FAIRCLOUGH -v- CVITAN [2019] WASC 370 (15 October 2019)

The heads of agreement dated 20 June 2017 signed by the parties at mediation on that date is binding upon the parties according to its terms.

1. As will be seen, the heads of agreement proceeds on the basis that the plaintiff, Krystyna, would not take up an appointment as executor of her late mother's estate - Krystyna being named as the late mother's executor. Instead, the heads of agreement proceeded on the basis that the Public Trustee would be appointed as administrator of the estate of the late Mrs Cvitan with the 2008 will annexed.
2. The heads of agreement further provided that certain variations would be made to the way the will would otherwise have been carried into effect under its written terms. Two important changes agreed to were that the first defendant, Srecko, would relinquish a specific bequest under the 2008 will of a $50,000 payment and instead become an equal one-quarter share beneficiary with his brother and two sisters.
3. The heads of agreement also provided for the plaintiff, Krystyna, and the first defendant, Srecko, to receive specific cost reimbursements of $100,000 each out of their mother's estate with all other parties bearing their own legal costs.

1. I record that the evidence adduced at the trial under affidavit comprised the following, namely:

(a) the affidavit of Krystyna Diana Fairclough sworn 8 July 2019;

(b) the affidavit of Shaun William Conlin, director of trustee services for the Public Trustee of Western Australia sworn 19 August 2019;

(c) paragraphs of the affidavit of Doris Carina Boyd sworn 26 May 2016 (namely par 1, first sentence par 2 and pars 4 through 9 and 11 through 14 inclusive); and

(d) paragraphs of the affidavit of Esef Mirascja affirmed 24 May 2016 (namely pars 1 through 4, 7, 8, 17 and 18).

1. There was no cross‑examination given the nature of the uncontested trial on any of the evidence so adduced.
2. From that affidavit evidence the following facts are established. The late Mrs Cvitan was born on 16 October 1926 at Zlarin in Croatia. In October 1948 she married Benjamin Cvitan. They were married in Split, Croatia. Mrs Cvitan's maiden name was Gregov, before she was married.
3. Subsequently, Benjamin and Anka moved to Australia, where they had four children, namely, Srecko, born 13 July 1950, Krystyna, born 29 November 1952, Milena, born 11 December 1955, and Tonchi John, born 20 November 1958.
4. Mrs Cvitan was a widow at the time she came to make her 2008 will and did not remarry prior to her death on 1 September 2013.

1. The 2008 will has not been revoked by subsequent marriage or termination of marriage or by destruction or otherwise. Mrs Cvitan died leaving significant assets, including property in Western Australia.
2. The 2008 will was executed validly in accordance with s 8 of the Wills Act 1970 (WA). The independent witnesses to her last will and testament were Doris Carina Boyd and Esef Mirascija, both of the Bell Legal Group of Bundall, Queensland. The respective affidavits of those witnesses confirm the circumstances in which the late Mrs Cvitan came to execute the 2008 will. They explain that given that Mrs Cvitan was born in Croatia and English was, in effect, her second language, great care was taken to read to her the English words of the proposed will which were then translated back to her in the Croatian language sentence by sentence. This was done in order for the late Mrs Cvitan to enjoy a fulsome opportunity to have explained to her and thus acquire a complete understanding of the terms of her last will and testament.
3. I should say now that the evidence adduced, particularly by the independent witnesses, who are both now legal practitioners in the State of Queensland, satisfies me to the requisite standard that the late Mrs Cvitan both held full testamentary capacity in terms of a proper level of insight towards what she was doing at the offices of the Bell Legal Group in Bundall, Queensland, on 13 June 2008. I am therefore satisfied that the requirements of s 8 of the Wills Act of Western Australia are fully met. I note that the concluding clause of the 2008 will provides in the following terms:

This Will having first been read over to the testator ANKA CVITAN who understands the Croatian language but has an imperfect knowledge of the English language by me the undersigned first witness [ie, Doris Carina Boyd] and having been truly interpreted to the testator by me the undersigned second witness [ie, Esef Mirascija] who understands both the English and the Croatian languages which reading and interpretation were both done in our presence when the testator indicated to us that she thoroughly understood the contents and effect thereof was signed by the testator with her mark in our presence and attested by us in the presence of each other ...

1. As I have indicated, Mrs Cvitan eventually passed away on 1 September 2013, some five years after executing the 2008 will.

