WEM 6.20 Wills Estates Monthly Australia June 2020 Charities Executors Laches Probate Provision

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WEM 6.20 Wills Estates Monthly June 2020

Table of contents

Three stroke charities allowed into scheme 3

Philanthropic gifts directed by purpose 5

Executrix empowered to sell asset 8

Purported trustees acted without valid appointment 10

Step daughter’s claim on “tiny” estate dismissed 12

Time extended but 67yo blind nephew ineligible 14

Crisp order for widow 19

Deed of Family Arrangement refused as family provision settlement 22

Financial dependency defeats assistive neighbour 24

Judicial advice over deed copy avails missing original 27

Executor advised to sue insurer on deceased’s house fire injury 29

Laches over 30 years defeats brother’s farm claim 31

Instructions note fails knowledge and approval 34

Niece, nephew fail to dispel suspicious circumstances 37

Diabetes charity wrong address voids gift in $27m estate 39

WEM Cumulative File Index 42

Index to case, statutes references 43

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Administration, three stroke charities in cy-près scheme

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Three stroke charities allowed into scheme Re Graham (deceased) (No 2) [2020] QSC 168. Bowskill J. 11.6.20. After her Honour refused an earlier application - [2020] QSC 27 - here granted relief in respect of the charitable will gift of value more than $800,000. “There is now before me an application pursuant to s 105(1)(a)(ii) of the Trusts Act 1973 (Qld) for orders permitting the gift in clause 4.3(2) of the will to “be applied cy pres and distributed to those organisations having purposes as nearly as possible the same as the Stroke Association of Queensland Inc (SAQ) as determined by the Court”,” Bowskill J said [4]. “The organisations who contend they are the appropriate recipients of the gift, either in whole or part, are Synapse, the National Stroke Foundation Ltd (NSF) and the Stroke Recovery Trial Fund Ltd (SRTF). The Attorney-General for the State of Queensland also appeared and made submissions in relation to the application, for the assistance of the Court,” [6], noting ss 7 and 8 of the Attorney-General Act 1999 and s 106 of the Trusts Act 1973. “Under s 105(1)(a)(ii) of the Trusts Act 1973, one of the circumstances in which the original purpose of a charitable trust can be altered to allow the property given to be applied cy pres is where the original purpose cannot be carried out. That subsection does not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy pres (s 105(2)),” [7]. “The main condition which must be satisfied in that regard (apart from the failure of the original purpose) is the need to give effect to the intention of the testator “as nearly as possible”: McCormack v Stevens [1978] 2 NSWLR 517 at 519,” her Honour said [8]. “A gift by will to a particular charitable institution is treated as a gift for the advancement of the charitable work or purpose of that institution: Re Tyrie deceased (No 1) [1972] VicRp 16; [1972] VR 168 at 177. Accordingly, the task in endeavouring to give effect to the testator’s intention as nearly as possible is to consider the work or purpose (or the objects) of the proposed beneficiary(ies) of the cy pres scheme,” [9]. Cited Public Trustee of Queensland v Rutledge & Ors [2010] QSC 379 at [20] per Philippides J, therein reliance on Hutley J in Phillips v Roberts [1975] 2 NSWLR 207 at 211-3 as follows: [Hutley J] “The fundamental responsibility of a court administering charitable trusts is to give effect to the trusts as laid down by the testator or settler ... The Court does not generally consider whether those directions are wise or whether a more generally beneficial application of the testator’s property might not be found ... (It) is not wrong ... to give priority in choosing between schemes to that which is closest to the intention of the testatrix, even though it may be less beneficial to the community at large than another scheme”. Bowskill J: “Since the SAQ existed at the time of the testator’s death, but ceased to exist before the gift was paid, the gift did not fail and has taken effect for a charitable object. It may be applied cy pres, irrespective of whether the will otherwise discloses a general charitable intention: Hicks v Mater Misericordiae Ltd [2017] QSC 38; (2017) 16 ASTLR 441 at [28] and [29],” [11]. Her Honour surveyed evidence to the purposes of the contender charities. Later, “The fundamental responsibility of the court is to endeavour to give effect to the testator’s intention; to apply the fund to a scheme which is closest to the intention of the testator,” Bowskill J said [38].

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Administration, three stroke charities in cy-près scheme

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“In the end, I have found the approach of Kearney J in McCormack v Stevens [1978] 2 NSWLR 517 at 519 to be a useful one in this case. I am not persuaded that applying the gift solely to Synapse would fulfil the testator’s intention as nearly as possible; but nor am I persuaded that applying the gift solely to the NSF would do so. It does not seem to me that either of these charitable bodies can assert that they more closely correspond with the testator’s intention to the exclusion of the other, particularly when each of them have continued to carry out aspects of the work previously carried out by SAQ; but each of them have, albeit in differing ways, broader purposes. On the other hand, given the very specific focus of the STRF, I do not consider that the work and purpose of the STRF is sufficiently similar to that of the SAQ for it to be the successful contender to any substantial extent (although given the broader description of its purposes in its constitution, it is not unreasonable to include STRF in a scheme to a small extent),” [39]. Ordered 45% to Synapse, 45% NSF, 10% STRF {40]. “As to costs, I am inclined to the view that the appropriate orders in this regard are that the applicant recover her costs from the estate on the indemnity basis; but that each of Synapse, the NSF and the STRF recover their costs from the proportion of the gift which is paid to them. The Attorney-General has indicated she does not seek any order for her costs. However, I will give the parties the opportunity to be heard about this also,” her Honour said [41]. A (executor): G Dickson ins Thynne & Macartney. AG: Crown Law, A Lossberg. (Charities) Synapse: L Nevison ins Bennett & Philp Lawyers. NSF: A Rae ins Arnold Bloch Leibler. SRTF: S Macdonald ins Macdonald Law.

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Charity, purpose dictates succession

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Philanthropic gifts directed by purpose Re Estate of Henry Brough Smith; Perpetual Trustee Company Ltd v Uniting (Victoria and Tasmania) Ltd & Ors [2020] VSC 378. Cameron J. 30.6.20. The late Mr Smith was a leading wool exporter and Victorian philanthropist whose 1966 will established the Henry Brough Smith Charitable Trust, of current capital value about $20m, for income distribution to various charities, such including Tally Ho Boys Village, The Hospice for Elderly Men, The Home for Elderly Ladies at Wesley House, and others. “The Perpetual Trustee Company Limited (the ‘Trustee’) seeks judicial direction as to whether the five defendant charitable organisations are entitled to take the benefit of income from the Trust, as continuation of or successors to the institutions originally named as beneficiaries in the trust instrument,” Cameron J said [2]. The Trustee moved by Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 54.02 [Relief without general administration]. The Attorney-General was notified but did not appear. “By 2015, the remaining institutions (hereafter the ‘Named Institutions’) had each ceased to exist in the form that existed as at the date of the Will. The Defendant charities purport to continue the work of the Named Institutions. The Trustee sought advice from counsel in 2015 which cast doubt on the proposition that each of the Defendants was a continuation or successor to one or more of the Named Institutions. In 2016, the Trustee received further advice which suggested that the Defendants were entitled to receive distributions of income pursuant to the Will. In view of that conflicting advice, the Trustee made the present application to the Court,” her Honour said [12]. At [21] “Trusts for charitable purposes fill a unique niche within the law of trusts. In contrast to private trusts, which exist for the benefit specific named objects, a charitable trust is a trust for a specified purpose or purposes: Stratton v Simpson [1970] HCA 45; (1970) 125 CLR 138, 144 (Windeyer J). Such trusts are commonly referred to as ‘purpose trusts’. Unlike private trusts, a charitable or purpose trust does not depend upon certainty of object in order to be validly constituted, provided that there is a clear indication of a general purpose of charity. As was explained by Windeyer J of the High Court of Australia in Stratton v Simpson: [Windeyer J] “Every charitable trust is a trust for a purpose or purposes that are charitable, not a trust for a person or persons, although persons benefit from the fulfilment of the purpose. A body or organization which holds property upon a charitable trust and carries out the trust purposes is commonly called a charitable institution or a charity. It is really but the instrument for carrying a purpose into effect. Confusion can occur from want of remembering this”. Cameron J: “Like all trusts, a charitable trust also requires certainty of intention to create a trust and certainty of subject matter of the trust in order to be validly constituted. These matters are not in dispute in this application, as they are clearly set out the in the terms of the Will,” [22]. “The parties proceeded upon the basis that the trust established by the Will was a charitable trust, which existed to benefit the charitable purposes associated with each named institution. That is consistent with the well accepted proposition that a gift to a named charitable institution will be construed prima facie as a gift for the purposes of that institution: Re Vernon’s Will Trusts; Lloyd’s Bank Ltd v Group 20 Hospital Management Committee [1972] Ch 300. See also, Re Goodson [1971] VR 801,” in [23] before citing Kitto J in Sydney Homeopathic Hospital v Turner [1959] HCA 19; (1959) 102 CLR 188, 221–222, including:

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Charity, purpose dictates succession

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[Kitto J] “Accordingly a gift which would be invalid unless it operates to create a charitable trust may be upheld because, when the objects of the body which is the donee are taken into consideration, an inference arises that the gift is upon trust for charitable purposes (or for charitable purposes and others which are no more than ancillary)”. Cameron J [24]: “Although the English authorities expressly distinguish between gifts to incorporated and unincorporated associations in this regard, such distinction has been rejected in Australian courts. In Sir Moses Montefiore Jewish Home v Howell & Co (No 7) Pty Ltd [1984] 2 NSWLR 406 Kearney J of the Supreme Court of New South Wales reviewed the English authorities as well as the judgment of the High Court in Sydney Homeopathic Hospital and observed [including as follows]: [Kearney J] “In my view a disposition to a charitable corporation is to be treated as having presumptively the necessary elements creating a trust, so that the disposition of such a charitable corporation takes effect as a trust for the purposes of the corporation rather than as a gift to it to be applied as it sees fit”. Here the defendants were all unincorporated institutions. “It is well accepted that a charitable institution may continue to exist notwithstanding that the machinery through which that institution carries out its charitable purpose has changed,” Cameron J said in [26] before turning to England authorities including Re Faraker; Faraker v Derell [1912] 2 Ch 488, In re Lucas; Sheard v Mellor [1948] Ch 424, and further cited Kearney J in Sir Moses Montefiore Jewish Home, 416, such including: [Kearney J] “It is established since the decision of the Court of Appeal in Re Faraker [1912] 2 Ch 488 followed by the Court of Appeal decision in Re Lucas [1948] Ch 424 that continued existence of the funds in some transposed form, for example, through another institution altogether or through one into which the original body has been amalgamated enables a general charitable intention for the application of such funds to be fulfilled”. Thereafter her Honour exposed Australian judgments, including Public Trustee v Cerebral Palsy Association of Western Australia [2004] WASC 36; (2004) 28 WAR 496, (Barker J); Australian Executor Trustees v Ceduna District Health Services Inc [2006] SASC 286 (Vanstone J), but see Australian Executor Trustees v Attorney-General (SA) [2010] SASC 348, [65] where Kourakis CJ noted that in Ceduna, the parties had not advanced “as an issue that, even though the bequest in that case was, on its face, to the Village itself, it was in substance a gift for a charitable purpose, namely the provision of aged care services at the Ceduna retirement village which was still operating”; Estate of Forbes v NSW [2010] NSWSC 1439 (Hallen AsJ) where held [26] a donee “a continuation of, and the same legal entity as, the incorporated health service it replaced”; Re Coulson [2014] VSC 353 (McMillan J) [43] “… a charitable organisation may have conducted its charitable work continuously, yet made changes to its legal form depending on the vicissitudes of government regulatory policy or the benefits of incorporation in different jurisdictions”; Melba Support Services Inc v Bell [2014] VSC 425, [43]–[44]; and Re McHenry [2020] VSC 211. Cameron J [43] “In circumstances where a charitable institution has ceased to exist the prima facie position is that a gift to that institution has lapsed: GE Dal Pont, Law of Charity (LexisNexis Butterworths, 2nd ed, 2017) 360-361 [15.4]. However, there are certain exceptions to that proposition. The principles were neatly summarised by Newton J in Re Tyrie (No 1) [1972] VicRp 16; [1972] VR 168, 177-178”, and citing such. Thereafter Cameron J considered the evidence of the history of the named institutions and their successive and continuing operations as advanced by the defendants,

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Charity, purpose dictates succession

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ordering each defendant entitled to receive trust distributions “as successor institution”, costs payable by the Trust on a standard basis. P: Mr R R Boaden ins KCL Law. 1&2D (Uniting, Orana): Mr J McComish ins Stewart Peters Lawyer. 3D (Anglicare Victoria): Mr S P Newton ins Neylon Legal. 4D (Child and Family Care Network Inc): Mr B Barr ins HWL Ebsworth Lawyers. 5D (Children Australia Inc): Mr M McKenzie ins Cetrola Legal.

