 1919, those two characteristics should be understood to be necessary to the meaning of the term. Inessa did not give consideration 81 For the following reasons, I find that Inessa did not establish that she gave consideration for her interest in the Morphett Vale Property. She advanced two bases upon which it might be found that she contributed to the purchase funds of the Morphett Vale property. 82 Inessa’s first ground was that she had an equitable interest in the Henley Beach property such that the application of the sale proceeds from that property were in fact partly her monies. The evidence was primarily her own affidavit and evidence from the bar table given in the course of submissions. I find however, that Inessa’s payment of board, as she described it, could not amount to the creation of a property interest in the Henley Beach Property. Board is payment for the right of occupation and any other agreed terms, and not creative of rights of ownership. 83 Inessa’s evidence was that she purchased a laptop for her father and assigned her interest in a car to him. These acts were not corroborated by documentary or other evidence. Inessa’s evidence that she made a contribution to the deposit did not establish, if such contribution had in fact occurred, that it would constitute consideration for her interest. It was not suggested that the acts were performed as part of any agreement to confer on her any interest in any real property. However, accepting their truth on the basis of their assertion, the value of these items demonstrates at most that Inessa made an in-kind contribution to the deceased, equivalent to a portion of the deposit. Such an amount could not, and did not, constitute consideration for a joint interest in a property for which the purchase price was $420,000. 84 Secondly, Inessa did not establish that the fact that she was a joint borrower for the bridging finance gave her any legal interest in the Morphett Vale Property. Nothing about her role as a party to that loan agreement established that she had made, or would make, a contribution to the purchase funds for the Morphett Vale Property. The fact that the lender viewed her (correctly) as a joint owner of the property does not illuminate the way in which she came to hold that interest in the property. It simply reflects the commercial reality that, as a joint owner, the lender 30 Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336, 434. -- 18 of 27 -- [2025] SASC 209 Hughes J 17 required her agreement as to how the property would be dealt with if the funds would not be repaid. 85 In relation to the law of survivorship, Inessa did not establish that the fact that she took a joint, rather than full, interest in the Morphett Vale Property was relevant to its status as a gift. 86 Inessa relied on Pelham v Pelham,31 in which Mayo J observed that:32 There is but a single freehold … Each joint tenant has an identical interest in the whole land and every part of it. Neither of them holds any part to the exclusion of the other. However, those statements are not incompatible with a joint tenant gaining their interest by way of a gift. The fact that Inessa may have pre-deceased her father, such that her interest would have reverted to him (and not, for example, to her estate) is not inconsistent with her having a proprietary interest for the period that they were both alive. Similarly, the fact that the deceased died before Inessa, such that her interest in the Property took on a different character, does not bear upon whether it was a gift or not at the time she was first registered on the title. Upon becoming a registered joint owner, Inessa gained something of value, namely a joint interest. As she did not advance any consideration, the proper inference is that it was given to her by the person who advanced consideration (the deceased), and/or settled upon her. 87 The cases she relied upon - Murray v Hall33 and Glavinas v Pasvouris34 - do not bear on the issue that this Court must decide, which is whether Inessa took her interest by way of a gift or by some other way. I reject Inessa’s argument that the fact that she took a joint interest in the property was evidence against there having been a gift. The question is not what she took, but what she gave in return for the interest she gained. 88 Further, the reasoning in Re Mills,35 demonstrates that it is irrelevant that Inessa did not view the conveyance as a gift. In that case, none of the daughters whom the trusts accounts had been made in favour of knew that the trusts had been established for their benefit and yet the character of the investments into the trust were characterised as gifts. 89 Inessa’s emphasis upon the fact that she became owner of the whole of the interest in the Morphett Vale Property by operation of the doctrine of survivorship as being evidence against the proposition that the Property was gifted to her is misplaced. 31 [1955] SASR 53. 32 Ibid 57. 33 (1849) 7 CB 441. 