Grant v Binetter

[2010] NSWSC 278

Supreme Court of NSW|2010-03-18|Before: Rein J

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Court

Supreme Court of NSW

Decision date

2010-03-18

Before

Rein J

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

CITATION : Grant v Binetter [2010] NSWSC 278

[2]

In proceedings 2007/258301: 1. The Summons filed on 19 December 2007 is dismissed. 2. No order as to the costs (to the intent that each party bear their own costs). In proceedings 2007/273194: 1. The proceedings are dismissed. 2. The defendant's costs (i.e. the costs of Robert Grant), calculated on the indemnity basis, are to be paid out of the residue of the estate of George Grant. 3. No order as to the plaintiffs' costs of the proceedings, to the intent that they pay their own costs. In proceedings 2007/282381: 1. Probate, in solemn form, of the will of the deceased, Agnes Grant, made on 16 January 2002, is granted to the second defendant. 2. The matter is referred to the Registrar to complete the grant. 3. The plaintiffs' costs of the proceedings, calculated on the indemnity basis, is to be paid out of the residue of the estate of George Grant. 4. No order as to the second defendant's costs. 5. No order as to the first defendants' costs of the proceedings, to the intent that they pay their own costs. 6. The Notice of Motion filed on 4 December 2009 on behalf of the interim administrator is dismissed. 7. Declaration that each of the Transfers signed by George Grant and by Agnes Grant, and referred to in the proceedings (Docs 47, 48 and 49 in Exhibit A1), is void and of no effect. 8. Note the Orders made in the proceedings numbered 2007/273194 filed on behalf of the first defendants. 9. Note the Orders made and the agreements noted in the proceedings numbered 2007/258301 filed on behalf of the first defendant, Yvette Catherine Binetter. In proceedings 2007/282382: DECISION : 1. Probate, in solemn form, of the will of the deceased, George Grant, made on 30 January 2002, is granted to the second defendant. 2. The matter is referred to the Registrar to complete the grant. 3. The Cross-Claim filed by the first defendants is dismissed. 4. The plaintiffs' costs of the proceedings, calculated on the indemnity basis, is to be paid out of the residue of the deceased's estate. 5. The second defendant's costs, assessed and agreed at $23,922.46, is to be paid out of the residue of the deceased's estate. 6. The Notice of Motion filed on 4 December 2009 on behalf of the interim administrator is dismissed. 7. Declaration that each of the Transfers signed by George Grant and by Agnes Grant on 23 June 2003, and referred to in the proceedings (Docs 47, 48 and 49 in Exhibit A1), is void and of no effect. 8. No order as to the first defendants' costs of the proceedings, to the intent that they pay their own costs. 9. Note the Orders made, and the agreements noted, in the proceedings numbered 2008/279864, filed on behalf of the first defendant, Yvette Catherine Binetter, pursuant to which she is to receive a lump sum out of the estate of the deceased of $1,875,000 inclusive of her costs. In proceedings 2008/279864: 1. Robert Grant is appointed to represent the estate of George Grant for the purpose of the proceedings. 2. In lieu of the provision made for the plaintiff in the will of the deceased, the plaintiff is to receive a lump sum in the sum of $1,875,000 (one million eight hundred and seventy five thousand dollars). 3. Interest as for the unpaid legacies under the Probate and Administration Act 1898 is to run on so much of the provision herein as remains unpaid from 3 calendar months from the date of the making of these orders, such interest to be calculated on and from 3 calendar months from the date of the making of these orders. 4. The defendant's costs on an indemnity basis are to be paid out of the estate of the deceased. 5. Note that the plaintiff is to bear her own costs of the proceedings. 6. Note the release by the plaintiff under section 31 of the Family Provision Act 1982, of her rights to bring a further claim against the estate of the deceased and the estate of Agnes Grant. 7. The release of rights by the plaintiff as noted in paragraph 6 is approved pursuant to section 31 of the Family Provision Act 1982. 8. Further compliance by the parties with Supreme Court Rule Schedule J is dispensed with. 9. Note the agreement between the parties made on 19 March 2010.