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Executor, no evidence of assent to hold asset as trustee

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Executrix empowered to sell asset Alexiou v Alexiou [2020] NSWSC 748. White J. 17.6.20. Where the plaintiff tutor of minor beneficiaries sought removal of the executrix qua trustee in order to prevent sale of realty by a company. White J: “As executrix of the deceased’s will, the defendant is entitled to sell the shares in Alexicon to pay debts and testamentary expenses. No-one suggests that a sale of the deceased’s shares in Alexicon, as distinct from a sale of Alexicon’s property, would be practicable or desirable. A sale of the shares would not be in the plaintiffs’ interests. But the defendant is entitled to be indemnified out of the plaintiffs’ share of the estate (that is, out of the shares in Alexicon) for 50 per cent of the debts the defendant incurs in administering the estate, including in defending the proceedings brought by Arthur Alexiou,” [30]. “The plaintiffs’ written submissions did not address the defendant’s entitlement as executrix to sell assets of the estate to meet testamentary expenses. As in the case of a trustee’s power of sale, an executor’s discretionary power to sell assets for the purposes of administration is to be exercised fairly and honestly for the purposes for which it is given and not to accomplish any other ulterior purpose for the executor’s benefit or otherwise. However, provided the power is exercised in good faith and not arbitrarily or capriciously or for an improper purpose or without real consideration as to the exercise of the discretion, it cannot be impugned on a general ground of alleged lack of reasonableness, fairness or wisdom (Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 at [7] citing Northrop J in Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd [1998] FCA 51; (1998) 79 FCR 469 quoted by Heerey J at 480). Had Alexicon’s unit been owned by the deceased, there would be no ground for interfering with the defendant’s exercise of her power of sale as executrix in administering the estate to raise moneys to meet testamentary expenses to be borne from the plaintiffs’ share of the estate,” [32]. “That is the purpose for which the defendant proposes to exercise her power as director of Alexicon. In so doing she is not breaching any fiduciary duty owed to the plaintiffs as beneficiaries under the deceased’s will either as director or executrix,” his Honour said [33]. “The defendant submitted that as the estate has not been administered, she is not yet trustee of the shares in Alexicon (Commissioner of Stamp Duties (Qld) v Livingston [1964] UKPC 2; (1964) 112 CLR 12; [1965] AC 694 at pp 18, 26-27; 708, 717). In Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45 the High Court held (at 312) that the principle in Livingston’s case (that prior to administration of a deceased estate there is no specific property capable of constituting the subject property of a trust in favour of the beneficiary) is applicable not only to assets within the residuary estate, but to assets the subject of a specific gift,” [34]. Later, in [38] “Whether the defendant has become trustee of the shares by virtue of assent or not, there is no impropriety in her exercising her power as director of Alexicon to sell Alexicon’s asset to meet administration expenses.” The plaintiffs had cited G E Dal Pont and K F Mackie, Law of Succession, 2013, LexisNexis Butterworths at 285-286 at [10.46]-[10.47]. Then White J: “In most of the cases cited the executors had paid all known debts and testamentary expenses and had completed the administration before they were taken to have assented to hold property on trust for the beneficiaries. But that is not so in all cases. In Porteous v Rinehart [1998] WASC 270; (1998) 19 WAR 495 White J held (at

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Executor, no evidence of assent to hold asset as trustee

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503-504) that notwithstanding that it was likely that testamentary and administration expenses and debts had not all been paid and the defendants remained executors, nonetheless, in relation to particular assets, being shares in a company left to the executors as trustee on certain trusts, the executors were also probably trustees (at 503-504). This conclusion may be difficult to reconcile with Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45 (at 312), but I accept that in principle it is at least arguable that notwithstanding administration is not complete, an executor might assent to holding a particular asset not as executor, but as trustee. This would be by analogy to Bell v Scott [1922] HCA 13; (1922) 30 CLR 387 at 393, 395, 398-9, where it was held that a devisee can call for a transfer of the property if prepared to furnish the executor with sufficient funds to meet debts and testamentary expenses,” [41]. “I accept that it is at least arguable that in principle an executor appointed as trustee for donees of gifts of specific property can assent to holding the position of trustee rather than executor in relation to that specific property, notwithstanding that administration is not complete. Undoubtedly, that could be so if the residuary estate were sufficient to pay all debts, funeral and testamentary expenses, so that the property the subject of specific gifts could be distributed, including by the executor’s assenting to the assumption of the office of trustee of such property,” White J said [42]. “That is not the present case. Nor is there evidence of such an assent,” [43]. Ultimately, “For the reasons I have given above for refusing to extend the injunction restraining the sale of Alexicon’s unit, it is not reasonably arguable that the defendant has yet become the trustee of Alexicon’s shares. Until administration is complete, or, arguably, unless and until she assents to holding the position of trustee of the shares, any claim for removal of the defendant as trustee of the shares is premature,” his Honour said [58]. Plaintiffs’ notice of motion and proceedings dismissed with costs. “Arthur Alexiou as the plaintiffs’ tutor will be personally liable for the costs of the proceedings. It is unnecessary to make an order directly against him. There is real doubt as to his ability to meet an order for costs of the proceedings. The appropriate order is for the plaintiffs to pay the defendant’s costs. To the extent those costs are not recoverable from the plaintiffs or their tutor, the defendant will be entitled, in due course, to recover those costs through the exercise of her rights as trustee of the plaintiffs’ shares,” White J said [60]. Orders. P: D Parish ins Gillis Delaney. D: N Condylis ins Walker and White.

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Executor, office by representation precluded by survival of an instituted executor

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Purported trustees acted without valid appointment Bloom v Waites [2020] VSC 367. McMillan J. 22.6.20. Mr Waites died in mid 1978, probate granted later that year, his will appointing the defendant an executor, and granting her life tenancy in two realty lots, with gifts over, and appointing a Mr Geoffrey Doolan as another executor. Mr Doolan died in 2004 and his son and executor, Mr David Doolan, thereafter purported to act as trustee of the Waites estate pursuant to Administration and Probate Act 1958 (Vic) s 17 [Executor of executor represents original testator]. “On 27 May 2015, a deed of retirement and appointment was executed whereby David Doolan purported to retire as trustee and Mr Bloom purported to be appointed trustee in his place. Mr Bloom submitted that the defendant confirmed the appointment by executing the deed,” McMillan J said [4]. “Mr Bloom seeks the removal of the defendant as trustee of the estate and for Mr Charles Rechnitzer to be appointed trustee in substitution for the defendant. Mr Rechnitzer is a partner of the law firm RB Legal Pty Ltd, as is Mr Bloom,” her Honour said [6]. “In fact, David Doolan did not become a trustee of the deceased’s estate, as the chain enabling a further appointment under s 17 of the APA only applies where an executor is the sole or last surviving proving executor of the estate. In this proceeding, the defendant is the sole surviving proving executor,” [7]. “As a result, the deed of appointment, which purported to substitute David Doolan with Mr Bloom as trustee, did not have its intended effect,” [8]. The plaintiff did not have standing. “Although not stated explicitly, it is assumed that Mr Bloom considers the remaindermen have standing to bring the application under the Settled Land Act 1958 (Vic). In circumstances where there are no trustees of the settlement, an interested person may make an application pursuant to s 36 of the SLA. However, as the defendant is a trustee of the settlement, pursuant to s 30(3) of the SLA, it is obligatory for her to make the application to appoint an additional trustee to act with her for the purposes of the SLA and for the provisions of the Trustee Act 1958 that relate to the appointment of new trustees and the vesting of trust property,” McMillan J said [13]. “As a final note, the substantive failings of Mr Bloom’s applications were coupled with numerous formal errors, including: • Despite r 5.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the

SCR’), neither the plaintiff nor defendant is stated to sue, or be sued, in their capacity as executor and trustee of the estate of the deceased;

• The heading of the proceeding states the proceeding is brought, inter alia, pursuant to Order 54 of the SCR, r 6.03 of the Supreme Court (Administration and Probate)

Rules 2014, and s 28 of the APA — no relief is sought pursuant to these provisions; • The documents cite obsolete versions of the rules; • No amended originating motion was provided alongside the draft summons and

affidavit; • The draft documents bear different and incorrect proceeding numbers,” her Honour

noted [14]. Later, “As the defendant has been the sole trustee of the estate since 22 August 2004, she may consider it appropriate to obtain orders pursuant to s 20 of the SLA in respect of the exercise of any of her powers as a tenant for life since that date. Further, she may also consider whether she has committed a breach of trust and, if so, seek to be excused for any breach, pursuant to s 67 of the Trustee Act 1958,” [17].

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Executor, office by representation precluded by survival of an instituted executor

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“Mr Bloom and Mr David Doolan should similarly consider their own positions and, particularly in regard to Mr Bloom, any personal liability arising from their conduct as purported trustees of the settled land,” her Honour said [18]. Stood over for further orders. P: Mr W Gillies ins RB Legal PL. D: Neesham White Gentle, Mr Misso.

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Family provision, “ruinous” claim dismissed

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Step daughter’s claim on “tiny” estate dismissed Cooper v Atkin [2020] NSWSC 828. Hallen J. 30.6.20. “These ruinous, and recriminatory, proceedings concern the estate of Terence Helgesen (the deceased) who died on 18 November 2018 and the claim, by Kristi Cooper, the step-child of the deceased, for a family provision order,” Hallen J said, in [1]. The estate was valued at $205,428 at death, $92,042 in March 2020. The plaintiff’s costs were ordinary $52,906, indemnity $81,394, the defendant’s $56,083. At [52] Hallen J: “Parties, however, should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Forsyth v Sinclair (No 2) [2010] VSCA 195; (2010) 28 VR 635 at 642 [27]; [2010] VSCA 195 at [27] (Neave and Redlich JJA, Habersberger AJA); Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); I have made this statement, many times, in the context of a claim for a family provision order, particularly in relation to estates with a small value: Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].” After considering the evidence and exposing incidents of law to family provision, there was no doubt the plaintiff eligible [221]. Then [225] his Honour: “On the topic of the relationship between an applicant and the deceased, Campbell JA (with whom Giles JA and Handley AJA agreed) noted, in Hampson v Hampson (2010) 5 ASTLR 116, at [80]; [2010] NSWCA 359, at [80]: [Campbell JA] “The requirement to have regard to the totality of the relationship can in many cases be satisfied by considering the overall quality of the relationship assessed in an overall and fairly broad-brush way, not minutely. Consideration of the detail of the relationship is ordinarily not called for except where there is an unusual factor that bears on the quality of the relationship, such as hostility, estrangement, conduct on the part of the applicant that is hurtful to the deceased or of which the deceased seriously disapproves, or conduct on the part of the applicant that is significantly beneficial to the deceased and significantly detrimental to the applicant, such as when a daughter gives up her prospects of a career to care for an aging parent. Neither entitlement to an award, nor its quantum, accrues good deed by good deed. Indeed, it is a worrying feature of many Family Provision Act cases that the evidence goes into minutiae that are bitterly fought over, often at a cost that the parties cannot afford, and are ultimately of little or no help to the judge”. Instantly, “I have described the nature of the relationship above and note that the deceased and Kristi were not close. Indeed, there was hardly any contact for many years prior to the deceased’s death and, on the occasions that there was (namely, after 2000), it was because of exigencies, such as Kristi needing a place to stay until she moved overseas, and following the death of Diane, when she returned for Diane’s funeral. Even prior to 2000, there was very little relationship between them either, Kristi only choosing to visit Port Macquarie when the deceased was working overseas. Their relationship was nothing like that of natural parent and child. All of the evidence suggests that it was superficial and tenuous,” Hallen J said [226]. “The Court is required to make, and I have made, an assessment of Kristi’s financial position, the size and nature of the deceased’s estate, the relationship between Kristi and the deceased, and the competing claim of the beneficiaries, two of whom are the deceased’s children, and the others who are grandchildren, who are the chosen objects of his bounty, and the circumstances and needs of both Kristi and each of the beneficiaries so far as they are known: see, for example, McCosker v McCosker [1957]

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Family provision, “ruinous” claim dismissed

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HCA 82; (1957) 97 CLR 566 at 571 – 572; [1957] HCA 82 (Dixon CJ; Williams J and Kitto JJ); Singer v Berghouse at 210 (Mason CJ, Deane J and McHugh J); Vigolo v Bostin at [16], [75], [112] (Callinan and Heydon JJ); and Tobin v Ezekiel [2012] NSWCA 285 at [70], Meagher JA (Basten JA and Campbell JA agreeing). I have also taken into account that the deceased made a previous Will, in 2012, in which Kristi was one of the substitute beneficiaries in the event of Diane having predeceased the deceased,” his Honour said [232]. “Having considered those matters, Kristi has not satisfied the Court that adequate provision for her proper maintenance, education or advancement in life has not been made by the Will of the deceased. Importantly, this is not a case where there was a close relationship, that is one which might be properly described as parent and child, or where she was brought up as a permanent member of the deceased’s family, or where she was ever a full-time member, as a child of the deceased’s family. The evidence does not suggest that she was supported by the deceased, to any significant extent, educationally, or emotionally. On reviewing, particularly, the medical, evidence, that she was the daughter of his wife, led the deceased to simply acquiesce to Kristi’s presence in their home, for those relevant periods,” [233]. “Even if I am wrong in that conclusion, I would not, as a matter of discretion, make an order for provision out of the deceased’s estate. In this regard, I have had regard to, amongst other things, the tiny value of the deceased's estate, the relationship between Kristi and the deceased, which, for many years prior to his death was virtually non-existent, as well as the relationship between the deceased, and his own children, each of whom has a significant legitimate claim upon the deceased's bounty. The deceased's grandchildren are the chosen objects of the deceased’s bounty and their claims, as such, cannot be disregarded,” Hallen J said [234]. “Furthermore, it is clear from what has been written that Kristi made no contribution to the deceased's welfare, or to his estate, financially or non-financially. I have referred to her assertion of a contribution, by reason of a family inheritance, that passed to Diane. Such contributions are not those made by Kristi. Because she has relied upon these contributions, I also take into account that Kristi received a capital sum, from Diane, during her lifetime, being part of the inheritance that Diane had received from her mother,” [235]. “Kristi, in her affidavit affirmed on 13 November 2018, describes the testamentary obligation of the deceased as “a responsibility to me because of a promise he made to my mother”. The nature of the alleged promise, or when it was made, is not identified. In any event, it was neither a promise made to Kristi, nor one upon which she acted,” Hallen J said [236]. “It follows that the proceedings should be dismissed and I so order. I shall allow the parties seven days to see if agreement to end this self-defeating litigation can be reached on the question of costs, failing which written submissions on costs can be made within ten days thereafter by the parties and the Court can consider, and determine, that issue on the papers,” [237]. P: L Clarke ins CKB Associates Lawyers. D: J Trebeck ins Priest Legal.

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Family provision, 67yo blind nephew ineligible

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Time extended but 67yo blind nephew ineligible Purnell v Tindale [2020] NSWSC 746. Henry J. 17.6.20. Henry J: “For the reasons that follow, I have granted Mr Purnell an extension of time. I have refused Mr Purnell’s application for provision for the reason that I am not satisfied that he was, at any time, wholly or partially dependent on the deceased or a member of the household of which she was a member, namely the Chelmsford Ave household, and thus he is not an eligible person under the Act,” [9]. Mr Purnell is 67yo, a nephew of the late Ms Agnes Broadfoot who died at age 98 in August 2016, her will appointing her living companion of 50 years, Mr Tindale, now 80, as executor and devising to him a half share and exclusive life tenancy in the $2.5m estate’s principal asset, a residence at Chelmsford Ave, Lindfield, a Sydney suburb, the other half in common to the plaintiff. Granted probate in November 2016, Mr Tindale administered the estate by August 2017, having given notice to the plaintiff in February. The estate opposed extending time, and any provision. The plaintiff had been married three times, was single, had four children, was living in subsidised housing at Balmain, receiving the age pension, and had been accepted into the NDIS. “Mr Purnell suffers from a range of health issues. He has chronic obstructive pulmonary disease, is legally blind and suffers from anxiety, depression, psychosis, agoraphobia and borderline personality disorder. He also has eczema, brain matter decay which has led to memory loss, high blood pressure, back and neck pains due to injuries to discs C1 and C2 on his spine and issues with his teeth which will require teeth implants,” Henry J said [79]. However the plaintiff had come to $1m inheritance from his mother, expected to be fully paid by the end of 2019. Mr Tindale’s circumstances were sound. The plaintiff’s ordinary costs were $79,280.64, indemnity $132,134.40, $74,234.40 paid, the defendant’s indemnity $88,000, ordinary $76,000, $16,080.72 paid. To extending time, [118]+, Henry J: “An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person unless the Court otherwise orders, on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time: s 58(2) of the Act. The principles to be applied on an application to extend time under s 58(2) of the Act were not in dispute at the hearing. The decision of the court whether to extend the time to bring an application is a discretionary one: Verzar v Verzar [2014] NSWCA 45 at [23]. “Mr Purnell must provide sufficient cause for bringing his claim late. The Court will look to factors such as whether Mr Tindale’s interests, as a beneficiary, would or might be affected by the making of an order to extend the time and prejudiced because of the delay; whether there has been conduct on the part of Mr Purnell or Mr Tindale which might justify the grant or refusal of the application to extend time; and the strength of Mr Purnell’s case: Verzar v Verzar [2014] NSWCA 45 at [24] and [25] (Meagher JA). “The relevant prejudice is that which is caused to Mr Tindale by the delay in the claim being brought, as distinct from any disappointment that might occur upon readjustment of the interests under the will in order to make provision: Cetojevic v Cetojevic [2006] NSWSC 431 at [58]; McCann v Ward [2010] VSC 452 at [11],” Henry J said [121].

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“The Court will also consider whether there has been any unconscionable conduct on the part of Mr Purnell, such as deliberately holding off making a claim in a way designed to lull Mr Tindale into a false sense of security so that he orders his affairs on the basis that his legacies could not be disturbed: De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep); Stone v Stone [2016] NSWSC 605 at [36]. “As justice is the paramount consideration in determining whether to extend the time for making an application, the strength of the case and whether the application as made has sufficient prospects of success to justify an extension is a relevant factor. In the absence of prejudice and where there is a strong claim, it may be an injustice to refuse to grant the extension: Butler v Morris [2012] NSWSC 748 at [117]; Verzar v Verzar [2014] NSWCA 45 at [33]; Valbe v Irlicht [2001] VSC 53 and [31]; Underwood v Gaudron [2018] NSWCA 269 at [89],” her Honour said [123]. Henry J noted the plaintiff had spoken advice from two solicitors whom he claimed had not warned him of the time limit. The defendant raised dilatoriness, prejudice and prospects. At [133] Henry J: “In my view, Mr Purnell has adequately explained the delay in making his application for provision. Prior to receiving Lander & Lander’s latter dated 16 February 2017, Mr Purnell had not seen a copy of the deceased’s will. Accordingly, at least six months of the delay can be explained by Mr Purnell’s ignorance of his entitlement under the deceased’s will. “Mr Purnell’s evidence that he suffered a series of mental and physical health issues between August 2016 and early 2018 was not challenged by Mr Tindale and there are medical records in evidence which support Mr Purnell’s evidence. In July 2017, when Mr Purnell first learned of a right to make a claim for provision, he did not have the financial resources to take action at that time. While perhaps surprising that he had not been informed by two firms of solicitors that his claim for provision had to be brought within 12 months of the deceased’s death, in cross-examination, Mr Purnell maintained that Mr Voros did not tell him of the 12 month time limit. His lack of knowledge of the time limit, his bad health and his parlous financial circumstances are all matters that were likely to have impacted Mr Purnell’s judgment and ability to take steps to prosecute his claims in a timely manner: Neil v Nott (1994) 121 ALR 148; [1994] HCA 23 at 151; Taylor v Farrugia [2009] NSWSC 801 at [15],” her Honour said [134]. Her Honour was not satisfied to the defendant’s material prejudice [145]. “As to the strength of Mr Purnell’s claim for provision, the first point to note is that allowing Mr Purnell to pursue his claim out of time would not, in my view, have the effect of strengthening his claim: Verzar v Verzar [2014] NSWCA 45 at [34]. To the contrary, it seems to me that the strength of his application may have weakened because, considered as at 15 July 2019, the value of Mr Purnell’s distribution from his mother’s estate was known,” [146]. “In De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep), Powell JA considered that, as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail,” [147]. “In Underwood v Gaudron [2018] NSWCA 269 at [89], Basten JA concluded that evidence of prejudice resulting from the delay, an incomplete justification for delay and lack of notice to the respondents, would permit the Court, unless satisfied on a

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Family provision, 67yo blind nephew ineligible

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preliminary consideration of a strong claim for a family provision order, to refuse to “otherwise order” an extension of time pursuant to s 58(2),” Henry J said [148]. “In this case, I have concluded that Mr Purnell had sufficient cause for not making the application within time and that his change of mind was explicable in the context where his 22 February email was sent without the benefit of legal advice and knowledge of his rights. I have also concluded that no significant prejudice to Mr Tindale has been shown to arise from the delay. While I have ultimately found that Mr Purnell is not entitled to relief, I do not consider that his application was bound to fail and have approached the question of the prospects of success as a neutral factor in considering whether to grant an extension of time. It follows, in my view, that I should exercise my discretion and grant Mr Purnell an extension of time to bring the proceedings,” [149]. To eligibility [150]+, noted reliance on Succession Act 2006 (NSW) s 57(1)(e), its elements “wholly or partly dependent” and “a member of the household of which the deceased person was a member”. To dependency, Henry J [153] - [156]: “The question of whether a person is wholly or partially dependent on another is a question of fact: Spata v Tumino [2018] NSWCA 17 at [68]. “In its ordinary sense, dependency means the condition of depending on something or someone for what is needed. The whole relationship must be considered to determine whether there is dependency, considering past events and future possibilities: Ball v Newey (1988) 13 NSWLR 489 at 491, cited with approval in Spata v Tumino [2018] NSWCA 17 at [68] and [78] (Payne JA). “Dependency is not limited to purely financial or material matters, although it does involve one person being beholden to another for some material or physical help or succour, emotional dependency is not enough: Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347; Skinner v Frappell [2008] NSWCA 296 at [85]. “Reliance on someone for accommodation may amount to dependence, but the mere fact of lodging in another’s property without paying rent does not necessarily amount to dependence: Spata v Tumino [2018] NSWCA 17 at [82]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [109]- [111],” Henry J said [156]. On same household, [158] - [162], her Honour: “The Act does not specify a particular length of time during which Mr Purnell must have been a member of the same household as the deceased and the period during which he and the deceased shared the same household does not necessarily have to coincide with the period during which he says he was wholly or partly dependent on her: Wolff v Deavin [2012] NSWSC 1315 at [30] (Macready AsJ). “Central to the concept of being a member of a household is people “living together” in a home: Benny v Jones (Supreme Court (NSW), Young J, 13 February 1990, unrep). This is consistent with the Oxford English Dictionary definition of “household” being "the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit; a domestic establishment (including any servants, attendants, etc.)". Prima facie, there must be some element of residence or living of the two people concerned in the same house. It is not sufficient for a person to visit on a regular basis without regularly staying overnight: Wagstaff v Wagstaff (Supreme Court (NSW), Windeyer M, 6 November 1991, unrep); Marning v Staniforth (Supreme Court (NSW), 25 March 1987, Hodgson J, unrep); Bezjak v Wyatt [2018] NSWSC 199 at [79]. “The phrase ‘household’ is abstract and is to be contrasted to the word ‘house’. There are no hard and fast rules as to what constitutes a household, and the point at which a living arrangement becomes a household is one of degree. A person can be a member of two households. As Hallen J notes, it is the characteristics and dimension of the

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Family provision, 67yo blind nephew ineligible

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domestic relationship that makes a “house” a “household”: Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [38], [39]; Spata v Tumino [2017] NSWSC 111 at [48], not disturbed on appeal, Spata v Tumino [2018] NSWCA 17 at [58]; Marning v Staniforth (Supreme Court (NSW), 25 March 1987, Hodgson J, unrep); Wolff v Deavin [2012] NSWSC 1315. “The concept of membership of a household also connotes a degree of continuity and permanency of mutual living arrangements. There is no set period of time in which a person has to be a member of the household, but they must be a member of the same household as the deceased for some period: Bezjak v Wyatt [2018] NSWSC 199 at [78] and [79]; Amprimo v Wynn [2015] NSWCA 286 at [90] citing with approval statements made by Bryson AJ in Porthouse v Bridge [2007] NSWSC 686 and McLelland J in Munro v Lake (Supreme Court (NSW), 8 February 1991, unrep); Russell v NSW Trustee and Guardian [2013] NSWSC 370 at [35] to [51] and the cases cited there,” Henry J said [162]. At [189] “In cases involving events many years ago, such as this, contemporaneous documents usually provide valuable and more revealing information than what can be considered to be flawed attempts at recollection of facts by persons with an interest in the outcome of litigation, particularly where they have been prepared by a person with no reason to mis-state the facts: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247].” Her Honour found the plaintiff as a boy a regular visitor of his aunt, similarly in his early adulthood. “I find that Mr Purnell visited the deceased at the Chelmsford Ave house on regular occasions up until 1989 but did not stay overnight or for lengthy periods of weeks or months in the 1970’s or 1980’s. I accept that the deceased gave cash to Mr Purnell, in amounts of $20 and $50 on occasion, most likely during 1983, and also gave him cash gifts on special occasions such as birthdays, Christmas and weddings,” [206]. “Even if I was to accept Mr Purnell’s evidence that he stayed at the Chelmsford Ave house for periods while he was an adult, I am not persuaded that he depended on the deceased to provide him with accommodation when he was an adult. Mr Purnell had alternative accommodation available to him, being his mother’s house, and his evidence is that the deceased invited him to stay, not that he asked the deceased because he relied on her to provide him with housing: Bayssari v Bazouni [2014] NSWSC 910 at [53],” Henry J said [232]. In [239] “I am not persuaded that Mr Purnell depended on the deceased for the services required by a child: Page v Page [2017] NSWCA 141 at [101]. “As to the emotional support provided by the deceased, I am not persuaded that such support is sufficient to conclude that Mr Purnell was wholly or partially dependent on the deceased during his childhood as required by section 57(1)(e) of the Act. While dependency can involve the satisfaction of a non-financial need or the basic necessities and can extend to the services essential for well-being, there is authority that emotional dependency is not enough: Skinner v Frappell [2008] NSWCA 296 at [85],” Henry J said [240]. Found the plaintiff not an eligible person [243]. Her Honour hypothesised there were no factors warranting an award, that adequate provision for his proper maintenance and advancement had been made in the will, so circumstances for an order for notional estate would not have been found. At [326] “The second issue in dispute is whether Mr Purnell has established there were other special circumstances that justify the making of any notional estate order: s 90(2)(b) of the Act,” Henry J said.

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Family provision, 67yo blind nephew ineligible

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“The authorities indicate that more is required to establish special circumstances than to justify an extension of time; the latter requires sufficient cause to be shown. That said, to establish such special circumstances, does not require the court to exclude circumstances considered under s 58(2) of the Act: Campbell v Chabert-McKay [2010] NSWSC 859 at [86]; Stone v Stone [2016] NSWSC 605 at [71],” her Honour said [327]. “Other special circumstances may exist for the purpose of s 90 notwithstanding that there has been a change in beneficial ownership in the Chelmsford Ave house by reason of the facts surrounding the property in question and the identity of the person or persons to whom the property has been distributed: Vaughan v Curran [2019] NSWSC 1562 at [43] (Emmett AJA, sitting at first instance),” [328]. “Circumstances are special if they are unusual, uncommon or exceptional in character, quality or degree; if they differ from the ordinary or the usual; or if they are particular or individual. They need not be unique: Charnock v Handley [2011] NSWSC 1408 at [89] (Hallen AsJ, as his Honour then was); Campbell v Chabert-McKay [2010] NSWSC 859 at [91],” [329]. To costs, “Mr Purnell’s claim could not, in my view, be described as frivolous or without any prospects of success. It is also a case in respect of which minds may differ, which is often the position in family provision cases,” her Honour said [337]. “Mr Purnell is not currently in a financial position to readily meet an order to pay for Mr Tindale’s legal costs, which are estimated to $76,000 on an ordinary basis. While there are funds available from the remainder of his mother’s legacy, to require him to pay those costs would see Mr Purnell’s limited financial reserves reduced by approximately 10%,” [338]. “In those circumstances, my view is that the overall justice of the case requires that the usual rule that costs follow the event should not apply and that no order should be made for Mr Purnell to pay Mr Tindale’s costs,” Henry J said [339]. Time extended, claim dismissed, no order to costs. P: K Morrissey ins Turner Freeman Lawyers. D: R Tregenza ins Lander & Daniel.

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Family provision, Crisp order for widow

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Crisp order for widow

Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713. Kunc J. 9.6.20. Later will admitted, family provision awarded to the second wife of the deceased, the late Mr Lau, whose distributable estate was valued at about $2.2m comprising realty and cash. “At the conclusion of the hearing, the Court determined that the 2016 Will should be admitted to probate and this much was indicated to the parties. There were no demonstrated suspicious circumstances to suggest Mr Lau did not know and approve the contents of the 2016 Will, or that the 2016 Will did not truly reflect his testamentary intentions. These conclusions were primarily based on the clear and uncontradicted evidence of the solicitor who prepared and witnessed the 2016 Will, that Mr Lau made the arrangements for the 2016 Will himself and that the terms of that will were logical, albeit not as favourable to Mary as the 2001 Will. Mr Lau’s testamentary capacity was not put in issue, nor was there any suggestion that the 2016 Will had not been properly executed and witnessed,” Kunc J said [4]. “The Court has determined additional provision is to be made for Mary in two ways: (1) An order of the kind made by Holland J in Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unreported) (“Crisp v Burns Philp Trustee”) (a “Crisp order”), giving Mary what might be termed a “portable” life interest in the Bexley Property ensuring her ability to move to other accommodation as her circumstances require and as she thinks fit. To assure her independence in this regard, the Court’s orders are to be subject to a condition - volunteered by Gary - that Gary renounce probate of the 2016 Will so that Mary will continue as the sole executor. (2) Mary is further entitled to additional provision of $45,000 from the Estate. That amount is intended to cover the necessary costs of improvements to the Bexley Property and other minor expenditure,” his Honour said [7]. After a two day hearing in February, noted plaintiff’s costs $143,300 indemnity or $100,310 party party, defendant’s $109,613. Of the solicitor who had drawn the 2016 will, Kunc J said: “The Court accepts Mr Anagnostellis as a reliable and truthful witness. Mr Anagnostellis was clear and concise in his evidence and, notwithstanding that the events in question happened four years ago, his recollection struck me as reliable,” [54]. “The Court finds that the file note Mr Anagnostellis prepared during his meeting with Mr Lau on 29 November 2016 was consistent with his usual practice of preparing file notes. Mr Anagnostellis has practiced as a solicitor since 2005 and in sole practice since 2010. There was no reason to doubt that the file note was anything other than an accurate, contemporaneous record of Mr Lau’s testamentary intentions, as communicated by Mr Lau to Mr Anagnostellis and subsequently discussed between the two,” his Honour said [55]. “Mr Anagnostellis ‘ evidence, and in particular his contemporaneous file note is the primary basis on which the Court finds that Mr Lau was clearly cognisant of his actions and their potential impact on his surviving family members. I am fortified in this conclusion by the fact that notwithstanding his physical ailments, Mr Lau’s capacity in executing the 2016 Will was never put in issue. It is also of significance that this was not the first occasion on which Mr Lau demonstrated an awareness of a life estate, having raised it previously with Mr Hayward in 2005,” [56]. Kunc J shortly exposed incidents of suspicious circumstances [78]+. “In matters where there is no question as to the testator’s capacity or to the legitimacy of the will, the presumption arises that the testator also knew and approved of the

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Family provision, Crisp order for widow

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contents of their will: Ridge v Rowdan (NSWSC, Santow J, 10 April 1996, unreported),” [78]. “However, in some cases the circumstances surrounding the giving of instructions for a will and its subsequent execution may be such to “excite the suspicion” of the Court that the provisions of the will may not have been fully known to, and approved by, the testator. Where such circumstances exist, the presumption as to the testator’s knowledge and approval does not arise and the person seeking to propound the will has the burden of removing the suspicion: Tyrrell v Painton [1894] P 151, per Lindsay LJ at 156-159,” [79]. “Hallen AsJ (as his Honour then was) set out in Romascu v Manolache [2011] NSWSC 1362 at paragraph [205] the factors the Court may look at when considering whether circumstances that excite suspicion exist, including:

“...the circumstances surrounding the preparation of the propounded will; whether a beneficiary was instrumental in the preparation of the propounded will; the extent of the physical and mental impairment, if any, of the deceased; whether the will in question constitutes a significant change from a prior will; and whether the propounded will, generally, seems to make testamentary sense.”

“The relevant circumstances are only those that relate to the preparation of the will in question, its intrinsic terms and the circumstances surrounding its preparation and execution: Alan John Hyland v Laura Healy [2013] NSWSC 1513 at [25]. Circumstances both antecedent and subsequent do not have bearing on the determination of whether or not the suspicion is made out,” Kunc J said [81]. His Honour thereafter detailed Succession Act 2006 (NSW) Part 3.2 particularly ss 59 [When family provision order may be made] and 60 [Matters to be considered by Court]. In submissions, noted “Mr Willmott SC submitted that the relevant authorities require the Court to be satisfied not only of what the will said, but that the will reflected the testator’s true intentions: Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 at [47]; Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 at [441],” [88]. In [95] “The Court is well satisfied that Mr Lau did know and approve the contents of the 2016 Will and that it did reflect his testamentary intentions,” Kunc J said. “The primary reason for this is Mr Anagnostellis’ evidence and contemporaneous file note,” his Honour said in [96]. “The Court is not persuaded that the allegedly “secretive” way in which Mr Lau executed the 2016 Will raises suspicion. The fact that a person does not discuss their testamentary affairs with their spouse is not necessarily a cause for suspicion, especially when they are making a change that might excite disagreement, and cannot be decisive in the current proceedings when Mr Lau had previously acted in this manner in 2005 (see paragraph [28]). Mr Lau had himself previously engaged the services of Mr Anagnostellis and the contact in 2016 was of Mr Lau’s own volition. There is no suggestion that Gary or anyone else “put up” Mr Lau to make the change that he did and Mr Lau attended Mr Anagnostellis’ office by himself,” [97]. “The Court also takes into account that Mr Lau had previously discussed changing his will to give Mary a life interest in the Bexley Property with Mr Hayward in 2005 (see paragraph [28] above). Although Mr Lau’s capacity was never put in issue, the Court notes that the 2005 discussion with Mr Hayward took place prior to Mr Lau’s cancer diagnoses,” [98]. “Nor is the Court persuaded that the 2016 Will represents an unexplained or irrational change of heart on the part of Mr Lau,” in [99].

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Family provision, Crisp order for widow

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“Mr Willmott SC accepted that if Dr Chapple persuaded the Court on the balance of probabilities – after assessing the evidence in a manner consistent with the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 – that Mr Lau did know and approve the true nature and effect of the 2016 Will, then the Court must find the 2016 Will as having been proved,” Kunc J said [101]. “The Court accepts the submissions advanced by Dr Chapple and finds no circumstances exciting suspicion that would otherwise rebut the presumption that Mr Lau knew and approved of the contents of the 2016 Will. The 2016 Will will be admitted to probate,” [102]. Then considered evidence and submissions in the family provision claim of the widow. To the suitability of a Crisp order, Kunc J: “As set out in paragraph [115] above, the name “Crisp order” comes from Crisp v Burns Philp Trustee. In Prior v Kerrison [2017] NSWSC 1295 (“Prior”) at [29], Rein J provided a concise overview of the nature of this order and referred to more recent examples, citing the following from Ipp JA (with whom Macfarlan JA and Sackville AJA concurred) in Milillo v Konnecke [2009] NSWCA 109 at [47]- [48] : [Ipp JA] “A Crisp order is an order of the kind made by Holland J in Crisp v Burns Philp Trustee Co Ltd (NSWSC, 18 December 1979, unreported). Generally speaking such an order gives a plaintiff an interest for life in real property or in an interest in the property, with the right to it (should the need arise) for the purposes of securing, for the plaintiff’s benefit, more appropriate accommodation. In Court v Hunt (NSWSC, 14 September 1987, unreported) Young J (as he then was) said that a Crisp order was intended to provide flexibility, by way of a life estate, the terms of which could be changed to “cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital” [47]. “Thus, for example, a Crisp order may entitle a plaintiff, from time to time, to require the executor of a will to sell a home devised by the will, or otherwise owned by the estate, and to use the proceeds for purposes that may include purchasing another home for the plaintiff’s use and occupation, or providing accommodation for the plaintiff in a retirement village or similar institution, or in like accommodation providing hospitalisation and nursing care. The flexibility provided by such an order underlies the notion that a Crisp order confers a “portable life interest” [48]. Kunc J: “The agreed value of the Bexley Property at the time of the hearing was $1,000,000. Bearing in mind Mary’s submission that alternate accommodation would require an outlay of $800,000 (which the Court has found to be at the higher level, see paragraph [64]), I am satisfied the sale of the Bexley Property will provide sufficient funds in the event Mary must move to a unit of the kind she has in mind,” [132]. Allowed further $45,0000 to the widow to repair the Bexley property. Orders for short minutes, indicating the widow’s costs on the ordinary basis and the defendant’s indemnity from the estate. P (widow): M Willmott SC, M Fraser ins Access Legal Solicitors. D (son): S Chapple ins Bridges Lawyers.

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Family provision, no contracting out, Deed of Family Arrangement refused

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Deed of Family Arrangement refused as family provision settlement The Estate of Wilson [2020] NTSC 29. Kelly J. 1.6.20. Mr Wilson, who died late 2019, made a will in October 2014 favouring his wife, who died later that year, with equal gifts over to their own two children, including the instant applicant, and two others of hers. The gentleman remarried in the Philippines in mid 2016. Kelly J noted Marriage Act 1969 (Cth) Part VA [Recognition of Foreign Marriages] ss 88A through 88G. The estate was valued a little less than $400,000. Kelly J: “The will of 30 October 2014 was revoked by the deceased’s marriage to Ms Salvajan, [Wills Act 2000 (NT) s 14(1)] with the result that the deceased died intestate,” [7]. “Under s 66 and Schedule 6 Part 1 of the Administration and Probate Act 1969 (NT), the persons entitled to a share in the estate on intestacy are the wife, Ms Salvajan, and the two daughters, Michelle and Chantelle Wilson. The wife is entitled to the prescribed amount of $350,000 plus one third of the balance of the net estate and the two daughters are entitled to the balance. If the figures in the affidavit of assets and liabilities are accurate, that would not amount to very much – approximately $13,000 each,” her Honour said [8]. “By a Deed of Family Arrangement dated 5 March 2020 (“the Deed”), the wife, Ms Salvajan, the two daughters, Michelle and Chantelle Wilson and the two step-daughters, Natasha Guse and Jacinta Gray have agreed that the estate should be divided among the five of them, each receiving 20% of the net estate. The Affidavit of Assets and Liabilities recites that each share is estimated to be worth $78,198.30,” [9]. Kelly J detailed Family Provision Act 1970 (NT) s 8 [Persons entitled may obtain order for proper maintenance, &c., out of the estate of the deceased person]. At [17] “Any agreement to compromise a family provision claim is void as being contrary to public policy, but the terms of such an agreement may be taken into account by the court in the exercise of its discretion in an application for provision under the legislation: Daebritz v Gandy [2001] WASC 45 at [10] quoting from Dr A Dickey: Family Provision After Death, at 188 – 189; Cutting v Public Trustee for the Northern Territory (No 2) [2018] NTSC 51 at [90],” her Honour said. “Family provision claims can only be disposed of by court order, and this requirement cannot be contracted out of. This applies whether or not there is an application under the Family Provision Act 1970 (NT) on foot at the date of the purported compromise: Lieberman v Morris [1944] HCA 13; (1944) 69 CLR 69; Albany v Albany [2010] NTSC 25; (2010) 27 NTLR 89; Cutting at [82], [89] - [90],” Kelly J said [18]. “Hence, the Deed can only have effect if the court exercises its powers under s 8 of the Family Provision Act 1970 (NT) to make an order in accordance with the terms of the Deed: Bartlett v Coomber [2008] NSWCA 100 at [84] - [86]; Cutting at [87] - [88]. Just as the court may decline to make an order under s 8 of the Family Provision Act 1970 (NT) if the circumstances warrant, the court may decline to approve an agreement to compromise such a claim: Cutting at [89],” her Honour said [19]. Then, “The applicant is an eligible person to whom letters of administration of the estate may be granted. In addition, the others who would be entitled to a distribution of the estate on intestacy (the wife and the other daughter), as well as the step-daughters, have consented to her making application for administration of the estate. It would,

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Family provision, no contracting out, Deed of Family Arrangement refused

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therefore, in the ordinary course, be appropriate for her to be granted letters of administration,” [24]. “However, I do not think it is appropriate for her to be granted letters of administration of the estate in the present circumstances where her expressed intention is to distribute the estate in the proportions set out in the Deed rather than as prescribed in the Administration and Probate Act 1969 (NT) on intestacy, and the Deed is void and unenforceable (at least until an order of the court is made under s 8 of the Family Provision Act 1970 (NT) permitting a distribution in accordance with the Deed),” Kelly J said [25]. “This Court is not in a position to consider whether to approve the Deed and to make an order to that effect without the following additional information: (a) whether the step-daughters are eligible to make claims under the Family Provision Act 1970 (NT) (ie whether they were being supported by the deceased immediately before his death); (b) information about the personal and financial circumstances of each of the wife, the daughters and (if eligible), the step-daughters at the date of death of the deceased sufficient to enable the Court to determine the jurisdictional question (set out at [21] above) in relation to each of them; and (c) information about the needs of each of the eligible claimants and their ability to meet those needs out of their own resources sufficient to enable the Court to make a determination of the discretionary question (set out at [22] and [23] above) in relation to each eligible claimant,” her Honour said [26]. “Given that the terms of the Deed are so manifestly unfavourable to the wife, Ms Salvajan, notwithstanding the terms of Recital G and clause 3.2 of the Deed (referred to at [10] above), I also have some concern as to whether she has full knowledge of the amount of her entitlement on intestacy and whether she has obtained independent legal advice, as distinct from having an opportunity to do so,” [27]. “If the parties want the applicant to be granted letters of administration of the estate with authority to distribute the estate in accordance with the terms of the Deed, then it will be necessary for an application to be made to the Court under s 8 of the Family Provision Act 1970 (NT) for an order to that effect, and for the information set out at [26] above to be provided to enable that application to be determined,” [28]. “I am conscious that the estate is of modest value and that the legal costs involved in making such an application may be substantial. If the applicant, Ms Michelle Wilson, were to undertake to distribute the estate in accordance with the provisions of the Administration and Probate Act 1969 (NT) on intestacy (set out at [8] above), then she could be granted letters of administration on those terms and, after the estate has been so distributed, there would be nothing to prevent Ms Salvajan, if she wished, from making gifts to the daughters and step-daughters to achieve what the parties sought (and failed) to accomplish in the Deed,” Kelly J said [29]. Appearances unannounced.

