The Estate of Tatiana Anorov [2024] NSWSC 1301

Tatiana Anorov, Her Will, and Her Estate

1. Tatiana's generous gift of the whole of her estate to two Russian Orthodox clergy is partly explained by her personal background. Her grandparents were born in Russia but fled with White Russians from the advancing communist armies into Far Eastern Russia. They ultimately migrated for their safety across the border into an enclave of Russian speakers in Harbin in China. Their son, the father of Tatiana, Maria, and Olga, was a priest in the Russian Orthodox Church in Harbin. He died in Harbin when Tatiana, Maria and Olga were very young. After his death, their mother and her three daughters were supported in a Russian Orthodox Church monastery in Harbin until they migrated to Australia.
2. The three sisters migrated to Australia in their late teens and early 20s. Olga was the eldest at 23, Tatiana was about 20 and, Maria the youngest was about 17.
3. When she was in the mid-20s Tatiana married Oleg Anorov, who worked in finance. Oleg had been married briefly before he married Tatiana. But when Oleg and his first wife separated his first wife was pregnant. She later had a son, Roman. Tatiana and Oleg did not have children of their own. Such evidence as is now available suggests that Oleg never had contact with his son Roman, and that Tatiana did not meet him either and knew nothing of his family.
4. The two sisters, Maria and Tatiana saw much of one another. Oleg died in July 1987, leaving Tatiana well-off financially with two properties, one in Villawood and one in Strathfield, together with investments and bank term deposits.
5. Unsurprisingly given her background, Tatiana continued to regard Russian Orthodox clergy very highly and was a regular churchgoer. The Russian Orthodox Church split in Australia and Tatiana followed the branch not associated with the church in Moscow, the branch with whom the plaintiffs were associated.
6. The issues in the probate proceedings arose in part out of Maria's evidence that, in about 2010 to 2012 Tatiana's health began to decline and she developed hallucinatory visions of people, some of whom were associated with the church. Maria thought that Tatiana was becoming mentally unstable and becoming heavily influenced by members of the branch of the Russian Orthodox Church associated with the plaintiffs. The plaintiffs disputed this contention.
7. As was earlier indicated, this probate contest was complicated by the bringing of four claims for further provision out of Tatiana's estate. The Court made orders for all these claims to be heard together. The four family provision claims were as follows. Two of the claims were brought by children of her siblings, Maria, and Olga - George and Sophia. And two were brought by half-siblings of her late husband, Oleg. These reasons will briefly identify the relationship of each of these claimants to Tatiana.
8. Sophia Stepanov, one of Maria's daughters, had resided with Tatiana before her death and George Erzikoff, one of Olga's children, had similarly resided with Tatiana grounding their family provision claims.
9. Family provision claims were also brought by Oleg's half-brother, Arcady Nemtzeff, and half-sister, Julie Heidler. They were children of Oleg's mother, Valentina, but by different fathers. Each claimed that they had resided with Oleg and Tatiana, grounding their family provision claims.
10. These various family provision proceedings were as follows, Sophia (proceedings number 2022/72683), George (proceedings number 2023/26051), Arcady (proceedings number 2022/74321), and Julie (proceedings number 2022/74324). All proceedings were listed for the five-day hearing commencing before Richmond J on 1 May 2023.
11. Maria also filed a Cross-Claim in the probate proceedings (proceedings number 2021/1557971) seeking to set aside Tatiana's 2014 will and to have the estate administered upon intestacy. Ultimately, her son George, the second defendant, took over carriage of the defence of the probate proceedings and the Cross-Claim.
12. Had Tatiana died intestate, because she left no spouse, no issue and no parent, her estate would have been divided, as to a half share to Maria and, as to the other half share, equally among Olga's children: Succession Act, s 129. Olga had three children, George, Sergey and Alexis. But Alexis had died and his son, Joshua Travers was the claimant to his share.
13. In late April, before the commencement of the five-day hearing before Richmond J on 1 May, the parties reached a compromise of the various proceedings, which is reflected in the Settlement Agreement to which there was annexed Short Minutes of Order in each of the five proceedings, to give effect to the Settlement Agreement. Richardson J made the consent orders in the probate proceedings, which reflected certain agreed distributions from the estate between the parties under the Settlement Agreement and made lump sum or other provisions for each of the family provision claimants in accordance with the Settlement Agreement.
14. Probate of the August 2014 will was granted to the plaintiffs, in accordance with the Settlement Agreement on 7 July 2023. The gross value of the estate was sworn at $3.8 million. Some $1 million of the estate had been the subject of an interim distribution order.
