Estate of Maria Zbrozek; Katarzyna (aka Kasia) Duszyk v Charles Emmanuel Morgan - Interim Administrator of the Estate of the late Maria Zbrozek [2020] NSWSC 1591

Supreme Court New South Wales

Medium Neutral Citation: Estate of Maria Zbrozek; Katarzyna (aka Kasia) Duszyk v Charles Emmanuel Morgan - Interim Administrator of the Estate of the late Maria Zbrozek [2020] NSWSC 1591 Hearing dates: 16, 17 and 22 September 2020 Date of orders: 20 October 2020 Decision date: 16 October 2020 Jurisdiction: Equity - Probate List Before: Rein J Decision: [94]-[95] Catchwords: SUCCESSION — Probate and administration — where the Plaintiffs in the Probate Proceedings propound a 2014 informal will to supersede a valid 1991 will of the deceased and the First Defendant propounds a 2013 informal will. The First Defendant is also the Plaintiff in a separate proceedings ("the Trust Proceedings") in which she asserts a claim to the entire Estate. CIVIL PROCEDURE — Parties — Removal of parties – Joinder of parties – Notices of Motion relating to (1) withdrawal of the First Plaintiff who is a solicitor (who has acted for the Second Plaintiff as well as for other potential beneficiaries) and who is not a beneficiary under either will; (2) joinder of four potential beneficiaries resident in Poland ("the Four Polish Beneficiaries"); (3) whether the Four Polish Beneficiaries should be required to provide security and in what form; and (4) who should be the defendant(s) in the Trust Proceedings. Held: (1) the First Plaintiff be removed, but subject to the same liabilities and entitled to same rights with respect to the costs of the proceedings: [94]; (2) the Four Polish Beneficiaries be joined as cross defendants to the Probate Proceedings: [94]; (3) on the First Defendant's claim in the Probate Proceedings the Four Polish Beneficiaries are entitled to a share in the residue of the Estate. Any amount due to the Four Polish Beneficiaries from the Estate to be subject to a charge in favour of the First Defendant reflecting costs incurred by the First Defendant in the event that the Four Polish Beneficiaries are held liable to the Plaintiff for costs. The First Defendant in the Probate Proceedings/ Plaintiff in the Trust Proceedings cannot rely on the Trust Proceedings to require security from the Four Polish Beneficiaries: see [93]; (4) Charles Emmanuel Morgan – Interim Administrator of the Estate to be removed as Defendant in the Trust Proceedings and the Second Plaintiff in the Probate Proceedings and the Four Polish Beneficiaries to be made defendants in the Trust Proceedings. Order that the proceedings should continue in the absence of a representative of the Estate: [95]. SUCCESSION — Contested probate —Notice of Motion relating to the ability of the Second Plaintiff and the Four Polish Beneficiaries to raise issues in respect of the 2013 Will. Held: the Second Plaintiff and the Four Polish Beneficiaries are entitled to file a cross claim in the draft form sought by the Second Plaintiff: [83] and [86]. CIVIL PROCEDURE — Pleadings — Amendment – By way of Notice of Motion Second Plaintiff sought to file Further Amended Statement of Claim which seeks alternative declaratory relief. Held: Second Plaintiff granted leave to file a Further Amended Statement of Claim: [94]. Legislation Cited: Civil Procedure Act 2005 (NSW) Probate and Administration Act 1898 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109; [2004] HCA 7 Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617 In re Devoy [1943] St R Qd 137 In the Will of William Henry Keepkie, Deceased [1960] Qd R 436 Leitch v Dore [2005] QSC 069 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Milillo v Konnecke [2009] NSWCA 109 Osborne v Smith (1960) 105 CLR 153 Poulos v Pellicer [2004] NSWSC 504 Ramage v Waclaw (1988) 12 NSWLR 84 Re the Estate of van den Berg [1999] ACTSC 82 Stainton v The Carron Company (1854) 18 Beav 146; 52 ER 58 The Estate of Colleen McCullough [2018] NSWSC 1126 Thompson v Bella-Lewis [1997] 1 Qd R 429 Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 Whiteley v Klune: Re the Estate of Brett Whiteley Unreported Powell J, 19 March 1993 Texts Cited: Jacobs' Law of Trusts in Australia (Heydon and Leeming, Butterworths, 8th ed, 2016) Mason and Handler, Succession Law and Practice (NSW) (Lexis Nexis, looseleaf) Category: Principal judgment Parties: Pawel Knap (First Plaintiff in the Probate Proceedings) Ibdah Zabalawi (Second Plaintiff in the Probate Proceedings) Katarzyna (aka Kasia) Duszyk (First Defendant in the Probate Proceedings) Krysia Walker (Second Defendant in the Probate Proceedings)