PRIVET v. VOVK [2003] NSWSC 1038

New South Wales Supreme Court

CITATION : PRIVET v. VOVK [2003] NSWSC 1038 HEARING DATE(S) : 07/11/2003 JUDGMENT DATE : 7 November 2003 JURISDICTION: EQUITY JUDGMENT OF : Bryson J at 1 DECISION : See [34] - direction that son make arrnagements for funeral.

CATCHWORDS : EXECUTORS and ADMINISTRATORS - rights powers and duties - burial - executor in disputed will claimed order establishing that he should arrange funeral and cremation - son of deceased disputed alleged will and contended that funeral should be Russian Orthodox with burial not cremation - on review of strength of plaintiff's claim based on will, alternatively recent marriage ceremony, the Court made an interlocutory direction for the son to make arrangements for funeral. LEGISLATION CITED : Family Law Act, 1975 Marriage Act 1961 (Cwth) CASES CITED : Smith v Tamworth City Council (1997)41 NSWLR 680 Burns & Anor v Richards (1993) 7 Butterworths Property Reports 15104 PARTIES : Felix Privet - Plaintiff Leonid Vovk - Defendant FILE NUMBER(S) : SC 5481/2003 COUNSEL : R.D. Wilson - Plaintiff B. Townsend - Defendant SOLICITORS : Turnbull Hill Lawyers - Plaintiff Giles Payne & Co. - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