1. As mentioned, some difficulties were encountered due to family disputation for a time after Mrs Cvitan's passing on the basis that Srecko was counterclaiming for a grant of probate of an earlier will made by his mother on 10 June 2005, claiming that the 2008 will was not a valid testamentary act. The earlier 2005 instrument had left the estate in equal shares between the four children with a specific bequest of a 59‑piece white and gold dinner service to Mrs Cvitan's granddaughter, Vesna.
2. However, the four children of the late Mrs Cvitan and her granddaughter, Vesna, all signed the heads of agreement instrument (in longhand), which was the consequence of a mediation conducted before a registrar of this court in June 2017. The heads of agreement reads in the following terms:

1. All parties to this action renounce their right or entitlement to obtain probate or letters of administration of the estate of the late Anka Cvitan (deceased).
2. The 2008 will of the late Anka Cvitan (deceased) be propounded without opposition subject to the terms of this Heads of Agreement.
3. The Public Trustee be appointed as administrator of the estate of the late Anka Cvitan (deceased) with the 2008 will annexed.
4. The following costs of the action be paid out of the estate of the late Anka Cvitan (deceased)

(a) $100,000 to the Plaintiff; and

(b) $100,000 to the First Defendant.

1. All parties otherwise bear their own costs of the action.
2. The parties enter into a deed of arrangement and the estate of the late Anka Cvita (deceased) be administered in accordance with such deed.
3. The deed of arrangement provide that:

(a) the first defendant releases his specific bequest of $50,000;

(b) payment of the specific legacy to Vesna Vlahovof $100,000 be paid; and

(c) the residue of the estate of the late Anka Cvitan (deceased) be divided equally amongst:

(i) Krystyna Diana Fairclough;

(ii) Srecko Frank Civitan;

(iii) Tonchi John Cvitan

(iv) Milena Janice Zuvela

1. There followed beneath that the signatures respectively of Krystyna Diana Fairclough, Srecko Frank Cvitan, Tonchi John Cvitan, Vesna Ane Vlahov and Milena Janice Zuvela.
2. As mentioned, at the time of the heads of agreement Krystyna and Srecko were both legally represented.
3. Regrettably, further family disputation ensued after 20 June 2017. The parties were unable to agree upon the terms of the deed of arrangement as contemplated under clause 6 of the heads of agreement. That ensuing discord between the family members led to the matter being referred to me. A full scale eight day trial was set down to determine the validity of the 20 June 2017 heads of agreement. That trial was set down to be heard for eight days during November 2017. Programming orders and directions were issued to facilitate that trial. At the time the plaintiff and the first defendant were still legally represented, with all other remaining parties self-represented. However, as mentioned, on 27 November 2017 the court received counterpart minutes of consent orders signed by all parties. Hence, on the basis of that late but nevertheless welcome agreement between and signed by all family members, I issued orders on 27 November 2017 by consent in the following terms:
   1. The heads of agreement dated 20 June 2017 signed by the parties at mediation on that date is binding upon the parties according to its terms.
   2. The hearing date of 28 November 2018 be vacated.
   3. There be no order as to costs.
4. But subsequent to those consent orders, there have been even more difficulties encountered in the implementation of the agreed arrangements, including as regards the participation of the Public Trustee of Western Australia. Nevertheless, after a further directions hearing of 24 June 2019, at which I ordered a transcript of the hearing be provided to the Public Trustee, there has subsequently been received the affidavit of Mr Conlin, as the director of trustee services and delegated representative of the Public Trustee, for the purposes of the uncontested trial. Relevantly, Mr Conlin now deposes:
   1. Subject to the plaintiff proving in solemn form the will made by the late Anka Cvitan dated 13 June 2008 (2008 Will), the Public Trustee consents to being appointed as administrator of the estate of the late Anka Cvitan with the 2008 Will annexed and, if appointed, the Public Trustee will administer the estate according to law.
   2. Subject to any contrary direction that the Court may give, the basis of the Public Trustee's above consent and undertaking to administer the estate according to law is made on the following basis and understanding as to the terms and effect of Heads of Agreement made between the parties dated 20 June 2017:

(1) the specific legacy of $50,000 made to the First Defendant by clause 4 of the 2008 Will (and any interest on that) has been released and shall not be paid;