23

Family provision, summary judgment for estate

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Financial dependency defeats assistive neighbour Re Meuleman; Quminakelo v Amidzic [2020] VSC 376. Englefield JR. 26.6.20. Judicial Registrar Englefield ordered summary judgment for the defendant $900,000 estate in this family provision application, declining the plaintiff’s application to be permitted a full hearing pursuant to Civil Procedure Act 2010 (Vic) section 64 [Court may allow a matter to proceed to trial]. “The defendant submits that Inise’s application for family provision was ‘doomed to fail’ as Inise was not an eligible person within the definition of member of the household in the Administration and Probate Act 1958 (Vic) [s 91]. The defendant referred to the New South Wales equivalent family provision legislation which has a similar, but not identical, category of eligibility [Succession Act 2006 (NSW) s 57(1)(e) being a person who was, at any particular time, wholly or partly dependant on the deceased and was, at that particular time or at any other time, a member of the household of which the deceased was a member. The defendant submitted that in New South Wales it is well established that being a member of a household with another person requires a degree of ‘continuity and permanency of mutual living arrangements’: Amprimo v Wynn [2015] NSWCA 286. Further, that living under ‘one roof’, while not sufficient by itself, was necessary. The defendant does not concede the women were ever members of the same household but relies particularly on Olive’s residence in a nursing home for nearly four years by the time of her death as placing ‘beyond argument’ that Inise was not a member of Olive’s household at the date of Olive’s death as the two women were not living in the same place,” her Honour said [19]. “The defendant also submits that the alternative formulation, that Inise and Olive had been members of the same household in the past and were likely to resume, was effectively contradicted by the evidence,” [20]. Englefield JR noted CPA s 63 [Summary judgment if no real prospect of success] and s 64. “There are a number of cases that refer to the nature of a family provision claim and the need for particular caution in summarily dismissing such claims: Warren v McKnight [1996] NSWSC 419; (1996) 40 NSWLR 390, 396; El-Zaouk v Draybi [2010] NSWSC 1001, [16-25], [28], [32]; Wolff v Deavin [2012] NSWSC 1315, [35-8]; Jackson v Newns [2011] VSC 32, [11]; IMO the Will and Estate of William James Milburn [2014] VSC 229, [34]. Family provisions cases can involve significant degree of discretion which generally weighs against summary judgment. That is not to say that summary judgment is never appropriate in family provision claims, where a claim has no real prospect of a favourable exercise of discretion, or is ‘bound to fail’: Re Rattle; O’Neil; v Equity Trustees Ltd [2019] VSC 565, [58],” her Honour said [24]. “There are four significant differences between the Victorian and New South Wales versions of ‘member of the household.’ First, the member of the household definition in Victoria requires the membership of the household be current at the time of death or likely to resume in the near future but for the death. Second, in Victoria the requirement to establish dependency is split away from eligibility in the Act. Third, a New South Wales member of the household must show ‘factors that warrant the making of the application’ (unlike persons claiming as spouses or children of the deceased in that State). Finally, in Victoria, any provision ordered for a person eligible as a member of a household must take into account and be proportionate to ‘the degree’ to which the eligible person was wholly or partly dependent on the deceased for their proper maintenance and support at the time of the deceased’s death,” [30].

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Family provision, summary judgment for estate

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“In New South Wales, ‘member of a household’ is a more flexible concept, as dependency and membership of the household do not need to coincide or be on-going at the date of death and provision is not linked to the ‘degree’ of dependency. The NSW Act, and its predecessor, the Family Provision Act 1982 (NSW) (‘NSW 1982 Act’), contain no statutory definition of ‘member of the household’,” [31]. “Despite these differences, the use of the concept of ‘member of the household’ to establish eligibility to apply for family provision in equivalent New South Wales legislation for almost 40 years, makes that State’s case law a helpful guide in interpreting this identical expression here. I may not be bound by New South Wales appeal decisions, as the NSW Act and the Act are not ‘uniform law’: Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22, [135]. However, consistency with the definition of ‘member of the household’ with the NSW Act is clearly required, as Dixon CJ remarked in Coates v National Trustees Executors and Agency Company Limited and Anor [1956] HCA 23; (1956) 95 CLR 494, 507, ‘the legislation of the various states is all grounded on the same policy and found its source in New Zealand. Refined distinctions between the Acts are to be avoided’,” the Judicial Registrar said [32]. English and other foreign judgments were noted in NSW law but were of little direct assistance. At [35] “Finally, as required by the Interpretation of Legislation Act 1984 (Vic), in interpreting the Act, a construction that promotes its purpose or underlying object must be preferred. Family provision legislation is remedial in character: Holmes v Permanent Trustee Co of New South Wales [1932] HCA 1; (1932) 47 CLR 113, 119 (per Rich J, Evatt and McTiernan JJ agreeing). Its ‘evident purpose’ is to place the assets of the deceased at the ‘disposal of the court’ to provide for ‘the nominated dependants of the deceased’: Easterbrook v Young [1977] HCA 16; (1977) 136 CLR 308, 315; Barns v Barns [2003] HCA 9, [42-4] (per Gummow and Hayne JJ). In Worladge and Anor v Doddridge and Ors [1957] HCA 45; (1957) 97 CLR 1, 9, Williams and Fullagar JJ said: [Williams & Fullagar JJ] “The jurisdiction is conferred in very wide terms and no court or judge would be justified in attempting to define it otherwise than in accordance with the ordinary natural meaning of the words in the section”. Englefield JR: “However, while the overall purpose of the Act may be remedial, the particular purpose of each provision must be identified: ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; (2014) 254 CLR 1. Eligibility under the Act is a question of fact and is not part of the discretionary exercise of jurisdiction under the Act to make provision. As noted by Derham AsJ in Bail v Scott-Mackenzie [2016] VSC 563, the purpose of the legislative requirement for eligibility as a prerequisite to seek an order for provision is limiting. The categories of eligible person set out in the Act restricts the persons who have the right to access the remedy created in the Act. Therefore, the requirement to give a purposive interpretation to family provision legislation generally, is qualified when dealing with eligibility specifically,” in [36]. Her Honour would not give summary judgment against the plaintiff “…on the basis that an involuntary physical separation of a deceased and a plaintiff for health reasons terminates a ’household’ notwithstanding continuing care, contact and involvement in each other lives”, in [49]. “Inise’s alternative argument, that Inise had been in the past and would have been likely in the near future, had Olive not died, to again become a member of the same household as Olive, is untenable,” in [50], given the lady was 94 and could not have been cared for in her own home. Her Honour detailed dependency considerations.

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Family provision, summary judgment for estate

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At [88] “I am satisfied that Inise was not in receipt of financial or material assistance from Olive at the time of Olive’s death and therefore was not dependent on Olive to any degree. The fact that it was Inise who acted as administrator does not change this conclusion, as it was not an absolute legal bar to continued dependency,” Englefield JR said. “If I am wrong and emotional support by itself without financial or material aid is dependence within s 91(4)(d) of the Act, there is no evidence that at the time of her death Olive provided a sufficient level of emotional care to Inise to create a dependency in Inise on that support for Inise’s essential emotional needs. Indeed, there is no evidence Olive was capable of providing such care nor is there any evidence of Inise having such needs. In 2013, about four years before her death, Olive was suffering dementia and incapable of caring for herself in her own home. It was Olive who was dependent on Inise’s unwavering care, advocacy and devotion for her maintenance and support at the time of Olive’s death,” her Honour said [89]. “Inise was a member of the same household as Olive from after October 2008 to 2 June 2013, when Olive was placed into residential aged care. During this period, Inise was dependent on Olive within the meaning of s 91(2)(b) of the Act,” [90]. “Summary judgment is given for the defendant on the grounds that: (i) Inise was not dependant on Olive within the meaning of s 91(4)(d) of the Act and that therefore, by s 91 (5)(b) of the Act, there can be no order for provision; and (ii) If Inise and Olive were not members of the same household at the time of Olive’s death, there was no likelihood at that time the women reforming a household ‘in the near future’,” Englefield JR said [91]. “Given the findings above, I do not consider that the Court should exercise its discretion, pursuant to s 64 of the CPA, to allow the plaintiff to proceed to a full trial of all issues. This Court has determined the jurisdictional threshold, as such there is no utility with this case proceeding to trial,” [92]. For draft orders. P: Mr R Tan ins Hegedich & De Crescenzo. D: Mr A J Verspaandonk ins Slater & Gordon.

26

Judicial advice over deed copy avails missing original

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Judicial advice over deed copy avails missing original Sutton v NRS(J) Pty Ltd [2020] NSWSC 826. Parker J. 26.6.20. A missing original trust deed, a photocopy in evidence. Parker J: “The parties to the Trust Deed were Frederick Walter Sutton as settlor and Laurie Frederick Sutton, David Bruce Sutton and Neil Raymond Sutton (the plaintiff) as trustees. The terms of the Deed provided in conventional form for the establishment of a discretionary trust with classes of beneficiaries to whom income and assets might be appointed. The principal beneficiaries were Mr Sutton's children, and the other beneficiaries included their descendants and the descendants of Mr Sutton's brothers,” [4]. “The settlor, (Sir) Frederick Walter Sutton, was Mr Sutton's father. He owned and operated a well-known Sydney car dealership known as “Suttons Motors”. He died in 2004,” his Honour said [5]. “The other two trustees were Mr Sutton’s brothers. They are both still alive,” [6]. Then, “The problem which led to these proceedings arises because the Presumed Trust’s banks (as with, apparently, all Australian trading banks) operate under what is known as a “know your customer” or “KYC” policy. As this policy is interpreted by the banks, it requires them, in the case of a trust, to be satisfied that the trust’s constituent documents are in order, and in particular to sight the constituting trust deed. Because this is not possible in the case of the Presumed Trust there is a risk of its facilities being withdrawn or of it being unable to open new bank accounts. One bank account of the Trust has been frozen until the Trust Deed is produced,” [11]. “I say nothing about whether the banks’ actions are or are not a correct interpretation of the KYC policy. But they certainly justify the making of this application. They are also the reason why the Court has dealt with the matter urgently,” [12]. At [16] “Counsel for Mr Sutton relied in his submissions on the presumption of regularity. That presumption applies where some action has been taken which depends for its validity on the completion of prior formalities. In the absence of evidence to the contrary, it can be presumed from the taking of the action that the formalities have been complied with: Harris v Knight (1890) 15 PD 170 at 179-180. Counsel relied on the decision of the Victorian Supreme Court in Re Thomson [2015] VSC 370, where the presumption was applied in a case concerning a missing superannuation trust deed,” Parker J said. “In my view, it is not necessary to rely on the presumption in these proceedings. In Re Thomson the missing trust deed was evidenced only by an unsigned copy, but in the present case there is no particular need to prove by inference that any formality has been complied with. The photocopy Trust Deed is signed and the evidence establishes directly that the parties concerned have always acted on the basis that it sets out the terms of the Presumed Trust,” [17], his Honour noting an identical copy had been located in Clayton Utz records from 1972. The summon sought declaration but Parker J had two reservations to that course. “The first is that the Court makes a declaration so as to determine formally a legal state of affairs. A declaration should not be made as to a mere matter of fact,” in [21]. “The second, and wider, difficulty is with the constitution of the proceedings. The Court should not make a declaration which may affect the status of property unless all interested parties have had an opportunity, at least, to be heard. Although, as I have stated, the trustees were named as defendants, when the matter came on before me for hearing they had not been formally served. Perhaps more importantly, other parties,

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Judicial advice over deed copy avails missing original

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apart from the present trustees, might have an interest in any declaration about the status of the original Trust Deed. This would appear to include at least Mr Sutton's brothers, the other two original trustees. Others with a potential interest in the property, such as the banks which I have mentioned, might also need to be given the opportunity to be heard,” [22]. “Fortunately, there is an alternative to declaratory relief. The Court can give advice under the Trustee Act 1925 (NSW), s 63, as to the administration of the Presumed Trust. In my view, an appropriately worded advice which will enable the trustees to treat the photocopy Trust Deed (unless the original ever turns up) as the Trust's constituting document would be an entirely apt use of the s 63 power,” [23]. “Ordinarily, it is the trustee who makes an application for advice under s 63. But I see nothing wrong with the Court giving advice to the trustees of the Presumed Trust at the instance of Mr Sutton as plaintiff. When I raised this possibility with Mr Sutton's legal representatives, they were able, during an adjournment of the proceedings, to obtain the passage of resolutions by the directors of each of the trustee companies to the effect that they consented to orders giving that advice,” Parker J said [24]. Orders, “1. The trustees of the trust settled by Frederick Walter Sutton by Deed of Trust dated 23 October 1972 are justified in administering the trust on the basis that the document annexed to this order and marked “A” is a true copy of that Deed. 2. The costs of all parties to these proceedings be paid out of the assets of the trust.” P: D Robertson ins McConnell Jaffray Lawyers.

