Fawcett v Crompton

Fawcett v Crompton - [2010] NSWSC 219 - NSWSC 2010 case summary — Zoe

[24]

That appears to be a standard clause used in wills drafted in the Public Trust Office. 9 The deceased's will of 3 September 2004 contained an outright gift of all his property after payment of estate liabilities to SUC. The wills of 15 and 21 October 2004, 6 October 2005, 13 December 2005, 28 September 2006 and 29 September 2006 contain varying dispositive provisions, taking a different form, but each will contains a gift of the deceased's residuary estate (the rest of my property) to SUC. 10 I interrupt the narrative to record that, as on one view there is a possible intestacy as to part of the deceased's estate in France, I have to be satisfied that no further party should be joined. The following facts were established: (a) The deceased was born in England and came to Australia in about 1955. In 1955 he married Audrey Firman in Sydney. b) The deceased's wife, who died in 2002, was the plaintiff's sister. (c) The deceased and Audrey had two children, Peter and Roger. (d) Peter was married to [SUC] (the defendant). There was no issue of the marriage. (e) Peter Crompton and the defendant were divorced in about 2003. (f) Peter Crompton died between 24 August 2004 and 28 August 2004. (g) Roger Crompton died on 22 July 1982, aged 20, in a motor vehicle accident. (h) Roger did not marry and left no issue. (i) The deceased was the only child of his parents' marriage. His parents and grandparents are dead. He had an aunt who lived in Bournemouth, England, but she is deceased. (j) The deceased owned an apartment known as No 57 Rue Damremont, Paris, France at the date of his death. He also had some money in a bank account with BNP Paribas in Paris. (k) In recent years the deceased had travelled to France each year and stayed for about three months. (l) The defendant moved into the deceased's apartment at Birchgrove after the death of Audrey in about 2003. Prior to that time the defendant had been living in a flat at Neutral Bay. 11 After probate was granted, the plaintiff, by her solicitors, made enquiries of a French lawyer, Sophie Gargaro, who, she understood, had acted for the deceased when he purchased the apartment in Paris. Miss Gargaro suggested that the plaintiff consult M.Hubert-Emmanuel Flusin, who conducts a legal practice in Paris as a notaire (French legal practitioner). Mr Flusin, a French notaire, has advised:

[25]

(a) The immovable assets (real estate) of properties the deceased held in France will be governed by French law. This applies to the rents and profits earned from the immovable assets located in France (see his letters of 22 April 2008 and 6 February 2009). (b) The movable assets, (i.e. the bank account) left in France will be governed by the law of the country where the deceased had his latest domicile (see his letters of 22 April 2008 and 6 February 2009). (c) Mr Le Rossignol, the notaire who drafted the deed of acquisition of the apartment rue Damremont, has confirmed that he holds the will drafted by the deceased after completing this acquisition (see email 27 September 2008). (d) (i) Under French inheritance law the administration of a will falls to the forced heirs (i.e. the deceased's children, when applicable) who must hand over the assets bequeathed to the legatees, provided the will does not override their rights. (ii) Where there are no protected heirs, a copy of the will is sent by the notaire to whom the document was entrusted to the Greffe du Tribunale d'Instance for verification of its formal validity. It is a substantial condition which must be fulfilled before the legatees can dispose of the assets bequeathed (see letter 25 June 2009). 12 It would seem from the materials after making a will in France, if there are no protected heirs, it is often deposited with a notaire. It would seem that there are no protected heirs. It is not my task to deal with the requirements of French law and practice. 13 In his letter of 12 March 2009, Mr Flusin advised that the Australian will appeared to be valid in France, including the revocation clause. Mr Flusin raised the question whether the Australian will of 11 February 2007 effectively revoked the French disposition of the deceased. Reference was made to The Hague Convention of 5 October 1961. Mr Flusin commented that the Australian will made no provision for the assets of the deceased located in France. He wrote: "As far as French assets are concerned, Mr Crompton therefore died intestate. Unfortunately, in this situation, unless blood relatives are known or can be found, the estate is vacant and passes on to the State." 14 In his letter of 22 April 2008 Mr Flusin advised that: "One part of the estate will be 'reserved' to her (sic) children (or, if not grandchildren), and if not, to her parents or grandparents. We call this 'la reserve', which is a system of forced heirship rules."

