Re Estate Charell, deceased [2021] NSWSC 591

Supreme Court New South Wales

Medium Neutral Citation: Re Estate Charell, deceased [2021] NSWSC 591 Hearing dates: 27, 28 and 29 April 2021 Decision date: 26 May 2021 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: (1) The deceased's will dated 20 July 2005 was valid and, accordingly, the grant of probate made to the defendant in common form on 9 January 2018 should not be revoked but, rather, endorsed as a grant in solemn form. (2) The defendant should bear liability for the whole of the sum of $304,590.71 paid out for a discharge of the mortgage on the title to the Simpson Street property at the time of its sale on 10 May 2018, as a consequence of which she must reimburse the estate of the deceased the sum of $253,825.59 paid out of the estate's share of the sale proceeds. (3) Liability for the sum of $262,000 paid out of the proceeds of sale to obtain a discharge of an equitable charge protected by a caveat on the title to the property should be borne (as it has been) by the estate and the defendant in the same proportions as their ownership interests in the property. (4) The defendant is not required to account for the sum of $27,160.29 received in 2016 as an insurance payout for storm damage to the property. (5) The defendant's net rental receipts for letting out that part of the property formerly occupied by the deceased (in the total sum of $72,272.44) for the period between September 2016 and 10 May 2018 – that is, for the period before the deceased's death on 28 August 2017 as well as for the period after her death – should be accounted for in the same proportions as the ownership interests of the deceased and the defendant. (6) Questions about whether any (and, if so, what) formal orders are to be made for accounts to be taken are reserved pending discussions between the parties. (7) Further consideration of the plaintiff's application for a family provision order is reserved pending those discussions and supplementary submissions, if any. (8) Costs reserved. Catchwords: SUCCESSION — Contested probate — Testamentary capacity — Whether the deceased understood the extent of her estate of which she was disposing at the time she executed a will. SUCCESSION — Administration of estates — Whether defendant should bear liability for monies paid out for a discharge of mortgage and equitable charge on the title to the estate property — Whether defendant is required to account for monies received as an insurance payout for storm damage to property — Whether defendant is accountable for net rent receipts for letting out that part of the property formerly occupied by the deceased for the period before the deceased's death as well as for the period after her death. SUCCESSION — Family provision — Claim by adult daughter – Further consideration of plaintiff's claim reserved pending determination of size of deceased's estate. Legislation Cited: Guardianship Act 1987 NSW Guardianship Regulation 2000 NSW Powers of Attorney Act 2003 NSW Succession Act 2006 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549 Clay v Clay (2001) 202 CLR 410 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 Drivas v Jakopovic (2019) 100 NSWLR 505 Dunkel v Izsak (1984) 3 BPR 966 Forgeard v Shanahan (1994) 35 NSWLR 206 Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 Ramage v Waklaw (1988) 12 NSWLR 84 Ryan v Dries (2002) 10 BPR 19, 497 Taheri v Vitek (2014) 87 NSWLR 402 Texts Cited: B.A. Helmore, The Law of Real Property in NSW (Law Book Co, 2nd ed, 1966) Category: Principal judgment Parties: Plaintiff: Deborah Peta Losey Defendant: Wendy Therese Charell Representation: Counsel: Plaintiff: E Cohen Defendant: M Klooster