34 [2023] SASC 165. 35 Re Mills (n 22). -- 19 of 27 -- [2025] SASC 209 Hughes J 18 90 I find, therefore, that Inessa assumed an interest in the Morphett Vale Property, being a joint interest, when she became a registered proprietor, and that this occurred by way of a gift from the deceased who advanced the consideration for the Property and allowed Inessa to take the joint interest. That gift of a joint interest evolved into an interest in the whole of the Property when the deceased died, by virtue of the law of survivorship. What does it mean for property to be settled upon another for their benefit? 91 The applicant submitted it was also appropriate to characterise the events as a settlement for Inessa’s benefit. In other words, the applicant’s position was that the features of “gift” and “settlement” in this context are overlapping, and that in the present case, the features are met for both characterisations. 92 The term “settlement” is not defined in the legislation, but in related contexts such as succession duties, it refers to a transfer that is made to a trustee for a beneficiary to take in accordance with the terms of a trust. The key connecting element between gift and settlement that should be understood to apply in s 72K of the Administration and Probate Act 1919 is that each entails a transfer without consideration. A gift is a transfer that occurs in the present and a settlement is a transfer that confers a benefit on the recipient at some time in the future, often contingent on an event or action and through a third party such as a trustee. 93 On that basis, it can be seen that there was a gift to Inessa by way of a settlement upon her of a joint interest in the Morphett Vale Property, which enlarged upon the deceased’s death to a whole interest in that property. When should the gift or settlement be understood to have been conferred? 94 The gift or settlement should be understood to have occurred at the point at which Inessa was registered on the Morphett Vale Property title. This becomes relevant in due course to the question of the value of the gift for the purposes of accounting for it in the distribution of the deceased’s estate. A gift or settlement has conferred, but do any exceptions apply? 95 Section 72K(1)(c) and (d) of the Administration and Probate Act 1919 provide that the gift or settlement must be accounted for in the distribution of the residue of the deceased’s estate unless a “contrary intention was expressed, or appears from the circumstances of the case”, or the value does not exceed $1000. 96 Because the latter is inapplicable, the only question is whether the deceased expressed a contrary intention, or if the circumstances of the case indicate that accounting should not occur. 97 That is a matter that Inessa was required to establish on the balance of probabilities. Inessa did not adduce evidence on that issue herself, but sought to rely on the evidence adduced by Malcolm. -- 20 of 27 -- [2025] SASC 209 Hughes J 19 98 Malcolm adduced evidence which he contended supported the inference that it was indeed the deceased’s intention for Inessa to have the full benefit of the Morphett Vale Property, but not until he (the deceased) had himself taken the benefit of occupation for his life. Malcolm asserted that the deceased likely considered that to equalise the financial positions of his two children he was required to place Inessa in the equivalent position to Malcolm. He relied upon email correspondence between the deceased and his sister annexed to the affidavit of Kathleen Jennifer Lane affirmed 13 December 2024. 99 Inessa considered that the emails supported her contention that the deceased intended that that the real estate in his estate would be the Goolwa Property only. 100 The applicant observed that insofar as the Court considered the emails sufficiently reliable to admit, the Court should nevertheless proceed with caution as to the weight to be attributed to them given that the deceased was not available to be questioned on them, and that at best they represented an expression of views over a period of time to a particular person. Consideration – the emails 101 The emails span a five-year period and some 33 pages. The earliest of them, dated 16 May 2015, from the deceased’s sister Kathleen, observes that siblings can fall out with one another after a parent’s death and advises, “it would pay to make things as straightforward as possible for Mal and Ness.”36 102 The deceased replied:37 “… I want to die in my sleep at ninety-five, but I don’t want to go without making sure everything is perfectly clear for the kids, and the easiest way would be to down-size much earlier, pay them off equally (and hope they put it into a down-payment on a house) – and hope they don’t blow their share. But that would be up to them, what they do with it, although I’m tempted to put a caveat somehow on any property, that it can’t be sold in my lifetime. No, that might not work out too well, I might die violently at seventy five. In SA, you can buy little houses out in the country for $150,000, so that’s all I need really (plus a bit of pocket money), they can split the rest. … (Emphasis added) 103 On 26 May 2017, across two emails he commented on his children’s situations and wrote:38 “[Inessa is] still working flat out (voluntarily) trying to get into a Social Work position or back into Law. She’s learning a hell of a lot about how difficult life can be. … 36 Joint Tender Book p 113. 37 Ibid. 38 Ibid 115. -- 21 of 27 -- [2025] SASC 209 Hughes J 20 … Mally’s not in a better situation, desperately trying to get into a Thai Translation course, anything but Indigenous…. We’ll get through it, but I’ll probably have to sell this place in a few years, maybe less, to give them a bit of financial security.” (Emphasis added) 104 On 18 March 2018, aged 75,39 the deceased wrote to his sister in New Zealand:40 “Everything’s more or less okay over here… Nessa’s desperately looking for work but Mal is okay. … Yeah, I’ll have to sell in a couple of years, and probably shift to the outer suburbs. If I gave the Goolwa place to Mal, and bought Nessa something down south of equal value, I could live with her (say a four- bedroom place, two living areas) and get the pension in five years and have a bit left over.” 105 On 21 March 2018, the deceased wrote:41 “My money will run out in two or three years, maybe four if I use my credit cards, so I’ll have to sell. And that would free up something for Inessa and give her some sense of ownership and security, AND if I got a place for her with two living areas, then it would be win-win…. Prices might hold up in this area, so there would be a bit left over when I sell and buy Inessa something….Mally’s found a tenant for his place, so he’s relieved. Me too, I had to go down every week and water his plants…” (Emphasis added) 106 The deceased’s sister wrote, on 21 March 2018:42 “That’s really great that Mally has found a tenant – one less burden for you. Good idea about gifting him the other house so you can eventually access the pension. I’m sure you know but if you gift property/money you have to wait for 5 years before you can claim that you have divested yourself for that property/income. Well you do here. I’m sure they have something like that over there as well. So if you’re going to do it do it sooner rather than later… What about still getting some rent from the extra house (from a family trust or from Mally) – would that be possible? Everybody gives their kids the money too early, before they realise they need it…. You could live out the back where Nessa is and she could share the house with flatmates, or divide it in two ...” 107 The deceased replied:43 “Yeah, same here: five years. I spent all of my super in paying off the Goolwa place, so it’s only a bit of savings and this house. I’m sort of gambling that I can get enough from this house to buy Inessa something of equal value to the one I’m gifting Mal, and have enough left over to live on plus the pension after five years, for a decade or two. That 39 Died on 19 February 2021. 40 Joint Tender Book p 117. 41 Ibid p 118. 42 Ibid pp 118-119. 43 Ibid pp 119-120. -- 22 of 27 -- [2025] SASC 209 Hughes J 21 should take me to 100. Boy, 100, that will be fun…. So by buying a property down that way, hopefully not too far from the future freeway, I can ensure that Inessa has an asset which grows fairly healthily in price, in case she wants to sell in twenty years.” 108 The deceased emailed his sister on 24 March 2018:44 “… I don’t really want to complicate things by shared-ownership or title, just one place for Mal and another of equal value for Nessa. Ideally I can pay cheap rent in one of Nessa’s place, with its twin-living areas. Actually, there are a lot of alternative possibilities.” 109 On 25 March 2018, Kathy wrote a further email to her brother. In the hearing, the parties agreed that the term “twin complex” refers to the Henley Beach Property, because it had a detached granny flat at the rear:45 “Not saying you will be an eccentric hoarder, but you never know what the future holds. If you give away all your power to your kids, lovely as they are, they could get partners who don’t like you, or think you are a burden (very common), and then you are very very vulnerable. Especially Nessa, if she got a permanent live-in partner that person could own half the house in three years and get rid of the old man, you, into a nursing home, or kick you out after three years and live in what was yours with their new woman. You wouldn’t have a legal leg to stand on. I know that’s a long shot but you have to cover all eventualities and it is possible. Well meaning children also put their parents into care and sell off their homes everyday. In a way it is a conflict of interest, what your children want for themselves and what you need. Both our parents have been ripped off. The other option is that you could give Mally the Goolwa house and put the twin complex into a family trust, with both you and Nessa as trustees and beneficiaries. Then it’s one legal entity. You could pay rent to the trust if you want. That protects Inessa as well as she gets older and vulnerable. You don’t like trusts, do you? Why is that? They work very well for protecting your assets and your children. They’re not expensive to set up….” 