Supreme Court New South Wales Medium Neutral Citation: Re Estate GR, deceased [2015] NSWSC 1584 Hearing dates: 26 October 2015 Date of orders: 26 October 2015 Decision date: 26 October 2015 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: Orders for a penultimate will to be admitted to probate, reserving to an absent party a limited entitlement to move the Court for an order that the grant be revoked and an order that the last (controversial) will be admitted to probate instead. Catchwords: SUCCESSION – Probate and letters of administration – Grants of probate and letters of administration – Jurisdiction and discretion of court – Controversy attaching to validity of final will – Passing over final will - Grant of probate in common form of penultimate will – Reservation of liberty to apply for revocation of grant – Time to make such application limited Legislation Cited: New South Wales Trustee and Guardian Act 2009 NSW Cases Cited: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 IR v AR [2015] NSWSC 1187 Texts Cited: - Category: Principal judgment Parties: IR: A son of the Deceased AR: A son of the Deceased MR: The Widow of the Deceased (by the NSW Trustee as her financial manager) NSW Trustee: Administration of the Estate of the Deceased, by an interim grant. Public Guardian: Guardian of MR Representation: Counsel: IR: MK Meek SC and G Huxley AR: Non-appearance MR: C Phang, solicitor (NSW Trustee) NSW Trustee: C Phang Public Guardian: C Phang Solicitors: IR: Uther Webster & Evans MR: NSW Trustee and Guardian (C Phang) Public Guardian: NSW Trustee (C Phang) File Number(s): 2015/00188706 Judgment – EX TEMPORE 1. These proceedings concern the estate of GR who died on 15 May 2015, aged 86, leaving: 1. a widow MR, aged 83 and presently a "protected person" within the meaning of the New South Wales Trustee and Guardian Act 2009 NSW by virtue of orders made by the Guardianship Division of NCAT, varied by orders of this Court made on 24 August 2015, the subject of reasons for judgment published as IR v AR [2015] NSWSC 1187 (21 August 2015, with addendum 31 August 2015); 2. two adult sons, IR (born in 1961, now aged 54 years) and AR (born in 1969, now aged 46 years); 3. a will dated 27 March 2007; and 4. a will dated 3 March 2015. 1. Both wills provide for the widow of the deceased to be his sole beneficiary. The earlier will appoints his widow as executrix. The latter will appoints AR as executor. 2. There is no dispute as to the validity of the earlier will but for its purported revocation by the latter will. 3. Controversy attaches to the validity of the later will because: 1. its execution was evidently secured by AR, apparently in the belief that he is beneficially entitled to the whole of the estates of his parents by virtue of a controversial "life contract" allegedly executed by his parents, in his favour, in Croatia. 2. some time before the 2015 will was purportedly executed, AR appropriated to himself approximately $1 million of the proceeds of sale of land owned by his parents in Sydney, and he refuses to explain the whereabouts of that money (which he transferred out of Australia) or to prove his entitlement to retain it. 3. AR has appeared in these proceedings by a solicitor from time to time, but he has generally eschewed representation by lawyers, and insisted upon a presumed entitlement to participate in the proceedings, or not, on his own terms and as, when and how he pleases. 4. AR has failed to comply with a direction given by the Court on 12 October 2015 that he file and serve a written outline of the case he seeks to make concerning the future course of these proceedings, including his case referable to the following questions: 1. whether the deceased did or did not possess testamentary capacity to make the will dated 3 March 2015. 2. whether he (AR) claims any, and if so, what relief in these proceedings in relation to the "lifetime contract" said to have been signed by his parents. 3. whether he (AR) is, or is not, prepared to submit to orders for there to be a full accounting by him to the court for his receipt of, and dealing with, property (including proceeds of sale of land of the order of $1 million) ostensibly the property of his parents. 1. in the absence of any explanation of a course of events by AR, there remains, at least, a reasonable suspicion that execution of the will dated 3 March 2015 by the deceased was procured by AR as part of steps taken by him, not in the interests or for the benefit of his parents or with their fully informed consent, but to appropriate their property to himself, to their detriment. 1. Even if the 2015 will were to be held valid, it would not, on its face, alter the entitlement of the deceased's widow to beneficial ownership of the whole of the deceased's estate. 2. Given the controversy attaching to validity of that will, the prudent course is to pass over it in favour of a grant of administration in respect of the 2007 will, reserving an opportunity for the 2015 will to be brought forward at a later time should a timely application for its admission to probate be made and diligently pursued. 3. The 2007 will purports to appoint the widow as executrix of the deceased's estate. It is beyond dispute, however, that she is incapable of managing her own affairs. The NSW Trustee is her financial manager. An interim grant of administration of her husband's estate has previously been made to the NSW Trustee. The NSW Trustee consents, now, to a grant of letters of administration with the will annexed (be it the 2007 will or the 2015 will) for the purpose of bringing order to administration of the deceased's estate and, incidentally, to the affairs of his widow. 4. Having regard to the controversy attaching to the 2015 will, and AR's refusal or failure to propound it by a timely articulation of his case, the appropriate course is to grant letters of administration in favour of the NSW Trustee, admitting the 2007 will to probate in common form. 5. The distinctive character of a grant of probate in common form, as distinct from a grant in solemn form, is explained in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786. That judgment also explains the grounds upon which a grant of probate (including a grant of administration with a will annexed) can be revoked upon application to the Court. 6. If AR seeks to propound the 2015 will, he should be allowed a reasonable time within which to apply for revocation of the grant in favour of the NSW Trustee, explaining his failure to proceed with his application for a grant in a timely way, responsive to directions of the Court. 7. AR has done little in the context of these proceedings, or in the context of the earlier proceedings (in which IR v AR [2015] NSWSC 1187 was published) relating to management of his mother's protected estate, to make good his claim to beneficial ownership of his parents' property. It is not appropriate to delay administration of the deceased's estate any longer, particularly as orders can be, and are today, made designed to ensure that further delays on the part of AR are not compounded. 8. Accordingly, I make the following orders: 1. ORDER that the will dated 27 March 2007 ("the will") of GR, who died on 15 May 2015, be admitted to probate in common form. 2. ORDER that letters of administration, with the will annexed, be granted to the NSW Trustee. 3. ORDER that the proceedings be referred to the Registrar to complete the grant. 4. RESERVE to AR liberty to apply for orders that orders 1 and 2 be revoked and that, in lieu thereof, the purported will of the deceased dated 3 March 2015 be admitted to probate. 5. ORDER that any application made pursuant to order 4 be made by way of a notice of motion (supported by affidavit evidence) filed in these proceedings no later than 23 November 2015. 6. Order that any notice of motion filed pursuant to order 4: 1. be made returnable before the Probate List Judge on 7 December 2015; and 2. be served on the NSW Trustee and IR no later than 23 November 2015. 1. ORDER that AR file and serve, no later than 23 November 2015, any affidavits he proposes to file in support of such notice of motion as may be filed by him pursuant to order 4. 2. ORDER that the amended summons filed by AR on 23 September 2015 be dismissed, without prejudice to the operation of orders 4, 5, 6 and 7 of these orders. 3. ORDER, subject to further order, that the costs of IR and the NSW Trustee be paid out of the estate of the deceased. 4. RESERVE to the NSW Trustee and IR jointly or severally liberty to apply for an order that the costs the subject of order 9 be paid or borne by AR. 5. ORDER that the NSW Trustee, no later than 29 October 2015 or such other date as may be appointed by the court, serve a copy of these orders on AR. 6. ORDER that order 11 may be complied with by despatch of a copy of these orders to the last known email address of AR. 7. ORDER that these orders be entered forthwith. ********** Amendments 29 October 2015 - Substitute "order 11" for "order 1" in Order No. (12). 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. Decision last updated: 29 October 2015