[15]

3 On 8 March 2010, the hearing of proceedings numbers 2007/273194, 2007/282381 and 2007/282382 commenced. Mr Hallen SC announced his appearance with Mr Hodgson on behalf of the plaintiff, and Mr Ellison SC announced his appearance on behalf of the defendants. Mr Stinson announced his appearance on behalf of Trust Company Fiduciary Services Limited (formerly Permanent Trustee Company Limited) ("Trust"), which is the executor named in Agnes' will of 16 January 2002, now Exhibit B, and in George's will of 30 January 2002, now Exhibit C. Mr P Brand appeared on behalf of Perpetual Trustee Company Limited, the executor appointed as an interim administrator pending resolution of the disputes. 4 Mr Hallen then opened the case for the plaintiff, having provided a detailed outline of the case in writing and other documents which, taken together, provided the Court with a comprehensive view of the matters in issue, both factual and legal. 5 Following a request by the parties, I allowed them some time for discussion, and I was subsequently informed that the matter had been resolved. Mr Hallen announced the terms of the settlement. I read from the transcript of 8 March 2010, starting at T23 line 9: "HALLEN: Could I indicate to your Honour what the nature of the resolution is because it is binding on both the parties? HIS HONOUR: Yes. HALLEN: First, that there will be a grant of probate in solemn form of the will of Agnes Grant dated 16 January 2002, there will be a grant of probate in solemn form of the will of George Grant of 30 January 2002, there will be consequential orders in relation to remitting the matter to the Registrar to complete the grant and the plaintiff's costs of the proceedings, and also, in fairness, probably the second defendant's costs of the proceedings. I had indicated to your Honour earlier, there were other proceedings commenced by Yvette in relation to a claim under the Family Provision Act. The only eligible persons are Yvette and Robert. Under the 2002 will of George Yvette receives $600,000 plus the CPI. The parties have agreed that in lieu of that provision she will receive a lump sum of $1,875,000 and from that amount she will pay her own costs of the probate proceedings and the Family Provision Act proceedings. There will also be a release of rights to make any further claims under the Family Provision Act or any other Act by Yvette and the time for payment interest-free will be three months from the date of the actual probate parchment. ELLISON: From today. HALLEN: All right, three months from today. We will inform Mr Brand and also Mr Stinson of the nature of the settlement and provide them with any drafts of the order we propose to ask your Honour to make. So we will have orders made in the probate proceedings which will deal with the two wills to which I have referred." 6 The 2002 wills, Exhibits B and C, were tendered. Earlier wills were also tendered, and at T24 lines 23 to 26, Mr Hallen said: "it is intended that Mr Binetter will be a party to a release also. So the intention is that on settlement of the case today everything will be resolved between the parties and with the hope, certainly on our side, that in time it all can be put behind them and they can move forward." 7 I should also quote from the transcript at T25 lines 31 to 33. Mr Ellison said that he had two things to mention. The first was: "Because of Mr Michael Binetter's involvement, I need to ascertain his availability this afternoon to sign any documents." 8 At the parties' request, I listed the matter for 10 o'clock the following day. They accepted that the Court would need to give consideration as to whether the grant of probate of the 2002 wills in each case was appropriate, Mr Hallen relying on what was contained in his outline but indicating that he would wish to provide more assistance to the Court in that regard. The parties were not ready to hand up consent orders on Tuesday at 10am as envisaged, and by consent I adjourned the matter several times and ultimately to 10am on Friday 12 March.

[39]

32 As Einstein J noted in the case of In the Estate of Strange (unreported, Supreme Court of New South Wales, 26 November 1997), very difficult questions can arise as to the mental capacity of a person of advanced years. These cases can involve minute examination of the testator's ability to understand and comprehend a document, and the line between having sufficient testamentary capacity notwithstanding some degree of deterioration and not having sufficient testamentary capacity can sometimes be a very difficult one to draw. 33 There is no question as to the mental capacity of Agnes at the time of execution of the 2002, 2003 or 2005 wills. There is a significant question mark over the execution by both Agnes and George of their 2005 wills. 34 In respect of the 2003 wills of Agnes and George, in addition to the question of the extent of deterioration of George's mental capacity by the time the 2003 will came to be executed, there is a significant attack mounted by Robert in relation to the circumstances in which the will came to be prepared, the involvement of Michael, the radical departure in those wills from provisions standing for a long period prior to that date, and the nature of other documentation prepared by Michael in relation to a joint tenancy of property. I do not for present purposes need to form any view about whether these matters would be made out, but rather need only be satisfied that there was a bona fide case put forward by Robert to attack the 2003 wills of Agnes and George, and put forward by Yvette to attack the 2005 wills of Agnes and George. 35 Having regard then to: (1) the apparent due execution of the 2002 wills of Agnes and George; (2) the evidence of due execution from Ms Yarrington; (3) the agreement of all those potentially affected by the grant of probate of the 2002 wills of Agnes and George, and the undoubted competency of counsel advising the parties; (4) the existence of bona fide attacks on later wills; (5) the fact that although George was diagnosed with moderate dementia shortly prior to execution of the 2002 will, that will did not involve a radical departure from his prior will made in 1999, at which time there is no evidence of any dementia, and that the 2002 will was prepared by wholly independent lawyers employed by Trust; I regard it as appropriate to make the orders sought by the parties.

Grant v Binetter

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