New South Wales Supreme Court CITATION : Kyros v Stavrakis [2009] NSWSC 163 HEARING DATE(S) : 02/03/09 JUDGMENT DATE : 2 March 2009 JURISDICTION : Equity JUDGMENT OF : White J EX TEMPORE JUDGMENT DATE : 2 March 2009 DECISION : Refer to paras 32, 33, 38-40 of judgment. CATCHWORDS : SUCCESSION - wills, probate and administration - probate caveat placed over deceased estate such that no grant could be made without prior notice to caveator - caveator did not challenge validity of will - order that caveat cease to be in force Family Provision Act 1982 (NSW) LEGISLATION CITED : Probate and Administration Act 1898 (NSW) Civil Procedure Act 2005 (NSW) TEXTS CITED : Mason & Handler, Succession Law and Practice New South Wales James Kyros PARTIES : v Mary Stavrakis FILE NUMBER(S) : SC 1700/09 COUNSEL : Plaintiff: A G Todd Defendant: G Thomas SOLICITORS : Plaintiff: Nicholas Panayi Angelos Defendant: Levitt Robinson Solicitors IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST WHITE J Monday, 2 March 2009 1700/09 James Kyros v Mary Stavrakis JUDGMENT 1 HIS HONOUR: This application relates to the will of Helen Theophanous who died on 22 August 2008. 2 The defendant, Mary Stavrakis, is the daughter of the deceased. 3 By the document expressed to be the last will and testament of the deceased dated 6 November 2007, the defendant and the plaintiff, her son Mr Kyros, were appointed as executors and trustees of her will. 4 On 20 September 2008 a notice was published of the intention of both the plaintiff and the defendant to apply for probate. 5 It appears that by 27 October 2008 the defendant was considering challenging the will. 6 On that day, the solicitors currently acting for the plaintiff, who at the time were acting for both parties, wrote to the defendant. They referred to the fact that an application for probate was ready to be lodged, and recorded that the defendant had indicated that she was considering challenging the will. They advised that if that was her intention, consideration should be given to her renouncing her executorship. They suggested that she obtain independent legal advice. 7 The defendant retained Levitt Robinson Solicitors. 8 On 27 November 2008 the plaintiff's solicitors, Nicholas Angelos & Co, wrote to Levitt Robinson. They said: " If [the defendant] intends to remove herself from her Executorial capacity and does not wish to apply for Probate albeit for the purpose of making an FPA claim as intimated, she should formally advise us of such decision ... and permit the co-Executor to proceed to prove the Will and Administer the Estate. It is improper for a co-Executor to delay the grant of Probate in circumstances where there is an apparent refusal to participate in the process and fails to remove herself from the process of obtaining Probate. Your client has a simple choice to make, either remove herself from her Executorial role and permit the co-Executor to proceed or to join in the application for grant of Probate. " 9 They asked for an urgent response as to the defendant's position. 10 On 10 December 2008 the plaintiff issued citation to the defendant to take probate. After some delays in Levitt Robinson obtaining instructions as to whether they should accept service, the citation was personally served on the defendant in early February. 11 On 16 February 2009 Levitt Robinson served the following documents on Nicholas Angelos & Co. The first was a caveat demanding that no grant be made in the estate of Helen Theophanous without prior notice to the defendant. The second document was a renunciation of probate. The third was a summons in proceedings 1527 of 2009 in which the defendant, as plaintiff, seeks an order for provision for her maintenance and advancement in life pursuant to s 7 of the Family Provision Act 1982 (NSW) out of the estate or notional estate of the deceased. 12 The form of caveat lodged by the defendant operates during its currency to preclude the making of a grant without notice to the caveator. It is in the form of a general caveat which is appropriate where the caveator seeks to raise a ground of invalidity of the Will other than want of due execution. (See Mason & Handler, Succession Law and Practice New South Wales at [1677.3].) 13 Nicholas Angelos & Co wrote to Levitt Robinson on 25 and 26 February 2009 noting that Levitt Robinson had advised in correspondence in December 2008 that the defendant was not challenging the validity or terms of the will. They said that as the defendant had renounced probate, the plaintiff, as the sole remaining executor, was entitled to a grant where there was no challenge to the validity or terms of the will. That would expedite the administration of the estate and the conduct of the proceedings under the Family Provision Act. 14 Levitt Robinson repeated on a number of occasions that the defendant does not challenge the validity or terms of the will. Rather, her challenge is as to whether adequate provision has been made for her. Levitt Robinson said that the defendant had lodged the caveat: " ... to protect her interest upon renouncing her role as one of the two executors. Your client can proceed to obtain probate for the purposes of a Family Provision Act claim pursuant to s 41A and under the Probate and Administration Act 1898". They said that: " Please advise as soon as possible whether your client will in fact obtain Probate of the Will of the deceased pursuant to s 41 A of the Act. Upon receiving your client's assurance that you would in fact make an application pursuant to s 41 A our client will withdraw the caveat lodged by her with the Court. " 15 Section 41A of the Probate and Administration Act provides " 41A Probate or administration for purpose of Family Provision Act 1982 (1) The Court shall have jurisdiction to grant administration in respect of a deceased person in order to permit an application to be made under the Family Provision Act 1982 where it is satisfied that it is proper to make the grant, whether or not the deceased person left property in New South Wales. (2) A grant of administration made as referred to in subsection (1) shall be for the purposes only of making an application under the Family Provision Act 1982. (3) The Court may grant administration in respect of a deceased person as referred to in subsection (1) to any person who it is satisfied is an eligible person within the meaning of the Family Provision Act 1982 or to any person who it is satisfied intends to make application under that Act on behalf of such an eligible person. " 16 It may be observed that the grant of administration under s 41A is made only for the purposes of the making of an application under the Family Provision Act. Such a grant would not deal with the requirements for the administration of the estate which go beyond dealing with the application under the Family Provision Act. 17 On 27 February 2009 the plaintiff applied by summons for an order that the caveat cease to be in force. 18 I made orders for short service and the matter is returned before me this afternoon. 19 The defendant would be entitled to an opportunity to adduce evidence in relation to the plaintiff's claim if it appeared that there was an arguable basis for the lodgment of the caveat. 20 The present application is made under Pt 78 r 69(4)(b) of the Supreme Court Rules 1970 (NSW). That rule provides that: " (4) Where in respect of the caveat, or any of the caveats, the Court considers that the evidence does not show: ... (b) some matter occasioning doubt as to whether the grant ought to be made, the Court may order that that caveat cease to be in force in respect of the intended application. " 21 It is quite clear from the correspondence that the defendant does not challenge the validity of the will. She has renounced probate for herself and no basis has been indicated which would provide a legitimate reason for the lodgment of the caveat. 22 Counsel for the defendant submitted that the defendant was justified in lodging the caveat because by renouncing her position as executrix she disentitled herself from obtaining any benefit under the will. 23 The basis for that submission, as I understood it, is that the will provides: " In the event of my daughter, the said Mary Stavrakis renouncing her interest and entitlement under the trust of this my Will I give devise and bequeath the legacies and share of my Estate to which she would otherwise have been entitled to my grandchildren from my said daughter namely ... holding as tenants in common in equal shares. " 24 The reference to the defendant's interest and entitlement under the trust of the will would appear to me to be a reference to the bequests made to the defendant of moneys in any bank account, a pecuniary legacy and a gift of residue. But even if the will has the construction for which counsel for the defendant contended, it would make no difference to whether the document of which probate is intended to be sought is the last will and testament of the deceased and is valid. 25 Counsel also referred to various matters which, as I understood it, were said to show why the defendant has a meritorious claim for provision of the estate pursuant to the Family Provision Act. 26 It is unnecessary to consider the merits of such a claim. That is wholly irrelevant to the present question. 27 The grant of probate to the defendant will not in any way impede the making of such a claim. 28 Other matters were raised as to the personal circumstances of the defendant, which are wholly irrelevant to the issue. 29 It appears to me that the position taken by the defendant, or at least the position as expressed by her legal representatives, is misconceived. 30 In those circumstances it is appropriate that the summons be dealt with today. 31 In that respect it is relevant that the first return date for the Family Provision Act proceeding is tomorrow. 32 For these reasons, I order that probate caveat filed on 16 February 2009 by Mary Stavrakis in the estate of Helen Theophanous cease to be in force. 33 I order that the defendant pay the plaintiff's costs of the proceedings. 34 The question also arises as to whether any order ought to be made in respect of the defendant's legal practitioners as to costs. 35 If the present misconceived action has been brought about solely as a result of error on the part of the defendant's legal practitioners, it is not obvious why such an error might not amount to serious negligence or serious incompetence or otherwise come within the terms of s 99(1) of the Civil Procedure Act. 36 In those circumstances it may be appropriate that the defendant not herself be charged any costs of defending these proceedings and she may be entitled to an order indemnifying her against costs she is liable to pay to the plaintiff. 37 The legal practitioner or practitioners concerned are entitled to a reasonable opportunity to be heard before any order is made under s 99. 38 Pursuant to s 99(4), I direct that notice be given to the defendant that the Court is considering whether an order ought be made that any costs in these proceedings as between the defendant and her solicitors or counsel, be disallowed, and/or that a legal practitioner retained by her indemnify her in respect of the costs payable by her to the plaintiff in these proceedings. 39 I direct that such notice be given in writing within 14 days. 40 I give notice to the defendant's solicitors and counsel that I am considering making such orders pursuant to s 99 of the Civil Procedure Act so that they may adduce such evidence and make such submissions as they may be advised in relation to that application. 41 I will stand the matter over to a convenient date about four weeks hence to consider that matter. 42 It may be that it will be necessary to stand that matter over until the determination of the Family Provision Act proceedings if any question arises which might involve a waiver of client legal privilege or legal professional privilege. That can be dealt with in due course. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.