28

Judicial advice, to executor to sue insurer declinature on “usual residence” exclusion

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Executor should sue insurer on deceased’s house fire injury to visiting son Re Murray (deceased) [2020] QSC 155. Dalton J. 12.6.20. Judicial advice, by Trusts Act 1973 (Qld) s 96 [Right of trustee to apply to court for directions], whether executor should proceed against home and contents insurer in respect of personal injury claim of the son of the deceased who died in an accidental house fire. The insurer, AAMI, relied on the policy exclusion of indemnity for injury of, inter alia, “anyone who usually lives at the insured address”, asserting the son was within the class. Dalton J: “The material shows that Guy Murray is a citizen of the United Kingdom; travels on a UK passport and did not live in Australia between 1972 and January 2019. The statement of facts is to the effect that Guy Murray’s intention was to stay in Australia only long enough to attend to arrangements for his father’s ongoing care and then return either to the United Kingdom, or South Africa, where he anticipated finding work, in April 2019. He had made no application for Australian residence,” [13]. “The phrase “anyone who usually lives at the insured address” appears to be a plain English version of the phrase more familiar to lawyers, “ordinarily resident”. There is an established meaning to this term in the case law, and my view is that the phrase the insurer relies on here should be interpreted in accordance with it,” her Honour said [14]. Dalton J thereafter exposed law to the phrase, noting Clarke v Clarke; Insurance Office of Australia Ltd [1964] VicRp 100; (1964) VR 773, 776, per Smith J, including: [Smith J] “Again, if a person has once become so connected with a particular household that it would be regarded as his permanent home, an absence from it, even if of long duration and spent in only one other household, will not, in general, be regarded as changing the place where he ordinarily resides so long as the move is for a special limited purpose and is not intended to be permanent or to continue indefinitely”. That followed in Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd [2009] NSWSC 938 [27] – [29] (White J) with authorities, Dunning v Dunning [2011] NSWSC 1278 (Harrison J), Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219, Allianz Australia Insurance Ltd v Inglis [2016] WASCA 25, [42]. At [22] “Here the position of the executor is slightly complicated by the fact that Mr Guy Murray had a plan not to return to his residence in the UK when he had finished assisting his father, but to travel, and to work in South Africa. In rejecting the estate’s claim the insurer relied on the notion that Mr Guy Murray had given up his residence in the UK, had not taken up any new residence, say in South Africa, and that therefore he must have been “ordinarily living” with his father, as he had no other residence. I do not regard this reasoning as sound. Just as a person may have more than one residence, it is possible that a person may have no residence. It seems to me Mr Guy Murray fell into this class. His intention was to abandon residence in the UK and take up residence in South Africa. He had achieved the former part of his plan, and was yet to achieve the latter. In the meantime he was visiting his father in Australia. At no time was his intention to reside or “ordinarily live” in Australia, or with his father. Like Mr Williams junior in the case just discussed, Mr Guy Murray was having a holiday, or paying a visit, before resuming a residence. It makes no difference that the purpose of the visit was to attend to his father’s declining health. His intention was to stay with his father for a limited duration and a limited purpose,” Dalton J said.

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Judicial advice, to executor to sue insurer declinature on “usual residence” exclusion

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“My conclusion after review of the cases is that it is in the interests of the estate to challenge the rejection of the claim by the insurer,” [24]. “The relief sought by the applicant is to the effect that it is justified in commencing litigation against AAMI. I think that relief ought to be granted in a more nuanced way. It is to be hoped that the matter of indemnity could be resolved without instituting legal proceedings in the first instance,” [25]. “I will direct that the executor is justified in insisting on indemnity from the insurer AAMI under Policy Number HPA029266396 in respect of the claim made against it by Guy Murray for personal injuries arising out of the fire at 31 Dolphin Crescent, Noosaville QLD 4566 on 7 March 2019, including, should it become reasonably necessary, commencing litigation against that insurer, or joining it to litigation,” Dalton J said [26]. P: J W Lee ins Lynch Law. Son: Murphy Schmidt, K Cummins. D Skennar QC, for a Dr C Bain. Pippa Colman & Assocs, A Colman, for Messrs J & A Bain.

30

Laches over 30 years defeats brother’s farm claim

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Laches over 30 years defeats brother’s farm claim Halford v Halford (No 3) [2020] WASC 207. Allanson J. 11.6.20. Allanson J: “On 15 February 2016, Jeffrey Halford, as trustee of a trust created by the will of his late father, sold the remaining asset of the estate - the Glen Iris Farms Properties (Glen Iris). At the time of the sale, Jeffrey was entitled to two thirds of the residuary estate and, his brother, [the plaintiff] Kai, was entitled to one third,” [1]. “Glen Iris was mortgaged to secure bank loans, and part of the proceeds of sale was applied to repay those loans. Kai contends that the loans secured against Glen Iris were personal debts of Jeffrey and his wife, Pamela. The primary question in this action is whether Kai is entitled to one third of the net sale proceeds before repayment of the loans, or only to one third of the balance after repayment. Put another way, is Jeffrey entitled to be indemnified from the proceeds of sale for the debts secured against Glen Iris,” his Honour said [2]. The plaintiff had been out of contact with the defendants for more than 30 years. The defendants pleaded limitation by statute, laches and estoppel. To the statutory limitation, noted Limitation Act 2005 (WA), at [181] “The defendants pleaded a statutory bar, based on Kai's plea that the relevant receipt or receipts of funds by the defendants was from in or about 2 August 2005 to a date subsequent to 30 April 2010,” Allanson J said. “If the relevant time was the dates funds were disbursed, $2 million was disbursed into the defendants' Agrione Account on 11 May 2010. That was more than six years before the writ. But the defendants' borrowing was restructured in May 2014, and Bankwest disbursed $2,976,886.95 across various accounts on 25 June 2014. The action was commenced in 2016,” [182]. “If the relevant date is when the funds were repaid to the bank, that is, when the defendants used trust property to discharge a personal liability, that is clearly within the limitation period,” [183]. To estoppel, noted Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, 428 - 429; Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507, 547 and further, Grundt v Great Boulder Proprietary Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 675, per Dixon J: [Dixon J] “The justice of an estoppel is not established by the fact in itself that a state of affairs has been assumed as the basis of action or inaction and that a departure from the assumption would turn the action or inaction into a detrimental change of position. It depends also on the manner in which the assumption has been occasioned or induced. Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it”. Italicised emphasis above added by Allanson J instantly, and in determination of the estoppel question, in [202] “Kai's knowledge of how Glen Iris was being operated was scant. I accept that he had a long standing distrust of Jeffrey, but that is not a substitute for knowledge of the relevant facts. I am not satisfied that the relevant knowledge has been shown,” his Honour said. To laches, in [203], “The defence of laches calls for consideration of the delay in Kai advancing a claim, prejudice caused by that delay, and the balance of justice in granting or withholding a remedy,” Allanson J said. “The classic statement of principle is found in Lindsay Petroleum Company v Hurd (1874) LR 5 PC 221, 239 - 240, where Lord Selborne said:

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Laches over 30 years defeats brother’s farm claim

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[Lord Selborne] “Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy”. Allanson J also noted Fysh v Page [1956] HCA 13; (1956) 96 CLR 233, 243 - 244. “First, the delay in this case is gross. The defendants carried on the business of farming Glen Iris from about 1984. Kai knew Jeffrey was farming the land, but for about 30 years, Kai did nothing,” Allanson J said [206]. The delay was unexplained. “The delay is not explicable by Kai being unaware that money was being borrowed for the purpose of carrying on farming operations on Glen Iris, and would normally be secured against the property. There were mortgages in place while he was still active in the Halford Bros partnership. In June 1981, he was told by the family accountants that there were mortgages over the land,” in [210]. “Kai also said that he did not believe that the defendants could borrow against his share. That belief (if genuinely held) was wrong in law. The trustee held the legal interest in Glen Iris, subject to the trusts under the will, and duties imposed on the trustees (such as the duty to act impartially between the life tenant and those who took on her death). When borrowing for a purpose authorised by the will, the trustee could encumber the whole of the legal estate as security,” [212]. At [213] “The second issue is prejudice from the delay: 'the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy'.[164] In Fysh v Page, Dixon CJ, Webb and Kitto JJ said: [Dixon CJ, Webb and Kitto JJ] “If a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed. If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds for relief”. Allanson J: “In considering Kai's primary claim, it is tempting to look at the position in 2014, when Iris died, and the level of borrowing then against the value of Glen Iris. The plaintiff points to the drawings made in the last years of the partnership, and the assets accumulated in the previous decade. That, however, is a distorted picture. The level of borrowing was a consequence of repeated refinance over a prolonged period. The borrowing over that period must be assessed against the expenditure on Glen Iris from when Kai left the partnership,” [215]. “There are other potential sources of prejudice. Meagher Gummow and Lehane's Equity: Doctrines and Remedies (5th ed) at [38-025], refer relevantly, to: (1) the

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Laches over 30 years defeats brother’s farm claim

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impossibility of granting equitable relief on just terms; and (2) where a plaintiff seeks to recover profits, but has knowingly stood by while the defendant was making profits,” [216]. “In the present case, while the defendants have profited from operating Glen Iris, they have done so at their risk, and by their labour. It is true that the defendants profited, and were able to build up off-farm assets. That was from a lifetime of work. The defendants stood to lose everything should Glen Iris fail. After 1980, Kai contributed nothing and risked nothing,” his Honour said [217]. “It is relevant, in considering the equity between Kai and the defendants, that Iris, who was the trustee and life tenant, acquiesced in the defendants operating Glen Iris. Kai has criticised the extent to which the defendants operated Glen Iris for their own benefit, rather than for Iris. But there is no evidence that she ever had needs that were not met. More importantly, there is no evidence that her wishes regarding the operation of Glen Iris were not followed,” [218]. “Having regard to the length of the delay, during which Kai did nothing to either assert his rights, or even to enquire about Glen Iris, and having regard to the nature of the enterprise in which the defendants were engaged, I am not satisfied that making the orders sought by Kai would be just,” [219]. “On the basis of the gross delay, I would dismiss the primary claim,” Allanson J said [220]. “Kai is entitled to one third of the net proceeds of the sale of Glen Iris, after deduction of selling costs and mortgage repayment. Jeffrey is not entitled to deduct the Agreed Rent from the amount due to Kai,” [225]. “Kai's claim is otherwise dismissed.” P: M Bennett, F Sharbanee ins Bennett + Co. 1&2D: P MacMillan ins Pacer Legal.

33

Probate, death bed instructions document not admitted

www.gapublishing.com.au Wills Estates Monthly WEM 6.20

Instructions note fails knowledge and approval Tolbert v Hicklin [2020] QSC 166. Brown J. 10.6.20. “The question for determination in this matter is whether notes prepared by a solicitor containing testamentary intentions should be recognised as the last will of Kenneth Hicklin pursuant to s 18 of the Succession Act 1981 (Qld) or whether the Court should pronounce the force and validity of the will of Kenneth Hicklin dated 7 August 1979,” Brown J said [1]. “Just prior to his death, Kenneth gave instructions from his hospital bed to [solicitor] Andrew Paul Pattison who prepared a handwritten document containing instructions for a Will, dated 4 June 2017 signed by Mr Hicklin and witnessed by himself (the 2017 Document),” [7]. “There are two principal points of contest between the parties in relation to the 2017 Document: (a) Whether or not Kenneth had intended for the 2017 Document to be his will; and (b) Whether Kenneth had knowledge and gave approval of the contents of the 2017 Document,” her Honour said [10]. “Section 10 of the Succession Act 1981 (Qld) provides that a Will must be in writing and signed by the testator in the presence of two witnesses who must attest and sign the Will,” [13]. “The 2017 document was only witnessed by Mr Pattison. As it does not comply with the requirements for the execution of a formal will as prescribed in s 10 of the Succession Act, the document can only have effect if the court dispenses with the formal requirements pursuant to s 18 of the Succession Act,” [14]. Her Honour elicited facts and authorities. At [134] “In the absence of suspicious circumstances, and given the evidence that Mr Pattison signed the 2017 Document, establishing knowledge and approval is not unduly onerous, it is a matter which still must be established,” Brown J said. “While Kenneth was given the 2017 Document to check before he signed it, I am not satisfied that he understood that it was to be his will and intended it to have that effect. Mr Pattison could not recall whether or not Kenneth had his glasses on when he “checked” the contents of the document. All of the evidence of the Siblings supported the fact that Kenneth required glasses for reading. Further, the 2017 Document was hand written with some shorthand terms, which were not readily comprehensible, which Mr Pattison had to explain in Court. While it was headed “Will” it also had another person’s name “Hickson” and contained matters Mr Pattison was making a file note of in relation to his defence service entitlements and matters of advice given to Kenneth in relation to potential claims by the children. It was not clearly a document that was a will on its face, albeit it contained his testamentary intentions. As stated above, it did not expressly state it revoked all previous wills. It was just as open to be interpreted as a record of instructions for the proposed will rather than a will itself. Kenneth did not ask any questions suggesting he understood its content. While the 2017 Document was not complex, Kenneth did not ask Mr Pattison to explain his shorthand notations, which Mr Pattison had to explain in Court, nor did he correct Mr Pattison’s spelling of “Ethan” to “Ethyn.” The evidence supported the fact that the spelling of Ethyn’s name was something Kenneth was very particular about. Despite “checking” the document, Kenneth did not pick up the spelling error in Ethyn’s name. Those factors suggest that Kenneth did not read the 2017 Document thoroughly and take the care one would expect if it was to be his will,” [135].