110 The deceased replied on 26 March 2018:46 “For Mal, the Goolwa place might be worth $600,000 now. For Nessa, there are new three- bedroom houses on small blocks not too far from the city for under $400,000 – I was thinking of getting her one and putting down a mortgage of, say, $200,000, on another one that she could rent out and learn all about the housing market, and to force her to save and pay it off- I’d need to put a caveat on both titles that she couldn’t sell without my permission as long as I was alive. I don’t know enough about trusts to be comfortable with them. Joint ownership, either tenants-in-co9mmon or joint tenancy, also seem to have difficulties. I’d rather just buy separate properties outright for all three individuals concerned if possible, no impediments etc. Anyway, we’ll see.” 111 On 23 October 2018 he wrote:47 44 Ibid 119. 45 Ibid p 121. 46 Ibid p 122. 47 Ibid p 123. -- 23 of 27 -- [2025] SASC 209 Hughes J 22 “I’ve put the house up for auction, for November 10th. So it’s an incredibly stressful time at the moment, I’m trying to hold it all together. Sell, then buy another one, check out a lot of places, presumably a lot cheaper but fair new (10-30 years old), weigh up advantages and disadvantages of each place, etc, then move…” 112 Later that day, he emailed again:48 “I hope the real state people are okay, very young but we’ll see. We’ve looked at one place and got a building inspection of it: no go, old, maybe too much damp. Also I had to get the certificate of title changed, it still had Maria’s name on it. …” 113 In the evening of 23 October 2018, the deceased made a direct statement as to his intention at the time. He wrote to his sister:49 “I set a reserve price of $900, and I’ll try to go to-and-from with the auctioneer to kick it up … I [w]ant to gift the Goolwa place to Mally and bequeath any new place to Inessa, with the proviso that I’m either a joint tenant or a life tenant there. It’s all quite exciting in an exhausting sort of way. Long way to go yet.” (Emphasis added) 114 The next day he wrote:50 “the thing about an auction is that whoever makes the highest bid will have to go through with the deal or pay highly for it, losing the 10% deposit AND paying other costs, and all for nothing. So it’s most likely that once the auction is over, settlement will be in a month or less. Then I can go flat-out choosing another place, paying for it, settling those arrangements, getting the keys and moving in….” (Emphasis added) 115 The Henley Beach Property then sold in November 2018 for $827,500. Some of the emails from the deceased to his sister described the steps in selling the Henley Beach Property and settling the Morphett Vale Property as ones undertaken by more than one person. For example, when discussing settlement of the Morphett Vale Property, the deceased said “Then WE can settle with the sellers of the pretty house”,51 and in another email, “we can settle too”.52 He referred to the Henley Beach Property as “our place”.53 He told his sister regarding the Morphett Vale Property: “Yes, Inessa and I are joint tenants, so she has some security in case I kick the bucket.”54 48 Ibid p 124. 49 Ibid p 125. 50 Ibid p 126. 51 Ibid p 127. 52 Ibid. 53 Ibid p 128. 54 Ibid p 129. -- 24 of 27 -- [2025] SASC 209 Hughes J 23 116 However, there was no statement to the effect that Inessa was contributing to the purchase price. In fact, when making statements specifically regarding the purchase of the Morphett Vale Property, the deceased did not use the plural:55 “Yes, I expect that I will have to apply for an expiration of the mortgage, pay the debt back, pay the interest (maybe four thousand), and pay for the discharged of the mortgage as well (maybe $160). … Then, on settlement of the sale of this place, I’ll pay the RE agents their commission of 1%, another $8,275. I’ve already paid for the conveyancing on this place, plus a bin to take away a lot of unwanted stuff, plus $3,300 to the agents to publicise and promote the sale. So around $463,000 all up.” 117 On 8 November 2018 he told his sister:56 “I’ve got to get bridging finance to pay for the place that we’ve bought, because the settlement date for payment to us for this place is on January 14th – my fault, I thought that settlement was far earlier, and that we had to vacate by January 14th. Anyway, bridging finance will allow us to pay ASAP for the new place…” 118 Two days later, he wrote:57 “All sorts of little hurdles to jump – I saw a loans manager yesterday, to arrange bridging finance so that I can pay the vendor of the Morphett Vale property well before I get paid by the purchase of this property. The funds manager wants to see Inessa as well, since her name is on the purchase contract. I’m a bit worried that, because Inessa has basically no funds to cover any loan, I will have to come up with some other angle – maybe mortgage the Goolwa place for a couple of months.” (Emphasis added) 119 While in the process of moving into the Morphett Vale Property, and the packing was underway, the deceased returned to the topic of his plans for the Goolwa Property. On 19 December 2018 he said: 58 “I’ll sort out what to do with the southern coast property, once the dust settles. Probably gift it to Mally ASAP, and wait for the five years before I can get the pension. At 81. Wow. God, old age rushes up on you :( .” 120 Whilst a degree of caution must be applied when considering the weight that the email communications between the deceased and his sister can be given, when the deceased is not available to be questioned about them and about any changes of view he might have had between 2018 and his death in 2021, the emails have a consistency about them that provides some weight. It is evident that the communications do not lend any support to the proposition that Inessa contributed to the purchase price of the Morphett Vale Property. The communications do support Malcolm’s contention that the deceased intended to give the Goolwa 55 Ibid pp 135-6. 56 Ibid. 57 Ibid p 137. 58 Ibid p 142. -- 25 of 27 -- [2025] SASC 209 Hughes J 24 Property to him. The communications also support the conclusion that the deceased wanted to give each of his children a parcel of real property of about equivalent value. 121 Inessa contended that the deceased had assisted Malcolm financially with the purchase of his house at Port Noarlunga, but did not prove that and it was denied by Malcolm, who said that the extent of any contribution by the deceased was less than $5000. 122 When those conclusions are overlaid upon the terms of s 72K, they do not support a contrary intention on the part of the deceased to bringing Inessa’s gift into account. Indeed, the emails support the conclusion that the deceased intended that Inessa would, on his death, take a full interest in the Morphett Vale Property and that by that time, he would have gifted the Goolwa Property to Malcolm. 123 I do not find that these were his intentions but simply that Inessa has not established on the part of the deceased any intention that she would take a full interest in the Morphett Vale Property and a half share in the deceased’s estate. 124 I conclude that s 72K applies to the Morphett Vale Property. What is the value of the gift? 125 Section 72K(2) provides that value of the gift or statement is assessed at the date that it is given or made. Although the Morphett Vale Property was held as joint tenants, the gift or settlement occurred when Inessa became a registered title- holder. I accept the applicant’s submission that, “upon registration of the interest, the Deceased and Inessa had the same rights and interests in the Property. Inessa was gifted (or had settled upon her), these rights and interests. The death of the Deceased did not expand or secure Inessa’s rights; it extinguished the Deceased’s interests. Accordingly, the interest that is the subject of the gift was made upon registration.” 126 Consequently, the value of the gift for the purposes of s72K was $420,000. Answers to the questions posed 127 The questions posed and their answers are as follows: a. Whether, on the basis of the facts and circumstances disclosed in the Affidavit of Mark Jordan sworn on 14 August 2024 and filed in support of this Originating Application, the Administrator would be justified in administering the estate of the Deceased by taking the position that the transfer of the Property to the Deceased and Inessa Maria Lane (“Inessa”) as joint tenants being registered on 24 December 2018 (“the Transfer”) was a gift made by the Deceased to Inessa and that the value of such gift should be brought into hotchpot pursuant to section 72K of the [Administration and Probate] Act?; Answer: Yes -- 26 of 27 -- [2025] SASC 209 Hughes J 25 b. In the event that this Honourable Court answers “no” to 1(a) above, whether, on the basis of the facts and circumstances disclosed in the Affidavit of Mark Jordan sworn on 14 August 2024 and filed in support of this Originating Application, the Administrator would be justified in: - (i) issuing, and should issue, proceedings against Inessa in the Supreme Court of South Australia seeking declaratory relief that Inessa holds the Property on a resulting trust for the Deceased’s estate; and (ii) exonerating or recouping or indemnifying himself from the estate of the Deceased for the costs and expenses incurred by him of and incidental to such action on the basis of an indemnity? Answer: Not necessary to answer. 128 I shall hear the parties as to the making of final orders. -- 27 of 27 --