[28]

I knew that a Georg Riediger was the managing agent of the Paris unit for Ken...Ken said to me, 'Georg pointed out a lawyer to me and I went to the lawyer and made out the property to you.' Ken gave me a copy of the document written in French dated 8 October 2003 signed by him, which is part of annexure H to the affidavit of [JF] sworn 28 September 2009 ... At that time Ken said to me, 'I have deposited the will in a safety security box at National Australia Bank Balmain branch. I want you to know where it is. It is in a sealed envelope addressed to you." 19 SUC said that she didn't go to the National Australia Bank after the deceased's death." The matter was left to the executrix. She has given evidence before me that she went to the bank on two occasions; that she was handed an envelope and that contained and only contained the deceased's will of 11 February 2007. There were no other papers. 20 SUC said in paragraph 9 of her affidavit: "9. Some considerable time after the events described in paras 6 and 7 above, Ken was talking about a will he made or was making in Australia. He said: 'All has been taken care of you will get Queensland and I will make sure you get Balmain. I will also make sure you get the property in Paris. The wills are being kept separate. I have been advised by a lawyer to keep the two wills separate.'" 21 According to paragraph 6 of the affidavit of 19 November 2009 of NV of Cammeray he held a conversation in January 2005 in Luntorf, Germany with the deceased who said: "The Paris unit is for [SUC] and I made a separate will in French so it is all legal. I have also given her the keys." 22 According to NV, on 26 January 2007 the deceased told him, NV, the French will was in Paris and that he was redoing (or had redone) his legal will for his Australian assets, and that he, the deceased, was keeping his wills separate because of taxes. 23 The relevant principles as to revocation are of long standing. They have been revisited by Tadgell J in Re Barker [1995) 2 VR 439 and Sackville AJ in Schneider & Anor v Sydney Jewish Museum Inc & Anor [2008] NSWSC 1331. At [106], Sackville AJ accepted that in a court of probate the whole question of revocation is one of intention. The judge continued: "Thus, although a general revocation clause ordinarily revokes all prior testamentary acts, probate may be granted of a prior will or testamentary disposition if the court is satisfied that it was not the deceased's intention to revoke the earlier document." (citations omitted) 24 In Re Barker at p 445, Tadgell J said: "It has been recognised for 150 years and more that a general revocation clause in a will is not sufficient to revoke a prior will if a court of probate is satisfied that the testator did not intend by the later will to revoke the earlier." (citations omitted)

[31]

…" 28 Section 29A(1) is cast in very wide terms. Section 29A was enacted following a recommendation of the New South Wales Law Reform Commission. It did not recommend restricting the power of rectification other than as stated in the section. As Sheller JA said in Mortensen & Eassie v State of New South Wales (unreported, NSW Court of Appeal 12 December 1991): "The Court's discretion, assuming it is satisfied that the will is so expressed that it fails to carry out the testator's intention, is limited to rectifying the will in such a manner as to carry out the testator's intention." 29 The principles relating to the construction of s 29A were summarised by Campbell J in Rawack v Spicer [2002] NSWSC 849 at [26]-[31]. 30 In all his many wills made in Australia the deceased purported to dispose of the whole of his property and there was either a gift of all his property subject to payment of all debts and expenses or a gift of the residue. He did not refer to his French apartment or French bank account specifically. With so many wills and so much attention being paid to the disposition of his estate and so many provisions disposing of the residue, it is improbable that the deceased intended that there would be an intestacy as to part of his estate. 31 The beneficiary of the apartment under the French will and the residuary beneficiary of his estate throughout his wills up to 14 January 2007 was SUC. 32 From the materials, it is probable that the deceased believed that separate wills were desirable, if not necessary, to deal with his French apartment and the rest of his estate which was mostly in Australia. 33 The deceased is unlikely to have understood and to have been aware of the intricacies of private international law and the difference at law between immovable property and moveable property especially if the money in his bank account came from the net rents of his Paris apartment. 34 The parties (JF and SUC) do not know and may not be able to prove the sources of the funds in the Paris bank account and tracing is an expensive exercise. There is the authority of the application of Spooner & Anor: Estate JJ Davis (Hodgson J, 28 July 1995 - BC 9505381) to the effect that rectification may be granted for more abundant caution. This decision was followed by McLelland CJ in Eq in the Estate of Cross, Deceased (unreported, 9 May 1996). Further, I am unaware whether French law would apply a principle akin to tracing as to the moneys in the bank account. That may be an unnecessarily complex and costly process, especially having regard to the Bank's requirements. 35 It is probable that the deceased mistakenly believed when executing the will of 11 February 2007 that he had disposed of his French apartment by his French will and the whole of his estate including his residual estate. In that he was mistaken. The deceased intended to dispose of all his property wherever situated. He did not realise that as a result of inserting the words "in Australia" in the residuary clause of the will of 11 February 2007 he had not done so. The words "in Australia" were inserted by mistake. 36 There is a further matter which is outstanding having regard to the terms of s 29A(3) of the Wills Probate and Administration Act 1898 in that the cross-claimant/defendant [SUC] in substance requires an extension of time in which to seek rectification. I am satisfied that sufficient cause has been shown for the failure to make the application for rectification within 18 months after the death of the deceased testator for these reasons:

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