Recently, executors of a small deceased estate sought summary dismissal of a family provision application which appeared doomed to fail. The estate was small, and the competing claim of the sole beneficiary, who was the deceased’s widow, was strong. The executors were concerned that the costs of the litigation, which usually includes mediation, would so diminish the estate to make any outcome of little benefit to either the applicant or the beneficiary under the will.

Summary dismissal is where the court strikes out a court matter because it has no prospects of success. Basically, in this jurisdiction, you need to show that the proceedings have been brought with no prospects of success, or they have been brought for vexatious purposes or without reasonable grounds, or that they are an abuse of process.

In deciding against the summary dismissal application Judge Porter of the Queensland District Court said that such applications depend upon all the circumstances of the case. He also said that if it were demonstrated that the proceedings were “useless and futile” because by the time a trial was completed the estate would be so diminished as to make it plain that the applicant’s claim was in all the circumstances doomed to fail, it would be open to the court to dismiss the proceedings on a summary basis.

The application involved an estate that was very small, and the estimates of cost to the end of trial would have reduced the value of the estate if costs of the parties were paid from the estate but not completely. Taking in to account the applicant circumstances, Judge Porter found that the applicant had an arguable claim the provision, notwithstanding the strong competing claim of the deceased’s widow.

The practical orders made by His Honour were to direct that the matter be set down for trial just a few weeks after the summary dismissal application was heard. This is unusual because generally family provision applications include mediation, which is expensive, but at which disputes are often resolved. His Honour concluded his judgement by stating his view that it is appropriate that Parliament ought to address the operation of the law in small estates.

The judgment may be accessed here: