Estate of the Late Violet Eugenie Harrigan - Cowmey v Whibley

Judgment 1HER HONOUR: Before me for hearing on 23 March 2012 was an application (brought by Amended Notice of Motion filed in Court (by my leave) on the commencement of the hearing) by the plaintiff, seeking declaratory relief and consequential orders (in advance of a final hearing of her claim) as to the relevance of evidence that has been foreshadowed by the defendant on the plaintiff's claim for provision out of the estate of the late George Whibley. Issue 2The relief sought on the present application (leaving aside procedural matters) is as follows:

• A declaration that evidence of the financial resources (including earning capacity) and financial needs, both present and future, of any beneficiary of the estate of the late George Whibley is irrelevant to the hearing and determination of the plaintiff's application pursuant to the Succession Act 2006 (NSW) (the Act) that a family provision order be made in her favour from the estate of the late Violet Eugenie Harrigan.
• An order pursuant to s 61(1) of the Civil Procedure Act 2005 (NSW) or Part 2, Rule 1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or s 135 of the Evidence Act 1995 (Cth) that the plaintiff's application for a family provision order pursuant to the Act be heard and determined without the admission into evidence or consideration by the Court of the financial resources (including earning capacity) and financial needs, both present and future, of any beneficiary of the estate of the late George Whibley. Background 3The background to the present application is largely uncontentious. The plaintiff (Ms Cowmey) is the only child of Violet Eugenie Harrigan, who died on 23 May 2010 leaving a will dated 9 May 2008. Under that will, Ms Harrigan's then de facto partner, Mr George Whibley, was named as executor. He and Ms Cowmey were named beneficiaries of Ms Harrigan's estate (with a specific legacy to a named third party). 4After Mr Whibley (informally it seems) renounced probate, Ms Cowmey applied for and, on 22 October 2010, received a grant of probate of Ms Harrigan's will dated 9 May 2008. Shortly before probate was granted, Mr Whibley died (on 20 September 2010). 5Under Mr Whibley's will, dated 15 May 2003, Ms Cowmey was named as his executor. She has not yet applied for a grant of probate of Mr Whibley's will (and had earlier indicated an intention not to do so) but I am informed that she now intends to do so. (There may be a disputed probate suit as to who ought properly obtain a grant in the circumstances, particularly where Ian and John Whibley have (or may have) intermeddled in the estate (having been told that the executor under the will was intending to renounce probate. However, that dispute is not before me.) 6Ms Harrigan was the sole beneficiary of Mr Whibley's estate. That gift therefore failed (as Ms Harrigan had pre-deceased Mr Whibley) and Mr Whibley's estate will pass on survivorship to his next of kin. All of Mr Whibley's next of kin reside in the United Kingdom. 7Mr Ian Whibley is one of Mr George Whibley's two surviving brothers. He and the remaining brother (Mr John Whibley) have retained solicitors in this jurisdiction (Teece Hodgson & Ward) and have appointed two of the partners of that firm as their attorneys in relation to the conduct of a next of kin enquiry and to apply for a grant of letters of administration. 8Proceedings were commenced in this Court on 18 May 2011 by Ms Cowmey, by way of Summons, seeking various forms of relief including an order that a family provision order be made pursuant to the Act in favour of Ms Cowmey in respect of her mother's estate. No defendant was joined to the proceedings at that stage. (There is no suggestion that this is improper, although in circumstances where Ms Cowmey is bringing an application contrary to the will that, as executor, she has a duty to uphold, it will clearly be necessary for someone to be appointed to represent the estate.) 9Both an Amended Summons and a Further Amended Summons have since been filed. The position now is that the sole relief sought by Ms Cowmey in these proceedings is that a family provision order be made in her favour in respect of the late Ms Harrigan's estate. 10Mr Ian Whibley was joined as a defendant to the proceedings, with the consent of Ms Cowmey, in July last year. That consent was on the basis that Mr Whibley had consented to acting as the representative of Mr Whibley's estate. On 22 August 2011 a notice of appearance was filed on behalf of Mr John Whibley. (Ms Cowmey did not consent to this.) 11Counsel for the defendant (Mr Gorrick) did not press any application for Mr John Whibley to be formally joined as a defendant. However, he points out that, if a grant of letters of administration is made to the attorneys appointed by the Whibley brothers, it may be that they should be substituted defendants in the proceedings. 12Counsel for Ms Cowmey (Mr O'Connor) accepts that, had the late Mr Whibley survived, it would have been normal procedure for Mr Whibley to be joined as the defendant in these proceedings in order to represent the only interest adverse to Ms Cowmey in the proceedings. He further accepts that, as Mr George Whibley is deceased, it is appropriate for the Court now to appoint a defendant to be joined to these proceedings to represent the late Mr Whibley's estate and that Mr Ian Whibley is an appropriate person to be so appointed. (The position of Mr O'Connor, however, is that there is no basis for more than one representative of Mr Whibley's estate to be named as a defendant in these proceedings and hence that Mr John Whibley should not also be named as a defendant.) 13It is noted that r 7.10 of the UCPR allows the Court to appoint a representative of a deceased's estate in circumstances where the executor of the deceased's person's estate has an interest in the proceedings that is adverse to the interests of the estate. Mr O'Connor readily concedes that Ms Cowmey (the named executor of Mr Whibley's estate, though to whom probate has not been granted) has an interest in these proceedings that is adverse to the interests of the late Mr Whibley's estate. 14The upshot of the debate in this regard is that it is accepted that Mr Ian Whibley is an appropriate person to be appointed as representative of his late brother's estate and that an order should be made to that effect under r 7.10. Mr Gorrick also sought an order that: Subject to further order of the court, order that the representative defendant's costs of these proceedings, on the indemnity basis, be paid out of the estate of the late Violet Harrigan (rather than the said defendant being personally liable for those costs). 15I considered it appropriate to make those orders and did so. 16Turning then to the application before me for declaratory relief, the substantive proceedings brought by Ms Cowmey concern Ms Cowmey's claim for a family provision order pursuant to s 59 of the Act in respect of her late mother's estate. 17Section 60(1) of the Act provides that the Court may have regard to the matters set out in subsection (2) for the purpose of determining whether the person in whose favour the order is sought to be made is an eligible person, and whether to make a family provision order (and the nature of any such order). A wide range of matters is therein set out. 18Relevantly, pursuant to s 60(2)(d) of the Act, the Court may have regard to: the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate. (my emphasis) 19Pursuant to s 60(2)(p) of the Act, the Court may have regard to: any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered. 20The issue that has arisen is that Mr Ian Whibley's solicitors have indicated that they intend to serve evidence from Mr Ian Whibley, Mr John Whibley and nieces of the late Mr George Whibley as to their financial and material circumstances. Ms Cowmey opposes such evidence being adduced on the basis that it is said to be irrelevant to the assessment and determination of her family provision claim. 21It is submitted by Mr O'Connor that the financial and material circumstances of Mr Whibley's relatives can be relevant to Ms Cowmey's claim in respect of her late mother's estate only if that evidence falls within either of sub-ss 60(2)(d) or 60(2)(p) of the Act. Reasons 22Essentially, the dispute on the present motion turns on whether the next of kin of the late Mr George Whibley are beneficiaries of Ms Harrigan's deceased estate for the purposes of s 60(2)(d) of the Act or are persons whose financial needs and circumstances may otherwise be relevant to the determination of Ms Cowmey's application for financial provision.