Speer v Willis [2013] NSWSC 886

Supreme Court New South Wales

Medium Neutral Citation: Speer v Willis [2013] NSWSC 886 Hearing dates: 01/07/2013 Decision date: 01 July 2013 Jurisdiction: Equity Division - Probate List Before: McDougall J Decision: Order defendant to pay balance of plaintiff's legacy with interest Catchwords: WILLS & ESTATES - legacies - executor fails to pay full amount of legacy - no question of principle Category: Principal judgment Parties: Dianne Speer (Plaintiff) Garry Bruce Willis (Defendant) Representation: Counsel: J Heesh (Solicitor) (Plaintiff) Solicitors: Carroll & O'Dea Lawyers (Plaintiff) File Number(s): 2013/114734

Judgment (ex tempore - revised 1 july 2013) 1HIS HONOUR: Maxwell Franklin Willis (the deceased) died on 5 December 2008. He had made a will on 31 January 2007. By that will, the deceased appointed his son Garry Bruce Willis (who is the defendant) to be executor and trustee. Among other things, the will left a legacy in the sum of $20,000 to the plaintiff, Ms Dianne Speer. 2The defendant has obtained a grant of probate of the will. It seems that administration of the estate, which was valued at about $314,000 and the major asset of which was a parcel of real estate in the Southern Highlands, was complicated because of claims made by a person claiming to have been in a de facto relationship with the deceased and by another son of the deceased. Those claims were eventually compromised, one for $95,000 and one for $15,000. It seems that administration of the estate has been finalised, because the real estate in question has been transferred to one Russell Kane Willis, who I understand is the son of the defendant, for the sum of $280,000. 3On the figures, and on the assumption that there were no significant debts owing by the deceased, there was more than enough in the estate to pay the full legacy of $20,000 left to the plaintiff. Nonetheless, the defendant has chosen to pay only the sum of $2,000. Payment of that sum was made by bank cheque which was sent under cover of a rambling handwritten letter addressed "To Whom It May Concern". That letter made allegations which, if they were directed at the plaintiff, appear to have no foundation whatsoever; and, if they were addressed to others, would display no reason for paying the plaintiff less than the amount of her legacy. 4The plaintiff has made numerous attempts, both by herself and through lawyers retained by her, to find out what is happening with the administration of the estate and when she might expect to receive payment of the balance of the legacy left to her. 5The solicitor retained to act in the estate, a Mr Reading, has said in any event that once the claims against the estate were settled, he acted on the instructions of the defendant by transferring the balance of the estate's assets to him so that the defendant could complete administration of the estate. 6The plaintiff filed a statement of claim which suffered from a number of drafting defects (at that stage she was acting for herself) but which, nonetheless, made it clear that she wanted to be paid the balance of her legacy together with interest. I am satisfied, from the affidavit of Peter Miltenyi sworn 17 April 2013, that the statement of claim was served on the defendant. His reply, "piss off", could be taken to indicate that he has little interest in satisfying what appears to be the reasonable requirement of the plaintiff that she be paid the full amount of the legacy left to her. 7The plaintiff now moves for orders, among other things, that she be paid the balance of the legacy and interest. I am satisfied, from the affidavit of the plaintiff's solicitor Ms Heesh, that the notice of motion was served on the defendant, and that the defendant is aware of the relief sought. Ms Heesh posted the documents to the defendant by express post, and sent copies of them also to Mr Reading, to whom I have referred earlier. It appears from Ms Heesh's affidavit that she spoke to Mr Reading on several occasions and that on the last of these occasions she said "I assume you spoke to Mr Willis and he told you to do nothing about this matter", to which Mr Reading replied "Yes, I have no instructions". 8As I have said, I am satisfied that the defendant has been served with the notice of motion and, further, that he has actual notice of the relief sought against him. 9The defendant has had every opportunity to advance reasons why the full amount of the legacy could not be paid. That is apparent from the numerous requests that have been made of him to justify his position, to which requests he has made no reply. On the evidence as it is before me, it does not seem that the estate was insolvent. On the contrary, in particular from the terms of the rambling handwritten letter to which I have referred and from the way in which the defendant responded to service of the statement of claim, it could be inferred that he has not paid the balance of the legacy because he does not think that the plaintiff deserves to be paid it. If that is correct, it is utterly irrelevant; it is the wishes of the deceased, and not the wishes of the defendant as his executor and trustee, that are of concern. 10The defendant has not appeared today. He was not present when the matter was listed before the Registrar and he was not present when the matter was referred to me. Accordingly, the orders being made in the absence of the defendant, his position will be protected to some extent because he will be able to apply to have them set aside should he wish to incur further cost in doing so. 11Thus, it seems to me, the just, quick and cheap resolution of this dispute requires that the plaintiff should have the orders that she seeks. Her entitlement under the will is plain. On the evidence, there is no reason why that entitlement should not be satisfied in full. The defendant has made no attempt to justify his position. 12Accordingly, I make an order in accordance with paragraph 4 of the notice of motion filed on 14 June 2013. I order the defendant to pay the plaintiff's costs of the proceedings. In the circumstances, having regard to the amount of the legacy, it is clearly appropriate that those costs be paid on the indemnity basis so that the victory will actually have some financial worth so far as the plaintiff is concerned. Accordingly, I order that the costs be assessed on the indemnity basis.