Gerstenmeier v Gerstenmeier [2024] NSWSC 712

Supreme Court New South Wales

Medium Neutral Citation: Gerstenmeier v Gerstenmeier [2024] NSWSC 712 Hearing dates: 24, 29, 31 May, 4 June 2024 Date of orders: 5 June 2024 Decision date: 05 June 2024 Jurisdiction: Equity - Succession & Probate List - Family Provision Before: Meek J Decision: Eventual payment of ordered lump sum noted. Notice of motion for enforcement otherwise dismissed. Costs order made by consent. Catchwords: SUCCESSION — Family provision — Family provision orders made in two separate claims on the deceased estate — In the current proceedings, orders provided for a period of 60 days for a lump sum legacy to be paid — The lump sum remained unpaid for a further period of approximately four weeks — D's solicitor informed P's solicitor that D was seeking refinancing — P's solicitor complained of undue delay and lack of precise information — P's solicitor sought relisting of the matter – Matter relisted and, over a number of listings, D's solicitor provided to the Court, only by oral assertions, updates lacking clarity regarding progress of refinancing – In absence of disclosure of direct communications with the bank, P's solicitors left in an invidious position of not being able to test the assertions about what was happening with the refinancing SUCCESSION — Family provision — Enforcement of family provision orders — Nature of family provision orders — Discussion of means of enforcement by administration suit, s 84 Probate and Administration Act 1898 (NSW) and discrete orders in relation to appointment of trustees in respect of specific estate property pursuant to s 66 Succession Act 2006 (NSW) — Ultimately lump sum and interest paid without necessity for appointment of trustee for sale EVIDENCE — Discussion of appropriate means of placing before the Court evidence in relation to refinancing — Risk that the Court will not be satisfied of important matters on the basis of pure assertion and may, in some circumstances, draw an inference unfavourable to the party where it appears that the party fails to testify or give evidence without adequate explanation SUCCESSION — Family provision — Compliance with court orders — In the absence of an empowering provision in the Will, statutory provision, consent or court order, an executor beneficiary is not at liberty to appropriate property in specie by payment of a legacy from alternate funds when the Court has ordered the payment to be made out of the estate property — If the executor beneficiary wishes to pay a legacy not from estate property as ordered, but from alternative available funds or funds to be raised by refinance, it is open to the executor to seek consent or apply to the Court for a substitution order pursuant to s 92 Succession Act 2006 (NSW) SUCCESSION — Permissible departures from administration according to a Will — Deeds of family arrangements — Discussion regarding executors and or beneficiaries funding an estate LEGAL PRACTITIONERS — Obligations of legal practitioners to make submissions of fact only based on evidence before the Court — Exceptions in cases where the relevant facts are agreed facts or are facts not genuinely in dispute or, in urgent circumstances, where the legal practitioner warrants to the Court that the asserted facts are trustworthy and in due course capable of being made good by admissible evidence LEGAL PRACTITIONERS — Obligations of legal practitioners — Obligations of legal practitioners in dealing with directions to pay funds — Obligations of legal practitioners dealing with one another, particularly in estate law SUBPOENAS — Subpoenas to give evidence — Directions made to identify a particular corporate officer with actual knowledge of the refinancing transaction, rather than to the corporation by its "proper officer" Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Profession Uniform Law (NSW) Probate and Administration Act 1898 (NSW) Succession Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Attorney General for New South Wales v Melco Resorts and Entertainment Ltd (2020) 102 NSWLR 47; [2020] NSWCA 40 Bailey v Bailey [2004] NSWSC 448 Bar-Mordecai v Rotman – The Estate of the Late Eveline Hillston (Supreme Court (NSW), Bryson J, 21 July 1998, unrep) Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Galea v Camilleri; The Estate of Patricia Camilleri [2023] NSWSC 206 Gillett v Nelson (No 3) [2014] NSWSC 1415 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jurak v Latham [2023] NSWSC 1318 Liprini v Liprini [2008] NSWSC 423 Mordecai v Mordecai (1988) 12 NSWLR 58 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45 Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647 Princess Ann of Hesse v Field (1963) 80 WN (NSW) 66 Re BPTC Ltd (in liq) (No 2) (1992) 29 NSWLR 713 Re Estate Buxton; Knoll v Buxton [2023] NSWSC 819 Re Franks [2021] QSC 134 Rochfort v Trade Practices Commission (1982) 153 CLR 134; [1982] HCA 66 Russo v Legal Services Commissioner [2016] NSWCA 306 Wentworth v Wentworth (Supreme Court (NSW), Young J, 4 September 1991, unrep) Xiang bht Cao v Tong [2021] NSWSC 44 Texts Cited: Dal Pont, G E, Law of Succession (3rd ed, 2021, LexisNexis) Category: Consequential orders Parties: Michael Ernest Gerstenmeier (Plaintiff / Applicant) Daniel Fritz Gerstenmeier (Defendant / Respondent) Representation: Solicitors: Artisan Legal (Plaintiff / Applicant) RMB Lawyers (Defendant / Respondent) File Number(s): 2023/50344