Smith v Tamworth City Council

5481/03 FELIX PRIVET v. LEONID VOVK - ESTATE OF LATE MARIA LENDVAI JUDGMENT 1 HIS HONOUR: Maria Lendvai, late of 46-48 Rossford Avenue, Jannali, died on 14 October 2003. At the end of her life she was a patient in the Ferndale Nursing Home at Mortdale and for some weeks before that she was a patient in Sutherland Hospital after suffering a stroke in April 2003. After suffering the stroke she was always in a dependent situation. 2 The remains of the deceased have not been disposed of by burial or cremation and are in the keeping of a funeral director. The plaintiff, Felix Privet, claims to be the executor appointed under a will of the deceased made on 22 February 2002 and asks the court for a declaration that he is at liberty to proceed to the cremation of the body of the deceased in accordance with her wishes as set out in paragraph 8 of that will. The plaintiff's claim is in substance, although not in the form of the summons by which he approaches to the court, ancillary to an overall claim that he should be granted probate of that document and as executor should have responsibility for administration of her estate. If not entitled to probate as executor he would claim to be entitled to administration as the husband of the deceased, having gone through a marriage ceremony with her on 13 June 2003 while she was a patient in Sutherland Hospital. 3 The defendant is the son of the deceased. He was not appointed executor of the deceased under any known testamentary paper, but he is a beneficiary for a substantial amount according to the terms of the document of 22 February 2002, and he was residuary legatee of the earlier testamentary document of 2 June 1991, now exhibit B, which appointed Mr John Miller and Mr Michael John Smith to be executors; Mr John Miller should be taken to be identical with Mr John Meller, who has given evidence in the application before me. If those persons did not apply for probate of the will dated 2 June 1991, the defendant, as the son of the deceased and principal beneficiary, would have standing to apply for Letters of Administration of that document. 4 To date (and relatively little time has passed) the persons appointed under the will of 2 June 1991 have not put forward claims that it ought to be admitted to probate, and in the absence of any other claimant the defendant, as the closest blood relative of the deceased, is an appropriate person to put forward the contrary position to that which the plaintiff contends for, and may well be an appropriate party in the contemplated probate litigation. 5 The present proceedings, notwithstanding their form, are essentially interlocutory, and any declaration or direction that I make will have the effect of an interlocutory direction relating to the administration of the estate of the deceased pending a decision of the court as to grant of probate or administration of her estate. A decision on the grant of representation could only be reached after elaborate consideration of issues. Involved in that consideration would be a decision on the validity of the marriage celebrated or purportedly celebrated on 13 June 2003. Both the question whether probate should be granted and of what document and the question whether the marriage was valid are questions which could only be settled satisfactorily by a formal process leading to a judgment having effect in rem so as to bind the whole world. The present hasty proceedings are an altogether unsatisfactory vehicle for coming to a conclusion which would finally bind either the world at large or these parties to any conclusion made in it, and I do not attempt to do so. 6 The proceedings were commenced on 28 October 2003. The parties first came before me on 30 October and I conducted the proceedings with as much expedition as could well be arranged, as I am of the view that it is the court's duty in the public interest to see to the decent disposal of human remains and to do so as early as may be possible, so as to avoid or minimise scandal and indecency associated with delay. 7 I propose to address the question whether I should give an interlocutory direction generally to the effect of the declaration claimed on the basis on which the Court usually approaches interlocutory applications for orders which will affect, even though only for the interim, the rights of parties, that is, by addressing the nature and strength of the plaintiff's case and the balance of convenience. 8 The evidence read before me makes it plain that the admissibility to probate of the document dated 22 February 2002 is reasonably open to dispute. There is no evidence dealing in detail or at all with the manner in which the document was brought into being, the circumstances of its drafting and preparation or the giving of instructions by the deceased for its preparation, nor is there evidence of its being read by her or read over to her or of her otherwise being appropriately acquainted with its contents. The evidence about its execution is quite bare. It was given by Cecilie Farkas, whose evidence is that she is a very long time associate of the deceased; she is roughly a contemporary of the deceased and has, as her evidence would show, known her for over 50 years. However her relevant evidence deals only with the circumstances of execution and attestation of the document. 9 The association of the plaintiff with the preparation and execution of the document, having regard to very large benefits which it confers on him, itself calls for careful scrutiny of the document before it is accepted. The requirement for careful scrutiny would be enhanced if evidence showed that he himself prepared or had a significant part in the preparation of the document, whether as to choice of language or as to its being typed out; that is a subject on which his evidence does not embark. Internal material in the document, particularly when compared with the will of 2 June 1991, provides further indications of the need for scrutiny. At many points the document uses language which suggests professional drafting. However these usually echo expressions in the earlier document. At other points the document shows preparation with considerable lack of facility, and this points away from availability of professional assistance, a striking example being the appointment of "Patrick Timbs & Company" as an alternative executor and trustee. The appointment of a firm rather than a named individual is a blunder of which professional persons would be unlikely to be capable. There are also misspellings here and there, overtypings and alterations and infelicities in enumeration which point against professional preparation. 10 There are further circumstances which indicate that the document is reasonably open to challenge. The principal matter referred to by the defendant's counsel in this context was the conferral on the plaintiff of large benefits, as matters turn out the greater part, by a considerable degree, in value of the assets, on the basis of what he says is a relatively short relationship after an earlier acquaintance, the relationship beginning some time in 2001 and being a year or so in duration by the time of the date which the document bears. The plaintiff's evidence is not at all clear about what the relationship was, and there are considerable improbabilities against the deceased having decided, on the basis of a relationship formed so late in life (and she was even then about 80 years of age), against conferring large benefits on her son with whom she had a longstanding and good relationship, who in his turn has descendants of his own with whom she had a good relationship, and for whom the experiences of her earlier life gave her even stronger than usual motivations for holding high regard. 11 Other circumstances which indicate the need for scrutiny of the document include that the plaintiff and his relationship with the deceased were not known to a number of associates of the deceased who, as their evidence prima facie shows, were in quite close and frequent contact with her and were likely to be aware of a close personal relationship with the plaintiff of such intensity as to move her to leave him most of her property. The defendant's counsel also pointed to a number of other circumstances, relating for example to the display of photographs in the deceased's dwelling and to statements attributed to her by witnesses about whether she ever would remarry, which also have a part, although a less prominent part, in the foreshadowed challenge to the document. 12 Provisions of the document relating to the deceased's wish for the disposition of her remains have had considerable attention during the hearing. In my understanding of the law wishes expressed by a deceased person, whether in a testamentary document or otherwise, are not binding on the persons on whom the duty falls of disposing of the remains and will not be enforced by a court. The following passage appears to show that the plaintiff's claim that as executor he is entitled to conduct arrangements for disposition of the remains is justified: If a person has named an executor in his or her will and that person is ready, willing and able to arrange for the burial of the deceased's body, the person named as executor has the right to do so. 13 This passage is taken from the judgment of Mr Justice Young in Smith v Tamworth City Council (1997)41 NSWLR 680 at 693 and is the opening passage in the table of conclusions which his Honour drew after a survey of the relatively modest stock of case law and judicial experience on this subject. In my understanding the case law supports the view that if the plaintiff does not establish that he is in a position to make decisions about the funeral and disposition of the deceased's remains, a person with a claim to administration would do so; this is alluded to in the fourth of Justice Young's propositions at page 694 and is supported by other judicial decisions, including Burns & Anor v Richards (1993) 7 Butterworths Property Reports 15104 (Justice Cohen). Of course involved in the authority recognized by the law of an executor to make such decisions is a lack of legal effect of statements by the deceased about wishes as to funeral arrangements and disposition of remains. 14 In the document of 22 February 2002 paragraph 8 says: It is my wish that my funeral be a christian service of a most simple nature and that I be cremated, and the ashes be kept by my future husband Felix Privet to be taken to Switzerland, where I always wanted to live, and placed in his family's vault. 15 The first part of this paragraph echoes the opening words of clause 5 in the will of 2 June 1991, including the wish for cremation; in that case the wish was: ...that I be cremated and the ashes be given to my son, the said Leonid Vovk, and placed in my father's grave in the USSR. 16 As it happens the deceased's wish that her remains be cremated, confirmed as it is by the terms of the earlier will, is one of the relatively few facts of this case which are open to little doubt. 17 The defendant has disputed the appropriate means of disposition of the remains by pointing, through evidence of his own and of several other persons, to the practice of the Russian Orthodox Church against cremation. As it is not within the power of the court to control the means of disposition I will not give a decision on associated issues, that is, whether the deceased in truth was all her life an adherent to the Russian Orthodox Church, whether she became an adherent of the Roman Catholic Church, or whether adherence to either or a change has any implication for understanding whether she truly wished for her remains to be cremated. The evidence before me about her religious adherence does not suggest an outcome in any clear way. 18 My view is that the plaintiff's prospects of obtaining probate of the document of 22 February 2002 are not at all strong and do not have much weight in support of his claim that the Court should recognize that control of the funeral and of arrangements for disposition of the remains are in his hands. Alternatively he would claim to be entitled to control those matters as the widower of the deceased. This proposition depends on the validity of the marriage ceremony performed on 13 June 2003. If the document of 22 February 2002 in truth was the last will of the deceased, the marriage would not, in my opinion, have revoked it because it contains a number of expressions which look forward to a marriage with the plaintiff and with fair certainty should be held to bring the document, if it is a will, within the provisions of subss 15(3) and (4) of the Wills Probate and Administration Act, 1898 and within the exception for which they provide from revocation by later marriage. If the document failed, however, it would be necessary to address the legal effects of the marriage. A valid marriage would revoke the will dated 2 June 1991, which is not expressed to be made in contemplation of any marriage. 19 I propose to proceed on the assumption, which is far from having been established, that where the question whether a marriage was effectual or was void arises in the course of probate proceedings, the court has jurisdiction to determine it. My view that this is open to doubt arises from provisions of the Family Law Act, 1975 (Cwth) which in the definition of matrimonial cause in subsection 4(1) includes: (b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise;

and elsewhere invests courts with jurisdiction to decide matrimonial causes, but does not, under any provisions of the Family Law Act still in effect, confer any such jurisdiction on this court. The conceivable complexities of final resolution of the question whether this court can decide in the course of a probate suit that a marriage not otherwise annulled was void include the possibility that some constitutional question may arise. 20 Section 51 of the Family Law Act, 1975 has the effect that the test for a decree of nullity of marriage is to be based on grounds ascertained by provisions of s.23B of the Marriage Act 1961 (Cwth) which deals among other things with circumstances in which a marriage is void, in particular section 23B(1)(d)(iii) to the effect that a marriage is void where "(d) the consent of either of the parties is not a real consent because: . . . (iii) that a party is mentally incapable of understanding the nature and effect of the marriage ceremony; ... 21 At the time of the ceremony the deceased was a hospital patient in Sutherland Hospital and had been so for some weeks, perhaps two months, after suffering a stroke of such severity that she remained in her house for several days, perhaps three days, alone, unassisted and incapable of calling for assistance. According to the plaintiff's account, the subject of their marrying had been discussed, had indeed been initiated by the deceased from about June 2001 onwards, and he had at first deferred decision and then at some time in 2001 told her that they would marry after his 59th birthday, which was to occur on 25 September 2003. Then his evidence is that after the deceased had been in hospital for a couple of weeks there was a conversation about marriage in which she said to him: I want you to marry me now, as it would give me a reason to live - you are my lifeline. Will you marry me now?

And he agreed that he would marry her and would arrange the marriage. 22 The arrangements took the somewhat unusual course that Judith Naunton, the celebrant whose services he first sought on 9 May 2003, after making some preparation to conduct the ceremony, seeing the plaintiff several times and making some arrangements to prepare documents (and, I interpose, the documents she did prepare, a Statutory Declaration and a Notice of Intended Marriage, contain a number of marked anomalies), attended the hospital herself in the absence of the plaintiff on 9 June 2003 and spoke with the deceased, who responded in strange and inconsequential ways indicating that she did not bring her attention to bear on a proposed marriage ceremony. After this event Ms Naunton came to the view that she would not conduct a marriage ceremony and withdrew from preparations to do so. A few days later the ceremony was conducted by another celebrant who, so far as appears, had not had the advantage of an earlier interview with the deceased. 23 The plaintiff himself does not deal in detail in his evidence with events at the marriage ceremony. Cecilie Farkas, whose affidavit the plaintiff read, does give some details of her being present at the ceremony on 13 June 2003, another person whom she described as a friend of the deceased, Ellen Wilson, being present with the marriage celebrant and the marriage celebrant's wife. Ms Farkas gives evidence of a conversation a day or two before the wedding, the terms of which would show that the deceased was looking forward to getting married. She also describes the marriage ceremony itself in terms which appear to show that it was uneventful and unremarkable, with an appropriate statement about her feelings by the deceased to the plaintiff, a gift of rings and her signature on the marriage certificate. 24 Ms Farkas says "...the deceased's writing was different after she had the stroke", and refers to her signature on the marriage certificate in support of this. No doubt this observation is correct. This can be seen by the non-expert eye by comparing examples of the deceased's signature with the signature on the marriage certificate, which appears to use the surname Privet and is in a shaky hand, such as it might well be supposed would be the handwriting of a person who had suffered a stroke. There is a remarkable difference between that signature and the signatures of the deceased as they appear on the will of 2 June 1991 and on the document of 22 February 2002. Even more remarkably different to the signature on the marriage certificate is the signature attributed to the deceased as "Signature of Bride" on the form of Notice of Intended Marriage given by the plaintiff to Ms Naunton, the first celebrant, although not signed in Ms Naunton's presence; that signature appears to show no sign whatever of deteriorated handwriting after stroke. 