15. Soon after the plaintiffs commenced to administer Tatiana's estate, on 4 August 2023, Roman Anorov commenced proceedings for provision from the estate, some 17 months out of time. Though unrelated to Tatiana by blood, Roman asserted he had lived with Oleg and Tatiana between 1976 and 1982. Other family members disputed this. Arcady and Maria advanced evidence that in their recollection Roman had never lived with Tatiana and Oleg. Some evidence supported the inference that Oleg had intended Roman to share in his estate had Tatiana predeceased him. Strangely Roman did not make a claim on Oleg's estate when Oleg died in 1987.
16. Rather than contest a long-running family provision claim, the plaintiffs decided to resolve Roman's claim by paying him $100,000. But in defending the claim they incurred some $140,000 in costs. Thus, after the Settlement Agreement, the plaintiffs incurred a total of $240,000 in costs in respect of Roman's claim.
17. The present dispute is whether under the terms of the Settlement Agreement, the whole of that $240,000 should be borne by the plaintiffs, without any recourse to the defendants or, whether some of those expenses should be shared by the defendants under the terms of the Settlement Agreement.
18. The Short Minutes of Order made in the probate proceedings and the four family provision proceedings reflect the terms of the Settlement Agreement. The parties' submissions have tended to focus upon the consent orders made in the probate proceedings. But the consent orders in the probate proceedings are just one emanation of the orders authorised by the Settlement Agreement.
19. As the source of the parties' respective obligations is the Settlement Agreement itself, that is the agreement that the Court must construe, and it is now set out below. The parties to the agreement hereby agree as follows:- (1) For the purposes of distribution of the estate of the deceased the "net distributable estate" is the sum arrived at after payment of the plaintiffs' costs (including the scale costs of obtaining probate), funeral costs, liabilities and testamentary expenses including the costs and disbursements, the costs and disbursements (including agent's commission) referrable to the sale of the estate realty, any taxation (including capital gains tax) payable by the estate (including in respect of income earned by the deceased during her lifetime) and the costs and disbursements payable to the interim administrator Anthea Kennedy. (2) The plaintiffs and the defendants agree to seek from the Court orders in accordance with the Short Minutes attached to this agreement. The said Short Minutes:- (i) Provide for a Grant of Probate of the Will of the deceased of 1 August 2014 to the plaintiffs. (ii) Provide for a variation of the Will by way of a Family Provision Order in favour of Ms Sofia Stepanov; and Mr George Erzikoff. (iii) Provide for the costs of the plaintiffs to be paid from the estate and to provide for the defendants to bear their own costs of the proceedings. (3) In consideration of each defendant consenting to the orders and notations herein 40% of the net distributable estate is to be dealt with by the plaintiffs as follows: (a) First, $250,000 is to be applied to the settlement of the associated proceedings 2022/00074321 (Arcady Nemtzeff) leaving the "distributable portion"; (b) 20% of the distributable portion to be paid to Maria Stepanov in her own right; (c) 16.65% of the distributable portion to be paid to Sergey Erzikoff in his own right; (d) 16.65% of the distributable portion to be paid to Joshua Travers in his own right; (e) 16.7% of the distributable portion to be paid to George Erzikoff in his own right being his entitlement under consent orders in proceedings 2023/00026051; (f) 30% of the distributable portion to be paid to Sofia Stepanov in her own right being her entitlement under consent orders in proceedings 2022/00072683. (4) The plaintiffs release Sofia Stepanov from any claim arising from or relating to her occupation of the estate property at 17 Homebush Rd, Strathfield NSW 213 5. (5) The obligation of the plaintiffs to make payment of the sums set out in paragraphs (3)(b), (c) and (d) above are agreed by the parties to be the same as the obligations that would bear upon them as executors if the said sums were payable under the will of the deceased. (6) The sums payable by the plaintiffs described above shall be charged upon the Estate. (7) The plaintiffs agree to make an interim distribution of the amounts payable under paragraphs 3(b) to (f) inclusive should it be practicable to do so. (8) The sums payable by the plaintiffs described at paragraphs 3(b), 3(c), 3(d), 3(e) and 3(f) above, including any interim distribution as contemplated by order (7), shall be paid by the plaintiffs in to the trust account of the solicitor for George Erzikoff, Ms Elyse White.
20. Clauses 1 and 3 of the Settlement Agreement were reproduced in virtually identical terms respectively in orders 6 and 7 of the consent orders made in the probate proceedings.
21. George filed the present motion on 23 April 2024, seeking relief under Civil Procedure Act 2005, s 73(1), concerning the terms upon which the probate proceedings were settled. The motion sought an order that "having regard to the definition of 'net distributable estate'" at order 6 of the consent orders made on 1 May 2023 that: "The parties identified at Order 7 of the 1 May 2023 Consent Orders do not bear 40% (or any other proportion) of the costs of matters not identified in Order 6, and in particular do not bear the burden of [costs in Roman Anorov's proceedings or payments made to him]…"
22. The motion also seeks that the costs of the motion be paid out of the plaintiffs' share of the estate.

Submissions and Analysis

1. The first question to be addressed is procedural. George brought his motion dated 23 April 2024 and filed on 8 May 2024 for relief under Civil Procedure Act 2005, s 73 which provides as follows: (1) In any proceedings, the court - (a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and (b) may make such orders as it considers appropriate to give effect to any such determination. (2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question.
2. The plaintiffs submitted that the Court does not have the power to make orders sought by the applicant on the motion, as the present question does not relate under Civil Procedure Act 2005, s 73 to "whether the proceedings have been compromised" or "what orders are appropriate to give effect to the compromised agreement" and that George's application is misconceived.
3. The Court does not accept this submission for three reasons. First, since the enactment of Civil Procedure Act s 73, it has been made clear by authority that questions about whether proceedings have been compromised and on what terms, and if so, what orders are appropriate to give effect to the compromised agreement can be litigated in the same court in which the original proceedings were bought and such questions can be determined in the same proceedings: Katter v Melhem [2015] NSWCA 213 at [85] per Campbell JA, and see also Narayan v Narayan [2022] NSWSC 1685 per Kunc J at [9]-[11]. The present dispute appears to be a straightforward example of the Court being asked to determine "on what terms" these various proceedings have been compromised.
4. Secondly, as the suite of claims that were compromised in the Settlement Agreement included four family provision claims, the Court's broad power under the Succession Act, s 66(1) to make a wide range of orders "for the purposes of giving effect to the family provision order" is attracted as another source of relevant jurisdiction for the Court to determine these issues.
5. Thirdly, what is now raised is a question of construction of an agreement between these parties about which a dispute has arisen. Even if Civil Procedure Act, s 73 was not the right vehicle for the determination of these issues, the Court would apply Civil Procedure Act, s 14 and dispense with the requirements of the Uniform Civil Procedure Rules 2005 to permit the present motion brought under s 73 to be treated as a Summons originating proceedings for construction of the agreement. This is consistent with promoting the overriding purpose of the Civil Procedure Act and the Uniform Civil Procedure Rules to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Civil Procedure Act s 56.
6. The parties reduced their contentions to writing and briefly spoke to those contentions. Their written submissions conveniently encapsulate the arguments advanced on each side. George's principal contention is that the Settlement Agreement necessarily excludes the future costs of defending Roman's claim and the settlement payment to him, because those defence costs and the payment do not fall within the meaning of "testamentary expenses" in clause 6 of the consent orders in the probate proceedings (clause (1) of the Settlement Agreement). George asks that the parties, identified in order 7 of the probate consent orders (clause (1) of the Settlement Agreement) "do not bear 40% (or any other proportion)" of the effect of the defence costs of Roman's claim and the sum paid in settlement of Roman's claim. Clause 7 of the probate consent orders (clause (3) of the Settlement Agreement) refers to each of the family provision claimants and to persons who would otherwise take on intestacy.