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Probate, death bed instructions document not admitted

www.gapublishing.com.au Wills Estates Monthly WEM 6.20

“Further, Mr Pattison stated that Kenneth got quite agitated in their discussion and although he considered that Kenneth had calmed down, he also observed that Kenneth was lying down at the end of their meeting on 4 June 2017. Those matters also suggest that he was not in a position to focus on the content of the document. While I accept Mr Pattison orally went through the notes it was, as I have found above, by way of confirming his instructions for the preparation of a will and the advice given, not on the basis that it was a will. Kenneth did not inform Nina that he had made a will on 4 June 2017. There is no evidence that Kenneth had subsequently confirmed his intention that the 2017 Document was his will or was binding or in any way ratified the 2017 Document as his will,” [136]. “Section 18 of the Succession Act is beneficial in nature and to ensure that a testator’s intentions are given affect, such that the benefits of change should not be withheld by requiring too rigid a manner of proof: Re Garris [2007] QSC 181; [2008] 2 Qd R 59 at [9]. However, when all of circumstances are considered, this is not a case where I cannot be satisfied that the 2017 Document was regarded by Kenneth as anything more than a note of his testamentary intentions or instructions which were going to be reproduced in a formal will,” [137]. “I am not satisfied to the requisite standard that the 2017 Document is a document that Kenneth intended to form his will such that the requirement of s 18(2) of the Succession Act is satisfied. The counterclaim should be dismissed,” [138]. “It is therefore appropriate to pronounce the 1979 Will as Kenneth’s last valid will,” Brown J said [139]. In [140] “The present case was one which I consider had to be brought before the court for determination given the existence of the 2017 Document.” For orders, costs see further below. P: J Byrnes ins Cooke & Hutchinson. D: L Nevison ins Big Law Pty Ltd.

Indemnity costs from estate Tolbert v Hicklin [2020] QSC 199. Brown J. 26.6.20. Costs determination from foregoing. In [6] “Given that the testamentary intentions contained in the 2017 Document provided for Nina’s son Ethyn, not Nina herself, to receive the house, it was not unreasonable for her not to accept the Calderbank offer. As to the submissions of whether this case was stronger or weaker than Re Prien [2019] VSC 47, each case turns on its own facts and it was not unreasonable for Nina to not accept that the outcome of the present case would be the same as in Re Prien, particularly since the present case largely turned on the evidence of Mr Pattison who had to be subpoenaed at trial. The 2017 Document raised a matter which properly required the determination of the Court, namely whether Kenneth intended the 2017 Document to be his Will,” Brown J said. “Although seeking to resolve proceedings through alternative avenues such as Calderbank offers is to be encouraged, I do not find that Nina was unreasonable in rejecting the Calderbank offer made by Cameron,” [8]. Footnoting “… to the principles of costs in estate matters I adopt Applegarth J’s statement in Frizzo v Frizzo (No 2) [2011] QSC 177 at [25]- [39],” Brown J said “As to the appropriate costs order, the present case is an unfortunate one where Kenneth took steps to give instructions for a new will immediately prior to his death, but was not fit to execute the formal will that was drafted as a result of those instructions. Nor could

35

Probate, death bed instructions document not admitted

www.gapublishing.com.au Wills Estates Monthly WEM 6.20

Kenneth determine that he did not wish to proceed with the will. As a result, Kenneth left a state of uncertainty as to his intention upon his passing. There is no doubt that the result has been to delay the administration of a small estate. Nina and her son have, to a certain extent, benefitted from that delay by being able to remain in the Kallangur Property. I am not able to attribute the delay to any particular party,” [9]. “In the particular circumstances of this case, it could not be said that Nina continued fruitless litigation with the costs to be defrayed by others. There were reasonable grounds upon which to propound that the 2017 Document satisfied s 18 of the Succession Act and Nina acted reasonably in doing so: Daley v Barton: Barton v Daley [2008] QSC 322 at [7]; Dolan v Dolan [2007] WASC 249 at [59]- [60], albeit that the counterclaim ultimately was unsuccessful. The litigation was the result of Kenneth seeking to make a further will at the very last minute, albeit that he appeared to deteriorate very suddenly. I found that the Defendant did not have any involvement in Kenneth’s provision of instructions to Mr Pattison,” her Honour said [10]. “In my view, notwithstanding the small size of the estate, it is appropriate that both parties’ costs are paid out of the estate, in the particular circumstances of this case, on an indemnity basis, rather than costs following the event,” [11]. Grant to the plaintiff on the 1979 will, costs. P: J Byrnes ins Cooke & Hutchinson. D: L Nevison ins Big Law Pty Ltd.

36

Probate, sibling defendants concealed alleged will until after death

www.gapublishing.com.au Wills Estates Monthly WEM 6.20

Niece, nephew fail to dispel suspicious circumstances Agostino v Pietbron & Anor [2020] SASC 117. Stanley J. 26.6.20. “The application is unusual in that the defendants oppose the application to prove the 2003 will on the sole ground that it was revoked by a subsequent will the deceased made in 2014. There is no challenge by the defendants to the validity and due execution of the 2003 will. The only issue in relation to the 2003 will is whether it was superseded by the later will. The defendants do not seek to have the alleged will of 2014 admitted to probate but, nonetheless, they bear the onus of proving the validity of that document because, by raising its existence as revoking the 2003 will, in effect they are propounding the 2014 document as the deceased’s last will and testament,” Stanley J said [4], footnoting Tobin v Ezekiel [2012] NSWCA 285 at [44]- [53], (2012) 83 NSWLR 757 at 770-773; Veall v Veall [2015] VSCA 60 at [166]- [179], (2015) 46 VR 123 at 173-178. Of the 2014 instrument, “The alleged will appoints the deceased’s niece, Nancy Pietrobon, as her executor and trustee. The deceased leaves the whole of her estate, after payment of debts and testamentary expenses, to be divided equally between the defendants, Nancy Pietrobon and the deceased’s nephew, Dominic Agostino. Dominic Agostino is appointed as the substitute executor. It is dated 20 August 2014 and purports to be signed by the deceased. The document appears to be prepared from a will kit. It is written in English. It appears to be witnessed by Joyce Bueti and Lisa Fuda,” his Honour said [19]. “The effect of the document is to disinherit her son and her six grandchildren and leave the whole of her estate to her niece and nephew,” [20]. “The evidence is that the deceased did not give any notice to the plaintiff or any of the deceased’s grandchildren of any intention to make a new will in these terms. There is no evidence that the deceased informed [her later deceased son and husband of the plaintiff] Rocco of any intention to do so,” [21]. “In order to prove a will the proponent must establish that the testator had testamentary capacity and knew and approved the contents of the will at the time of its execution: Veall (supra) [166]. Testamentary capacity and knowledge and approval are distinct concepts. The establishment of testamentary capacity is a necessary but insufficient condition for the establishment of knowledge and approval: Veall [173]. If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity,” Stanley J said in [22]. “In Tobin v Ezekiel (supra), Meagher JA, with whom Basten and Campbell JJA agreed, cited with approval a passage from the reasons of McPherson JA in Thompson v Bella-Lewis [1996] QCA 27; [1997] 1 Qd R 429 that the circumstances which can raise a suspicion concerning knowledge and approval must be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator’s death: Tobin [46]. The exception to this may be where the will is retained by someone who benefits under it, or who participated in its preparation or execution,” [23]. “Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Tobin [46],” his Honour said [24] before citing further from Tobin and Veall, the latter adopted by Kourakis CJ in Roche v Roche & Anor [2017] SASC 8 at [536]- [537].

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Probate, sibling defendants concealed alleged will until after death

www.gapublishing.com.au Wills Estates Monthly WEM 6.20

His Honour weighed the evidence in the defendants’ case, noting in [43] “I was not impressed the evidence of either defendant. Important details changed during the course of each of them giving evidence. Their evidence was riddled with inconsistencies. They contradicted each other.” The defendants had not discharged their onus [45]. The Court was unconvinced that the 2014 instrument witnesses had in fact seen the deceased sign the document. Suspicious circumstances identified by Stanley J were (i) exclusion of persons naturally having a claim, particularly her son and grandchildren; (ii) departure from testamentary wishes expressed in 1995 and 2003 wills; (iii) “… evidence that casts doubt on the deceased’s mental acuity at the time the alleged 2014 will was ostensibly executed”, at [55]; (iv) the deceased having informed others that her property would go to her grandchildren and no explanation to disinherit Rocco; and further: “Fifth, the alleged 2014 will was taken into the possession of the second defendant, one of the two principal beneficiaries under the document, and its existence kept secret until the death of the deceased. The evidence of the defendants by which they sought to explain their conduct in this regard, I found implausible and unpersuasive,” Stanley J said in [61]. “The suspicions raised by the evidence as to the deceased’s knowledge and approval of the alleged 2014 will have not been dispelled by the defendants. They have not proved the document as the last will and testament of the deceased,” [65]. “I am satisfied the plaintiff has proved the 2003 will. There was no challenge to its validity. The sole basis of the defence to the application to prove the 2003 will was that it had been revoked by the alleged 2014 will. I am satisfied on the basis of the evidence of Ms Boylan that the 2003 will was duly executed,” his Honour said [66]. “In the circumstances I do not need to consider the plaintiff’s claims in equity seeking a proprietary estoppel or a common intention constructive trust in respect of the Nelson Avenue property,” [67]. Will of 2003 admitted, orders for submissions. Appearances unannounced.

38

Will construction, unresolved ambiguity voids gift to charity

www.gapublishing.com.au Wills Estates Monthly WEM 6.20

Diabetes charity wrong address voids gift in $27m estate Re Coghlan; Merriman v Attorney-General for the State of Victoria [2020] VSC 392. McMillan J. 26.6.20. “Charles Campbell Coghlan died on 26 March 2017. On 10 July 2017, probate of the deceased’s will dated 5 June 2013 was granted to the plaintiff. The deceased’s estate is valued at approximately $23,702,495,” McMillan J said [1], the gentleman having been a grazier, widowed, without children, having spent his life about Ballarat. “Clause 6(c) of the will bequeaths one third of the residue of the estate to ‘Diabetes Australia of 26 Arundal Street Glebe New South Wales’. There is, however, no entity that fits that name and address. Three entities exist that may have been the intended recipient of the deceased’s testamentary bounty, each of which are defendants to this proceeding: (a) the second defendant, Diabetes Australia (ACN 008 528 461) (‘Diabetes Australia’), is the entity named in the will; (b) the fourth defendant, Diabetes NSW (ACN 001 363 766) (‘Diabetes NSW’), operates from 26 Arundel Street, Glebe, NSW; or (c) the third defendant, Diabetes Australia – Victoria (ACN 005 239 510) (‘Diabetes Victoria’), is an entity with which the deceased had substantial contact throughout his life,” her Honour said [2]. The Attorney-General had communicated intention not to participate in the proceeding. “The plaintiff submits that the funds should be paid to the second defendant, as it is the entity named in the will. The plaintiff informed the Court that the second to fourth defendants agree to her submission,” [4]. The defendants had entered appearances only. “The Court informed the parties that it could not determine the proper construction of the deceased’s will on the basis of an agreement between the three defendant charities,” McMillan J said in [17]. The plaintiff had filed simple submissions, citing in aid Parkinson v Diabetes Australia [2011] NSWSC 1530 - “the Court noted that it did not consider that the decision in Parkinson was of any material assistance in resolving the proceeding”, and seeking further submissions, unmet, similarly the defendants. Her Honour traversed the facts of the charities, and detailed the construction exposition of Isaacs J in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 273–6. “The plaintiff’s primary submission is that the accurate use of the name Diabetes Australia in clause 6(c) of the will creates a presumption against any entity not in possession of that name. In regard to the submission, the plaintiff refers to the decisions of the House of Lords in National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children (‘National Society’) [1915] AC 207, and Parkinson, a decision of the New South Wales Supreme Court,” McMillan J said [30], and considered the speeches in National Society, noting Earl Loreburn, supported by Atkinson and Shaw LJJ, “…considered that the accurate use of the name of an individual or organisation generally creates a ‘presumption’ against any institution not in possession of that name”, McMillan J said in [32]. In [36], of Parkinson, “Bryson AJ considered that an ambiguity arose as to which entity the deceased intended to benefit, and referred to several English and Australian cases in which the use of a name has not itself been conclusive”, footnoting Charter v Charter (1874) LR 7 HL 364; Jones v Loader (Supreme Court of New South Wales,

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Will construction, unresolved ambiguity voids gift to charity

www.gapublishing.com.au Wills Estates Monthly WEM 6.20

Kearney J, 4 December 1984); Hulbert v Hulbert [2004] NSWSC 130; Re Evans, dec’d; Evans v Allot [1949] VicLawRp 31; [1950] VLR 60. “As observed by Earl Loreburn in National Society, and subsequently reflected in the decision of Bryson AJ in Parkinson, the ‘presumption’ is really a reflection of the principle that the Court’s role is to give effect to the deceased’s intentions as reflected in the terms of the will. Although Earl Loreburn and Lord Parmoor did not consider extrinsic evidence in National Society, their concession that the presumption is not absolute indicates that further enquiry will be permitted in some circumstances. Unless extrinsic evidence is sufficient to show that a deceased person did not actually mean what is said in a will, the Court is not entitled to re-write it. Neither National Society nor Parkinson involved an alternative recipient named or referred to in the will itself; in both cases the alternative was merely an entity with which the testator had some connection during his lifetime. It follows that the ‘presumption’ is of more limited assistance in circumstances where the will itself refers to one entity by name and a different entity by address, and otherwise provides no indication as to which of those entities the deceased intended to benefit. The ‘presumption’ in favour of a named entity is therefore not determinative of the proper construction of clause 6(c) of the will,” McMillan J said [37]. “Re Wedgwood [1914] 2 Ch 245 is not of assistance to the plaintiff, save that it is support for a general conclusion that where the deceased’s intention is otherwise clear, the erroneous use of an institution’s former address will not necessarily be fatal to a testamentary gift,” her Honour said in [38]. “There is also inconsistency between the plaintiff’s submission and the well-established principle, reflected in the observations of Kaye J in Re Edwards (dec’d) [1981] VicRp 76; [1981] VR 794, 797, that there exists ‘no canon of will construction which requires greater weight to be given to either a name or a description of an intended beneficiary’. In that case, his Honour quoted the following passage from the fifth edition of Williams on Wills: [Williams on Wills, 5th ed, 1980] “...where a description is correct and sufficient an incorrect name may be neglected. In cases where either the name alone or the description alone is sufficient to identify a subject, and they do not identify the same subject, then, according to the circumstances of the case, the description and not the name, or the name and not the description, may prevail. The name is in fact only a description, and the question is to determine which portion of the whole description is to prevail. A test often adopted by the court in such a case is to inquire whether the testator was in the circumstances more liable to err when he described the donee by name or when he attempted to point him out by some further adjunct; and the Court adopts that description which in each instance appears to be least open to error”. “There is no reason why an address contained in a will does not fall within the meaning of ‘description’ for these purposes. Accordingly, the inclusion of the address of Diabetes NSW in clause 6(c) of the will cannot be dismissed out of hand. The reference to the name of one entity and the address of another therefore gives rise to an ambiguity on the face of the will that must be resolved,” McMillan J said [40]. “In the event that the terms of the will are ambiguous or equivocal, the Court may have regard to extrinsic evidence to aid in its interpretation. Extrinsic evidence may be admissible at common law, pursuant to the ‘armchair principle’: Boyes v Cook (1880) 14 Ch D 53, 56 (James LJ); Perrin v Morgan [1943] AC 399, 420 (Lord Romer), or pursuant to s 36(1) of the Wills Act 1997 (Vic),” [41]. At [45] “In the event that the Court remains unable to ascertain the meaning of the deceased’s will, the relevant disposition is rendered void for uncertainty: GE Dal

40

Will construction, unresolved ambiguity voids gift to charity

www.gapublishing.com.au Wills Estates Monthly WEM 6.20

Pont and FK Mackie, Law of Succession (LexisNexis Butterworths, 2nd ed, 2017) 235 [8.46]. For a gift to be rendered void, it must be incapable of any clear meaning: In Re Mason; Mason v Robinson [1825] EngR 522; (1825) 2 Sim & St 295; 57 ER 359, 360 (Leach VC). As observed in Fell v Fell, the Court must avoid an interpretation that leads to intestacy, thus if a court can arrive at the meaning with a reasonable degree of certainty, the gift will not fail,” her Honour said [45]. “The only entity of which there is any material extrinsic evidence of the deceased’s knowledge and involvement is Diabetes Victoria. However, Diabetes Victoria is not referred to in the will at all. The Court cannot apply the armchair principle to re-write the deceased’s will in terms that are not reflected in the written document. There is no evidence before the Court from which it can determine which of Diabetes Australia or Diabetes NSW the deceased intended to benefit. As observed, the Court raised this issue with the plaintiff’s solicitors on two separate occasions. The plaintiff’s solicitors indicated that there was no further evidence of the deceased’s circumstances as at the date of the will,” [47]. “In its correspondence with the parties, the Court raised the possibility that the gift was best administered by way of administrative scheme. This would be the case if it were established that the gift was a gift for charitable purposes and that the mechanism for administering the gift is deficient. In those circumstances the Court could consider and, if appropriate, approve a scheme for the administration of the gift. The parties did not seek to amend the proceeding to seek such relief,” [49]. Held gift void for uncertainty, for further submissions, costs reserved. P: Mr J McComish ins Coulter Roache Lawyers. 1D: Victorian Government Solicitor. 2D: King & Wood Mallesons. 3D: Health Legal Pty Ltd. 4D: Hendersons Legal.

41

Wills Estates Monthly Cumulative File Index

www.gapublishing.com.au/wemfiles Wills Estates Monthly WEM 6.20

Click to open .PDF (at www.gapublishing.com.au/wemfiles) o Ademption, four situations where valid legacy may adeem o Administration, adjustment after asset sale o Administration, cy-près scheme o Administration, executors propose private ancillary fund o Administration, three stroke charities in cy-près scheme o Administration, whether gift on trust for charitable purposes o Charity, purpose dictates succession o Charity, whether institution is successor o Costs against bankruptcy trustee opposing family provision approval o Costs, charged against failed plaintiff's share of estate o Costs, ordered against tutor of failed 14yo's fp o Costs, removed executors to pay indemnity costs personally o Costs, security for o Costs, security, NY-resident executor ordered to pay o Costs, trustee’s bill subject to review in passing of accounts o Costs, ulterior purpose, recalcitrance warrants complete indemnity o Death, application for permission to swear death o Evidence, fallibility of human memory increases with passage of time o Evidence, pleaded issues requisite discovery o Evidence, privilege vests in trust not trustee personally o Executor, assent gives complete title o Executor, no evidence of assent to hold asset as trustee o Executor, not obliged to sue for property at own expense o Executor, office by representation precluded by survival of an instituted

executor o Executor, outside jurisdiction o Executor, recalcitrance exposes to costs personally o Executor, right to the body o Family provision costs may charge against failed beneficiary plaintiff's gift o Family provision costs, declared costs only, charged against gift o Family provision costs, executor refused recourse o Family provision costs, unaccepted offer attracts indemnity order o Family provision, $1.5m gift defeats son’s suit o Family provision, 67yo blind nephew ineligible o Family provision, Crisp order for widow o Family provision, ambition value not more than will gift o Family provision, an outline o Family provision, de facto eligibility o Family provision, de facto husband o Family provision, dependent o Family provision, domestic partner o Family provision, late claim refused o Family provision, limitation, 40 years too late o Family provision, limitation, principles to extend time for making claim o Family provision, no contracting out, Deed of Family Arrangement refused o Family provision, notional estate o Family provision, summary judgment for estate o Judicial advice over deed copy avails missing original

42

Wills Estates Monthly Cumulative File Index

www.gapublishing.com.au/wemfiles Wills Estates Monthly WEM 6.20

o Judicial advice, to executor to sue insurer declinature on “usual residence” exclusion

o Laches over 30 years defeats brother’s farm claim o PROBATE LIST GUIDELINES (v2).28.1.20 (NSW) o Probate, death bed instructions document not admitted o Probate, grant to earlier will after agreement o Probate, sibling defendants concealed alleged will until after death o Probate, suspicious circumstances o Solicitor, restraining practitioner o Testamentary capacity, dementia proofs taint later will o Trustee, appointment is personal in nature o Trusts, secret trust elements o Will construction 'vested interest' o Will construction 10 principles exposed by Isaacs J in Fell v Fell o Will construction of ‘home made’ will, intention paramount o Will construction, latent ambiguity in contingent gift o Will construction, unresolved ambiguity voids gift to charity o Will, copy admitted o Will, informal document, video o Will, informal, elements for proofs o Will, informal, must express testamentary intention o Will, rectification of misdescribed realty o Will, statutory will

43

i

INDEX TO CASES, STATUTES REFERENCES

AADCO Constructions Pty Ltd v Goudappel, 25Administration and Probate Act, 22–24Administration and Probate Act 1958 (Vic, 10Alan John Hyland v Laura Healy, 20Albany v Albany, 22Allianz Australia Insurance Ltd v Inglis, 29Amprimo v Wynn, 17, 24Attorney-General (Cth) v Breckler, 8Attorney-General Act, 3Australian Executor Trustees v Attorney-General (SA, 6Australian Executor Trustees v Ceduna District Health Services Inc, 6

BBail v Scott-Mackenzie, 25Ball v Newey, 16Barns v Barns, 25Bartlett v Coomber, 22Bathurst Regional Council v Local Government Financial Services Pty Ltd (No, 17Bayssari v Bazouni, 17Bell v Scott, 9Benny v Jones, 16Bezjak v Wyatt, 16–17Boyes v Cook, 40Briginshaw v Briginshaw, 21Butler v Morris, 15

CCalderbank, 35Campbell v Chabert-McKay, 18Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd, 29Carey v Robson (No, 12Cetojevic v Cetojevic, 14Charnock v Handley, 18Charter v Charter, 39Civil Procedure Act 2010 (Vic, 24Clarke v Clarke; Insurance Office of Australia Ltd, 29

Coates v National Trustees Executors and Agency Company Limited and Anor, 25Commissioner of Stamp Duties (Qld) v Livingston, 8Court v Hunt, 21Crisp v Burns Philp Trustee Co Ltd, 19, 21Cutting v Public Trustee for the Northern Territory (No, 22

DDaebritz v Gandy, 22Daley v Barton: Barton v Daley, 36De Winter v Johnstone, 15Dolan v Dolan, 36Dunning v Dunning, 29

EEasterbrook v Young, 25El-Zaouk v Draybi, 24Estate of Forbes v NSW, 6

FFamily Provision Act, 22–23, 25Farah Constructions v Say-Dee Pty Ltd, 25Fell v Fell, 39, 41Forsyth v Sinclair (No, 12Frizzo v Frizzo (No, 35Fysh v Page, 32

GGrundt v Great Boulder Proprietary Gold Mines Ltd, 31

HHampson v Hampson, 12Harkness v Harkness (No, 12Harris v Knight, 27Hicks v Mater Misericordiae Ltd, 3Hobhouse v Macarthur-Onslow, 20Holmes v Permanent Trustee Co of New South Wales, 25Hulbert v Hulbert, 40

ii

INDEX TO CASES, STATUTES REFERENCES

IIMO the Will and Estate of William James Milburn, 24In re Lucas; Sheard v Mellor, 6In Re Mason; Mason v Robinson, 41Interpretation of Legislation Act, 25

JJackson v Newns, 24Jones v Loader, 39

LLaw of Charity, 6Law of Succession, 8, 41Lieberman v Morris, 22Limitation Act, 31Lindsay Petroleum Company v Hurd, 31Livingston's, 8

MMarning v Staniforth, 16–17Marriage Act, 22McCann v Ward, 14McCormack v Stevens, 3–4McCosker v McCosker, 12Meagher Gummow and Lehane's Equity: Doctrines and Remedies, 32Melba Support Services Inc v Bell, 6Milillo v Konnecke, 21Munro v Lake, 17

NNational Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children, 39Neil v Nott, 15

OOfficial Receiver in Bankruptcy v Schultz, 8–9

PPage v Page, 17Parkinson v Diabetes Australia, 39–40Perrin v Morgan, 40Petrohilos v Hunter, 16Phillips v Roberts, 3Porteous v Rinehart, 8

Porthouse v Bridge, 17Prior v Kerrison, 21Public Trustee of Queensland v Rutledge & Ors, 3Public Trustee v Cerebral Palsy Association of Western Australia, 6

RRe Coulson, 6Re Edwards, 40Re Evans, dec'd; Evans v Allot, 40Re Faraker, 6Re Faraker; Faraker v Derell, 6Re Garris, 35Re Goodson, 5Re Lucas, 6Re McHenry, 6Re Prien, 35Re Rattle; O'Neil; v Equity Trustees Ltd, 24Re Thomson, 27Re Tyrie deceased (No, 3, 6Re Vernon's Will Trusts; Lloyd's Bank Ltd v Group 20 Hospital Management Committee, 5Re Wedgwood, 40Ridge v Rowdan, 20Roche v Roche & Anor, 37Romascu v Manolache, 20Russell v NSW Trustee and Guardian, 17

SSettled Land Act, 10Singer v Berghouse, 13Sir Moses Montefiore Jewish Home v Howell, 6Skinner v Frappell, 16–17Spata v Tumino, 16–17Stone v Stone, 15, 18Stratton v Simpson, 5Succession Act, 24, 34–36Succession Act 2006 (NSW, 16, 20Supreme Court (General Civil Procedure) Rules, 10Supreme Court (General Civil Procedure) Rules 2015 (Vic, 5Sydney Homeopathic Hospital v Turner, 5–6

TTaylor v Farrugia, 15Thompson v Bella-Lewis, 37

iii

INDEX TO CASES, STATUTES REFERENCES

Thompson v Palmer, 31Tobin v Ezekiel, 13, 16, 20, 37Trustee Act, 10, 28Trusts Act, 3, 29Tyrrell v Painton, 20

UUnderwood v Gaudron, 15

VValbe v Irlicht, 15Vaughan v Curran, 18Veall v Veall, 37Verzar v Verzar, 14–15Vigolo v Bostin, 13

WWagstaff v Wagstaff, 16Waltons Stores (Interstate) Ltd v Maher, 31Warren v McKnight, 24Wilkinson v Clerical Administrative and Related Employees Superannuation Pty Ltd, 8Williams v IS Industry Fund Pty Ltd, 29Wills Act, 22, 40Wolff v Deavin, 16–17, 24Worladge and Anor v Doddridge and Ors, 25