(2) payment of the sum of $100,000 shall be made to the Third Defendant in full satisfaction of the specific legacy of that sum made by clause 3 of the 2008 Will;

(3) subject to it being identified and located, the 59 piece white and gold Polish Wakbryzch dinner service referred to in clause 3 of the 2008 Will go to the Third Defendant;

(4) the costs of the action will be fixed as at the date of judgment and paid as follows:

1. the Estate will pay $100,000 to the Plaintiff;
2. the Estate will pay $100,000 to the First Defendant;

1. the Plaintiff and the First Defendant waive their right to claim interest on the costs in 4a. and b.; and

1. the parties will otherwise bear their own costs of the action.

(5) subject to the payment of just debts, funeral and testamentary expenses, the residue of the estate shall be distributed in four equal shares to:

1. As indicated, the matter has proceeded to what was in the end an uncontested trial pursuant to the terms of RSC O 73 r 19. The objective was for the court to be satisfied as to the issuing of a grant of probate in solemn form. As seen, the acceptance of the appointment as administrator by the Public Trustee is contingent upon the court being so satisfied and issuing such a grant. Albeit the matter has proceeded on an uncontested basis, the abiding need for satisfaction by the court to the requisite standard of proof of the 2008 will in solemn form is explained by EM Heenan J in Wheatley v Edgar [2003] WASC 118.
2. The parties to a probate action cannot simply consent to a solemn form grant being made in respect of a will without the offering of sufficient evidence to provide a justifiable basis for the court to be satisfied to the requisite standard to issue a grant in solemn form: see Wheatley [22], [24], [25] and [30]. Nevertheless, it is a relevant consideration that the interested parties (who are all before me) to the 2008 will of the late Mrs Cvitan have agreed upon a resolution of how the estate will be administered: see Tolson v Hender [2009] WASC 319 [4] and Public Trustee v Gerritsen [2012] WASC 201 [14]. See also the observations of Lindsay J in Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786 [251], [262] and [263].
3. As seen, the compromise reached between the parties under their June 2017 heads of agreement effectively favours the first defendant, Srecko, by setting aside what has been a limited lesser amount bequest which his mother had then made in his favour - and was perhaps the source of the initial discord ensuing on his behalf as against the 2008 will. The compromise arrangement under the heads of agreement effectively makes all children equal residuary beneficiaries incurred and provides for an equal contribution of $100,000 each towards the legal costs of Krystyna and Srecko in this action. From the material before the court, it would appear that a one-quarter residuary share will exceed Srecko's previously bequested sum of $50,000.
4. In all the circumstances, I am well satisfied that a grant of probate in solemn form as proposed should issue. I also take into account the usual presumptions of capacity, knowledge and approval, although in the end the direct evidence, particularly from independent solicitor witnesses to the making of the 2008 will, is essentially overwhelming as to the full and unimpaired capacity of the late Anka Cvitan to execute her valid 2008 testamentary instrument as she did at the time in 2008.

1. Consequently, it was for those reasons that at the unopposed trial of this matter on 10 October 2019 I issued the following orders:
   1. It is pronounced that the last will and testament of the late Anka Cvitan dated 13 June 2008 (Will) is valid and has force and effect in solemn form of law as the Will of the late Anka Cvitan.
   2. The Plaintiff having renounced her right to obtain a grant of probate in respect of the Will pursuant to the Heads of Agreement made between the parties to this Action dated 20 June 2017 (Heads of Agreement), subject to the Public Trustee of Western Australia (Public Trustee) filing a notice of consent to act, the Probate Registrar shall issue a grant of letters of administration with the Will annexed to the Public Trustee.
   3. The Estate of the late Anka Cvitan (Estate) is to be administered consistently with the terms of the Heads of Agreement.
   4. Subject to a grant being made to the Public Trustee in accordance with order 2 hereof, there be liberty to the Public Trustee of apply seeking such directions as it sees fit in respect of the administration of the Estate.
   5. As per the terms of the Heads of Agreement, the Plaintiff's costs of the action in the sum of $100,000 shall be paid from the Estate.
   6. As per the terms of the Heads of Agreement, First Defendant's costs of the Action in the sum of $100,000 shall be paid from the Estate.
   7. Save to the extent otherwise provided under orders 5 and 6 hereof, the parties in this Action shall otherwise bear their own costs of the Action.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.