FRIDAY 7 NOVEMBER 2003

5481/03 FELIX PRIVET v. LEONID VOVK – ESTATE OF LATE MARIA LENDVAI JUDGMENT 1 HIS HONOUR: Maria Lendvai, late of 46-48 Rossford Avenue, Jannali, died on 14 October 2003. At the end of her life she was a patient in the Ferndale Nursing Home at Mortdale and for some weeks before that she was a patient in Sutherland Hospital after suffering a stroke in April 2003. After suffering the stroke she was always in a dependent situation. 2 The remains of the deceased have not been disposed of by burial or cremation and are in the keeping of a funeral director. The plaintiff, Felix Privet, claims to be the executor appointed under a will of the deceased made on 22 February 2002 and asks the court for a declaration that he is at liberty to proceed to the cremation of the body of the deceased in accordance with her wishes as set out in paragraph 8 of that will. The plaintiff's claim is in substance, although not in the form of the summons by which he approaches to the court, ancillary to an overall claim that he should be granted probate of that document and as executor should have responsibility for administration of her estate. If not entitled to probate as executor he would claim to be entitled to administration as the husband of the deceased, having gone through a marriage ceremony with her on 13 June 2003 while she was a patient in Sutherland Hospital. 3 The defendant is the son of the deceased. He was not appointed executor of the deceased under any known testamentary paper, but he is a beneficiary for a substantial amount according to the terms of the document of 22 February 2002, and he was residuary legatee of the earlier testamentary document of 2 June 1991, now exhibit B, which appointed Mr John Miller and Mr Michael John Smith to be executors; Mr John Miller should be taken to be identical with Mr John Meller, who has given evidence in the application before me. If those persons did not apply for probate of the will dated 2 June 1991, the defendant, as the son of the deceased and principal beneficiary, would have standing to apply for Letters of Administration of that document. 4 To date (and relatively little time has passed) the persons appointed under the will of 2 June 1991 have not put forward claims that it ought to be admitted to probate, and in the absence of any other claimant the defendant, as the closest blood relative of the deceased, is an appropriate person to put forward the contrary position to that which the plaintiff contends for, and may well be an appropriate party in the contemplated probate litigation. 5 The present proceedings, notwithstanding their form, are essentially interlocutory, and any declaration or direction that I make will have the effect of an interlocutory direction relating to the administration of the estate of the deceased pending a decision of the court as to grant of probate or administration of her estate. A decision on the grant of representation could only be reached after elaborate consideration of issues. Involved in that consideration would be a decision on the validity of the marriage celebrated or purportedly celebrated on 13 June 2003. Both the question whether probate should be granted and of what document and the question whether the marriage was valid are questions which could only be settled satisfactorily by a formal process leading to a judgment having effect in rem so as to bind the whole world. The present hasty proceedings are an altogether unsatisfactory vehicle for coming to a conclusion which would finally bind either the world at large or these parties to any conclusion made in it, and I do not attempt to do so. 6 The proceedings were commenced on 28 October 2003. The parties first came before me on 30 October and I conducted the proceedings with as much expedition as could well be arranged, as I am of the view that it is the court's duty in the public interest to see to the decent disposal of human remains and to do so as early as may be possible, so as to avoid or minimise scandal and indecency associated with delay. 7 I propose to address the question whether I should give an interlocutory direction generally to the effect of the declaration claimed on the basis on which the Court usually approaches interlocutory applications for orders which will affect, even though only for the interim, the rights of parties, that is, by addressing the nature and strength of the plaintiff's case and the balance of convenience. 8 The evidence read before me makes it plain that the admissibility to probate of the document dated 22 February 2002 is reasonably open to dispute. There is no evidence dealing in detail or at all with the manner in which the document was brought into being, the circumstances of its drafting and preparation or the giving of instructions by the deceased for its preparation, nor is there evidence of its being read by her or read over to her or of her otherwise being appropriately acquainted with its contents. The evidence about its execution is quite bare. It was given by Cecilie Farkas, whose evidence is that she is a very long time associate of the deceased; she is roughly a contemporary of the deceased and has, as her evidence would show, known her for over 50 years. However her relevant evidence deals only with the circumstances of execution and attestation of the document. 9 The association of the plaintiff with the preparation and execution of the document, having regard to very large benefits which it confers on him, itself calls for careful scrutiny of the document before it is accepted. The requirement for careful scrutiny would be enhanced if evidence showed that he himself prepared or had a significant part in the preparation of the document, whether as to choice of language or as to its being typed out; that is a subject on which his evidence does not embark. Internal material in the document, particularly when compared with the will of 2 June 1991, provides further indications of the need for scrutiny. At many points the document uses language which suggests professional drafting. However these usually echo expressions in the earlier document. At other points the document shows preparation with considerable lack of facility, and this points away from availability of professional assistance, a striking example being the appointment of "Patrick Timbs & Company" as an alternative executor and trustee. The appointment of a firm rather than a named individual is a blunder of which professional persons would be unlikely to be capable. There are also misspellings here and there, overtypings and alterations and infelicities in enumeration which point against professional preparation. 10 There are further circumstances which indicate that the document is reasonably open to challenge. The principal matter referred to by the defendant's counsel in this context was the conferral on the plaintiff of large benefits, as matters turn out the greater part, by a considerable degree, in value of the assets, on the basis of what he says is a relatively short relationship after an earlier acquaintance, the relationship beginning some time in 2001 and being a year or so in duration by the time of the date which the document bears. The plaintiff's evidence is not at all clear about what the relationship was, and there are considerable improbabilities against the deceased having decided, on the basis of a relationship formed so late in life (and she was even then about 80 years of age), against conferring large benefits on her son with whom she had a longstanding and good relationship, who in his turn has descendants of his own with whom she had a good relationship, and for whom the experiences of her earlier life gave her even stronger than usual motivations for holding high regard. 11 Other circumstances which indicate the need for scrutiny of the document include that the plaintiff and his relationship with the deceased were not known to a number of associates of the deceased who, as their evidence prima facie shows, were in quite close and frequent contact with her and were likely to be aware of a close personal relationship with the plaintiff of such intensity as to move her to leave him most of her property. The defendant's counsel also pointed to a number of other circumstances, relating for example to the display of photographs in the deceased's dwelling and to statements attributed to her by witnesses about whether she ever would remarry, which also have a part, although a less prominent part, in the foreshadowed challenge to the document. 12 Provisions of the document relating to the deceased's wish for the disposition of her remains have had considerable attention during the hearing. In my understanding of the law wishes expressed by a deceased person, whether in a testamentary document or otherwise, are not binding on the persons on whom the duty falls of disposing of the remains and will not be enforced by a court. The following passage appears to show that the plaintiff's claim that as executor he is entitled to conduct arrangements for disposition of the remains is justified: If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased's body, the person named as executor has the right to do so. 13 This passage is taken from the judgment of Mr Justice Young in Smith v Tamworth City Council (1997)41 NSWLR 680 at 693 and is the opening passage in the table of conclusions which his Honour drew after a survey of the relatively modest stock of case law and judicial experience on this subject. In my understanding the case law supports the view that if the plaintiff does not establish that he is in a position to make decisions about the funeral and disposition of the deceased's remains, a person with a claim to administration would do so; this is alluded to in the fourth of Justice Young's propositions at page 694 and is supported by other judicial decisions, including Burns & Anor v Richards (1993) 7 Butterworths Property Reports 15104 (Justice Cohen). Of course involved in the authority recognized by the law of an executor to make such decisions is a lack of legal effect of statements by the deceased about wishes as to funeral arrangements and disposition of remains. 14 In the document of 22 February 2002 paragraph 8 says: It is my wish that my funeral be a christian service of a most simple nature and that I be cremated, and the ashes be kept by my future husband Felix Privet to be taken to Switzerland, where I always wanted to live, and placed in his family's vault. 15 The first part of this paragraph echoes the opening words of clause 5 in the will of 2 June 1991, including the wish for cremation; in that case the wish was: ...that I be cremated and the ashes be given to my son, the said Leonid Vovk, and placed in my father's grave in the USSR. 16 As it happens the deceased's wish that her remains be cremated, confirmed as it is by the terms of the earlier will, is one of the relatively few facts of this case which are open to little doubt. 17 The defendant has disputed the appropriate means of disposition of the remains by pointing, through evidence of his own and of several other persons, to the practice of the Russian Orthodox Church against cremation. As it is not within the power of the court to control the means of disposition I will not give a decision on associated issues, that is, whether the deceased in truth was all her life an adherent to the Russian Orthodox Church, whether she became an adherent of the Roman Catholic Church, or whether adherence to either or a change has any implication for understanding whether she truly wished for her remains to be cremated. The evidence before me about her religious adherence does not suggest an outcome in any clear way. 18 My view is that the plaintiff's prospects of obtaining probate of the document of 22 February 2002 are not at all strong and do not have much weight in support of his claim that the Court should recognize that control of the funeral and of arrangements for disposition of the remains are in his hands. Alternatively he would claim to be entitled to control those matters as the widower of the deceased. This proposition depends on the validity of the marriage ceremony performed on 13 June 2003. If the document of 22 February 2002 in truth was the last will of the deceased, the marriage would not, in my opinion, have revoked it because it contains a number of expressions which look forward to a marriage with the plaintiff and with fair certainty should be held to bring the document, if it is a will, within the provisions of subss 15(3) and (4) of the Wills Probate and Administration Act, 1898 and within the exception for which they provide from revocation by later marriage. If the document failed, however, it would be necessary to address the legal effects of the marriage. A valid marriage would revoke the will dated 2 June 1991, which is not expressed to be made in contemplation of any marriage. 19 I propose to proceed on the assumption, which is far from having been established, that where the question whether a marriage was effectual or was void arises in the course of probate proceedings, the court has jurisdiction to determine it. My view that this is open to doubt arises from provisions of the Family Law Act, 1975 (Cwth) which in the definition of matrimonial cause in subsection 4(1) includes: (b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise;