Brown v Grosfeld; Fitzpatrick v Grosfeld

Judgment 1HIS HONOUR : These proceedings concern the estate of the late Barry Chick who died on 9 December 2007 aged 77. On 5 March 2009 probate of his will was granted to the defendant, Mr Grosfeld. 2The plaintiffs in proceedings 2009/00288951 are Jennifer Brown and Ian Chick. They are children of the deceased. They seek orders under s 7 of the Family Provision Act 1982 for further provision out of the estate. 3The plaintiff in proceeding 2009/00290500 is Ms Margaret Fitzpatrick. She was the deceased's de facto partner between 1980 and 2001. Following their separation, the deceased and Ms Fitzpatrick entered into an agreement to resolve the claims one might have against the other under the Property (Relationships) Act 1984. The deceased acknowledged he was liable to make a payment of $300,000 to Ms Fitzpatrick which, if not made during his lifetime, was to be met by his providing in his will for the payment of $300,000 to her. In his will the deceased left Ms Fitzpatrick a legacy of $300,000. There was ultimately no issue that Ms Fitzpatrick was entitled only to a legacy of $300,000 and was not entitled to recover that sum as a debt against the estate. The only issue concerning her is whether, if an order for provision is made in favour of the plaintiffs, any burden of that order should be borne by her so as to reduce the legacy to which she is otherwise entitled. Ms Fitzpatrick sought an order for the payment of the legacy of $300,000 and interest at the rate applicable to legacies under the Probate and Administration Act 1898. 4Jennifer Brown and Ian Chick filed an amended summons in which they claim an additional order pursuant to s 86A of the Probate and Administration Act that the court review the amount of charges and legal costs claimed by Mr Grosfeld in his accounts and reduce any amount of charges and legal fees found to be excessive. 5When the matters were listed for hearing, that claim was also listed for hearing together with a further proceeding no. 2010/258874 in which the plaintiffs were two other children of the deceased, namely Murray Chick and Kimberley Runia. The defendant to proceeding no. 2010/258874 is Mr Grosfeld. The plaintiffs in that proceeding seek orders for the removal of Mr Grosfeld as executor and an order that he repay fees, charges and commissions paid to him out of the estate. Orders are also sought under s 86A of the Probate and Administration Act . Part of the claim in those proceedings is that Mr Grosfeld has charged the estate with excessive costs and has claimed excessive amounts for his own fees pursuant to a clause of the will that authorises him to charge his usual professional rates as an accountant for work done as executor. There are other allegations challenging the propriety of the executor's conduct. 6The challenges to the executor's charges are relevant to the claim under the Family Provision Act as they affect the quantum of the distributable estate. All three proceedings were listed for hearing together on 2 May 2011 for three days. However, on the first day of the hearing an application was made for an adjournment by counsel then appearing for Mr Grosfeld. Other counsel had long been briefed in the matters, but had been admitted to hospital on the preceding Friday and although subsequently discharged, was unable to appear for Mr Grosfeld by reason of his illness. There had not been time for other counsel to be briefed to be able to deal with all of the matters. I decided that it was not possible to proceed with the claims challenging the propriety of the executor's conduct and the allegations of over-charging as they raised detailed factual matters with which new counsel could not deal in the available time. I was also of the view that if the proceedings were adjourned to Wednesday, 4 May 2011 new counsel should be in a position to deal with the Family Provision Act claim, particularly as the executor would have the assistance of counsel retained to appear for Murray Chick and Kimberley Runia who had both sworn affidavits in opposition to that claim. 7Accordingly I adjourned proceeding no. 2010/00258874 and ordered that the claim by the plaintiffs in proceeding no. 2009/00288951 for an order under s 86A of the Probate and Administration Act be heard separately and after the balance of the Family Provision Act proceedings. Those two claims will be heard together at a future date. It follows that I must deal with the Family Provision Act claim when there remains some uncertainty as to the size of the estate. However, that uncertainty does not prevent a determination of the issues. It is often the case that there is uncertainty in relation to the value of an estate. Sometimes that uncertainty is disguised by the parties agreeing on a particular figure as the value of estate assets, even though the true value is a matter of debate.