25 A preliminary report of Mr Paul Westwood on results of inspecting a facsimile reproduction of the document of 22 February 2002 and reproductions of a number of other signatures of or attributed to the deceased casts doubt on whether the signature on the document of 22 February 2002 is in fact that of the deceased. Mr Westwood says: 14. In the light of the number and the nature of the differences noted above, I have concluded that the three questioned signatures reproduced on Q1 are unlikely to have been written in original form by the writer of the specimen signatures. 26 Mr Westwood's opinion has little influence on my conclusion because it is qualified, pre-final and expressed on examination of reproductions and not of the original document. However it is significant for my decision at several places that I regard it as evident, even to the untrained eye, that signatures attributed to the deceased at several places are questionable. 27 After the events of 13 June and the short interval of seventeen days, the Guardianship Tribunal made a close examination of the circumstances of the deceased and made orders, among other things, that she be placed under guardianship and that her estate be placed under management. The reasons of the tribunal set out facts which appear to provide a very strong basis for making those orders, and also show that the tribunal had before it information about the marriage and information from the plaintiff himself about the relationship between himself and the deceased, as well as information from a number of other sources. 28 Of particular present importance is that the tribunal had before it a report of 23 June 2003 from Dr Dennis Cordato, a neurologist, expressing the opinion that the deceased was "incapable of making financial and personal decisions at present, due to the effects of a large right middle cerebral artery infarct." His report gave a history which included a diagnosis of severe left hemiparesis and made the observation that the deceased "had fluctuating clarity of thought throughout her hospital stay." He gave the result of an examination which placed her "in the severe cognitive impairment range", and expressed the opinion "that her disability limits her ability to manage her own life decisions in circumstances in relation to finances and property." 29 A speech pathologist's report available to the tribunal concluded: Mrs Lendvai has moderate to severe comprehension deficits and moderate deficits in expressive language. 30 There were reports from several sources of what, in the words of the occupational therapist's report, was "non-reality orientated conversation." Several witnesses and sources give striking instances of such events during the hospital stay and, indeed, earlier. Among other things, the tribunal interviewed the deceased herself and she spoke in terms which referred to herself as married, but in the context of statements which showed marked disorientation and profound confusion. 31 My view is that the prospects of the plaintiff establishing an entitlement to administration of the estate of the deceased on the basis of the marriage ceremony of 13 June 2003 are very poor, and the likelihood is that on a full examination of the events it would be determined that the deceased did not then have the capacity to enter into a marriage. For these reasons I am not prepared to make any order of the kind which the plaintiff seeks. 32 It appears to me that in the absence of any other person, such as the executors appointed by the will of 1991, claiming to conduct estate affairs pending the grant of representation in some form, it is appropriate that the defendant, the closest blood relative of the deceased and a potential claimant for administration, be given a direction by the court to proceed to make arrangements for funeral and disposition of the body of the deceased. For reasons which will appear from earlier observations, I am not disposed to carry the direction to any detail with respect to whether the ceremony is conducted according to the forms of the Russian Orthodox Church or the Roman Catholic Church or any particular forms, and whether the disposition of the body be by burial or by cremation. The defendant may choose any lawful means of disposition. 33 The orders are: 1. I dismiss claim 1 in the summons. 2. I direct that the defendant make arrangements for the funeral of the deceased and the disposition of the body of the deceased. 3. I direct that the proceedings continue as a claim in solemn form by the plaintiff for probate of the document dated 22 February 2002, the statement of claim to be filed and served within twenty-eight days. I further direct that in those proceedings the defendants be John Miller or Meller, Michael John Smith, Leonid Vovk, and any other persons whom the plaintiff may think proper to join as defendants. 4. I order that the plaintiff pay the defendant's costs of the application today. 5. Other than exhibits A and B, the exhibits are to be handed out. Exhibits A and B will be kept in an envelope with the file. If they are to be handed out for inspection by a questioned document examiner, the leave of a registrar must first be obtained. 6. The proceedings are to be listed before the Registrar of Probates for directions on completion of the pleadings, but any party may apply to the registrar for directions on two days notice. **********

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