Prince v Argue [2002] NSWSC 1217

New South Wales Supreme Court

CITATION : Prince v Argue [2002] NSWSC 1217 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2130/02; 4627/99; 5219/99; 5220/99; 5221/99 HEARING DATE(S) : 4-7 November 2002; 27/11/02 JUDGMENT DATE : 20 December 2002

Janet Irene Prince & 2 ors v Janet Irene Prince - Estate of Stanley Victor Allen & anor Janet Irene Prince & 2 0rs v June Irene Argue & 3 Ors PARTIES : Janet Irene Prince & 2 ors v June Irene Argue & 3 Ors Janet Irene Argue v June Irene Argue John William Argue v June Irene Argue - Estate of Irene Vonstella Allen JUDGMENT OF : Acting Justice Macready at 1

COUNSEL : Miss J.C. Pentelow for plaintiffs Mr R.D. Wilson for defendants SOLICITORS : Marsdens for plaintiffs Leo Morrison for defendants CATCHWORDS : Succession - testamentary capacity - mutual wills - no arrangement not to revoke wills. - Family Provision - whether part of household of deceased - dependency. - Family Provision - claim by children of deceased - out of time - insufficient explanation for delay - leave denied. DECISION : Paragraph 96

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Acting Justice Macready

Friday 20 December 2002

4627/99 Janet Irene Prince & 2 Ors v June Irene Argue & 3 Ors 5219/99 Janet Irene Prince & 2 Ors v June Irene Argue & 2 Ors 5220/99 Janet Irene Argue v June Irene Argue 5221/99 John William Argue v June Irene Argue – Estate of Irene Vonstella Allen 2130/02 Janet Irene Prince & 2 Ors v Janet Irene Prince – Estate of Stanley Victor Allen

JUDGMENT 1 His Honour: This is the hearing of five matters which concern the estate of the late Stanley Victor Allen and the estate of the late Irene Vonstellar Allen. Proceedings 4627/99 is one in which Janet Irene Prince and her two brothers, who are the children of the first marriage of the late Stanley Victor Allen, proceed by way of an amended statement of claim. The defendants are the three children of the first marriage of the late Irene Vonstellar Allen. Stanley and Irene, as their family knew them and as they were referred to in the evidence, were married in 1970. At times in the evidence Irene was also called Eileen. Stanley died on 10 December 1997 and Irene died on 23 March 1999 without having had children of their marriage. 2 In proceedings 4627 of 1999 the plaintiffs make a number of claims. The principal one is a claim that there was an agreement between Stanley and Irene for mutual wills which were made in 1970. The wills provided in general terms for each to leave all their property to the other and if the other had died then the property was to be divided between the six children from the former marriages of Irene and Stanley. As can be seen Stanley predeceased Irene. After his death Irene's will which had been made in 1970 was revoked when she made a fresh will under which she left the whole of her estate to her own three children by her first marriage. 3 In proceedings 4267 of 1999 the plaintiffs also made claims that Irene lacked testamentary capacity when she made her later will and that the signature on the will was not her signature. 4 Proceedings number 5219 of 1999 are proceedings commenced by Janet Irene Prince and her brothers to restrain the distribution of assets in the estate of Irene. There is no substantive claim presently on foot in the proceedings. On 24 December 1999 upon the plaintiffs giving the usual undertaking as to damages Simos J restrained the defendants from dealing with the funds then held by their solicitors. 5 Proceedings number 5220 of 1999 is a claim by Janet Irene Prince for provision under the Family Provision Act out of the estate or notional estate of Irene Vonstellar Allen. The proceedings were commenced on 23 December 1999 within time. 6 Proceedings number 5221 of 1999 is a claim by John William Allen for provision under the Family Provision Act out of the estate of the late Irene Vonstellar Allen. The proceedings were commenced within time. 7 Proceedings number 2130 of 2002 are claims by Janet Irene Prince, Robert John Allen, and John William Allen, the children of Stanley for provision under the Family Provision Act out of his estate. Proceedings were commenced on 5 April 2002 and are out of time. 8 I have ordered that all proceedings be heard together and the evidence in one be evidence in the others. The estate of the late Stanley Victor Allen 9 The late Stanley Victor Allen died on 10 December 1997. A grant of letters of administration has been made for the purposes of the plaintiffs making application under the Family Provision Act 1982. His will was made on 12 November 1970 and as I have indicated under that will he left the whole of his estate to Irene if she survived him and in default amongst the six children by their first marriages. He appointed his daughter Janet Prince and his stepdaughter June Irene Argue as executors and trustees of his will. 10 The evidence is that the deceased and Irene owned a property in which they lived and on the deceased's death that house passed by survivorship. One of the executors June Irene Argue has sworn an affidavit saying that she had no knowledge of the assets in the estate and did not even know that she was appointed executor until these proceedings were commenced. Although there is some evidence to suggest that prior to his death the deceased had some other savings there is no evidence that indicates that there are at present any assets in the estate of the deceased. There is nothing to suggest that his children may have received such assets and any other assets which he had, such as what was left in his bank account, were passed over to Irene. She subsequently benefited some of her children by giving them some of these funds which she received under the will or by survivorship. The estate of the late Irene Vonstellar Allen 11 Irene died on 24 March 1999 and a grant of probate of the last will was made to her daughter June Irene Argue. Under her will made 2 December 1998 she left the whole of her estate to her three children by her first marriage. 12 Prior to her death Irene sold the house in which she had lived with Stanley for many years. When she did so she distributed $10,000 to each of the six children. Her estate at the date of the death comprised some investments totalling $165,000.44. There presently remains the sum of $74,673.85, which is held in an account by solicitors pending the resolution of these proceedings. There was evidence of a further sum of interest amounting to $4999 which does not seem to have been accounted for by the executors. There have been distributions of $24,155 paid to each of the three beneficiaries on 8 October 1999 and $5000 paid to each of the three beneficiaries on 27 April 1999. These distributions substantially account for the difference in the estate between the date of death and the present time. 13 Substantial costs have been incurred in these proceedings. The estimates of costs of the defendants, and by that I mean the children of Irene, put their costs at the end of a three-day hearing at approximately $40,000. The plaintiffs' costs are estimated, on the basis of a four-day hearing, at $63,200. The family history 14 Before dealing with the individual proceedings it is probably useful to have a short background of the family history particularly as some of the plaintiffs in the Family Provision Act proceedings base their claims upon the fact that they were part of the household of Irene. 15 Irene was born in 1919 and was thus eighty years old at the date of her death. Stanley was born in 1924 and was 73 at the date of his death. Stanley married in 1949 and he and his first wife lived at Lawrence Hargrave Drive, Coalcliff in a house registered in Stanley's name. In 1957 they separated and Stanley continued to live at the Coalcliff house with his daughter Janet and his son John. 16 At that time the second plaintiff Robert, the eldest child, went to live with his mother at Parramatta. In 1959 Irene and her husband separated. She and Stanley met in 1961. In January 1962 Irene purchased a property at 20 Hemsley Place, Coledale for the sum of 200 pounds. 17 Between 1963 and 1966 some evidence suggests that John lived with Stanley and Irene at her home at 20 Hemsley Place. Between 1963 and 1965 it is also suggested that Janet also lived there until she left and went to live with her mother at Newcastle. In October or November 1969 Stanley and Irene purchased a property at 10 Northcote Street Coledale for the sum of $8000. They moved to the property and the third plaintiff John also lived with them at the property. 18 Stanley and Irene married on 1 May 1970. Irene was then working as a cook at the Wollongong Workers Club and Stanley was a coalminer. On 3 April 1970 Irene sold her place Hemsley Place for $7,000 and took a mortgage back from the purchasers as she left $6,300 outstanding on mortgage. 19 On 12 November 1970 Stanley and Irene signed their wills to which I have already referred. Early in 1970 the third plaintiff John who was then 16 moved to Parramatta to take up an apprenticeship and lived with his mother. In 1971 the mortgage on Northcote Street was discharged. In 1972 Stanley sold his property at Lawrence Hargrave Drive, Coalcliff to the first plaintiff Janet and her husband for a price of $7500. 20 In 1977 Stanley retired from coal mining at the age of 53 years. Stanley died on 10 December 1997. Following his death Irene went to live with the second and third defendants. Early in 1998 arrangements were made to transfer any money in the deceased's bank to Irene. In May 1998 Irene went to Queensland for about three months and moved in with first defendant June. She had previously in March sold the property at Northcote Street and received $236,207.49, which was deposited, in her account. 21 In November 1998 Irene went on a trip to Norfolk Island and then returned to live in Queensland with the first defendant June Argue. It was on 2 December 1998 that Irene made her last will and testament by which she revoked her 1970 will. In February 1999 Irene was admitted to a nursing home in Caloundra and she died on 24 March 1999. The claims in proceedings 4627 of 1999 22 In paragraph 14 of the amended statement of claim it was alleged that the signature on the second will purporting to be the signature of the deceased was not the signature of the deceased. The plaintiffs called no evidence suggesting this was the case. Accordingly there is no basis for setting aside the grant of probate on this ground.