7. George's submissions are concisely encapsulated in the written submissions of Ms P Lowson at paragraphs [42] to [54] as follows: 42. The only terms within which the plaintiffs realistically could bring the payment of costs and payment to Roman pursuant to Roman's claim are in paragraph 41(b) above - "…testamentary expenses". 43. George invites the Court to find that terms on which the parties settled the various proceedings on 1 May 2023 did not have the effect that the costs of defending Roman's claim, and payment to Roman, fell within the term "testamentary expenses". The meaning of "testamentary expenses" 44. The primary submission is that, the payment to Roman and the costs of defending his claim are not a "testamentary expense". 45. As neither the payment nor the costs of defending Roman's claim arise as a consequence of any act or omission of the testatrix, and noting that the payment to Roman has not been made within the terms of a family provision order, they are not "testamentary expenses". 46. Instead, the payment to Roman and incurring of costs occurred as an incident of the plaintiffs' actions, at their own initiative, to protect their share of the estate (being the balance of the estate available to the plaintiffs after payment of the net distributable estate to the Beneficiaries). 47. This submission is further supported by the fact that the plaintiffs did not seek nor procure the consent of the beneficiaries - George, Maria, Sofia, Sergey and Joshua - to the incurring of costs in defending Roman's claim, nor in relation to the payment of $100,000 to Roman in settlement of the claim. 48. The failure of the plaintiffs to include the beneficiaries in correspondence with the Court, thus denying them an opportunity to be heard in respect of the orders, is wholly consistent with the plaintiffs accepting that their dealings with Roman were solely within the plaintiffs' control, such that the costs and payment are also solely to be borne by the plaintiffs, and are not "testamentary expenses". Roman's Claim Not in Contemplation 49. The alternative submission is that the administrators' costs of defending Roman's claim, and the payment of Roman's expenses, do not fall within the meaning of "testamentary expenses" in the context of the Settlement Agreement entered into around 21 April 2023 and Consent Orders made by the Court on 1 May 2023. 50. In relation to the costs of defending Roman's claim: - although the Settlement Agreement does not contain a release clause as such, it is appropriate for the Court to apply similar principles to those applying in interpreting a release. This is because the Settlement Agreement involved George relinquishing his defence and cross claim against the plaintiffs' claim for probate of Tatiana's estate with the consequential benefit that the plaintiffs took the balance of the net distributable estate. 51. The principles relating to releases include that the wide words of a release should be constrained by the occasion. A release shall not be construed as applying to something of which the party executing it was ignorant4. 52. In this case, George was aware that the plaintiffs would incur testamentary expenses in obtaining probate and administering the estate to the extent of distributing the estate in accordance with the Settlement Agreement and the short minutes of orders, including in relation to the settlements with Julie and Arcady. This included the sale of the properties and associated tax liabilities. 53. What George (and the Beneficiaries) did not know, and could not reasonably have anticipated, was the incurring of costs in respect of an entirely new claim, nor payment made in settlement of such an unknown claim. 54. The phrase "net distributable estate" should be construed accordingly, such that testamentary expenses does not extend to expenses incurred by the plaintiffs in defending Roman's claim.
8. Ms Lowson spoke to these written submissions in similar terms.
9. The Court has not found George's submissions persuasive and the Court's analysis below draws in part upon the plaintiff's submissions in reply to George's submissions.
10. On behalf of the plaintiffs Mr Munro of counsel argues that the task before the Court is primarily one of construction and to determine the meaning of the words in the Settlement Agreement and that is an objective task to determine "what each party by words and conduct would have lead a reasonable person in the position of the other party to believe": Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52 at [36]-[42]; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 at [22].
11. The plaintiffs' submission is persuasive that the definition of "net distributable estate" in the Settlement Agreement includes "liabilities" and "testamentary expenses", both of which are not defined in the past tense but can in the ordinary meaning apply to liabilities and testamentary expenses emerging both before the date of the Settlement Agreement and up to the time of ultimate distribution of the estate. Indeed, the concept of "net distributable estate" embeds the idea of a future distribution taking place and liabilities accruing up to the date of that distribution.
12. The plaintiffs' submissions accept that as at the date of the Settlement Agreement, the parties did not expressly contemplate the estate having to meet the defence costs of Roman's claim or the settlement payment to Roman. But the plaintiffs submit that on its true construction clause (1) of the Settlement Agreement was intended to indemnify the executors from all amounts required to be paid out of the estate in discharge of their executorial duties past, present, and future. The plaintiffs further submit that it would be absurd to interpret clause (1) of the Settlement Agreement as limiting the amount authorised to be paid out to those liabilities and existing only at time of the orders. For example, the plaintiffs submit that it was common ground among the parties to the settlement agreement that the estate realty still had to be sold and the costs of sale could not be ascertained at the date of Settlement Agreement, nor could the tax liabilities that might arise upon the sale of these assets. Likewise, the plaintiffs submit the estate would incur ongoing expenses and liabilities including legal fees, bank fees and charges and the like.
13. This contention is persuasive. If the settlement agreement is to be construed the way that George contends, one would expect the terms to include some mechanism to identify and define how the liabilities which would be borne by parties other than the plaintiffs would be identified. For example, as at the date of the Settlement Agreement there may have been contingent liabilities that which had not yet been identified and notified by third parties to the executors/plaintiffs. Were these to be deducted before ascertaining the "net distributable estate"? The settlement agreement contains no mechanism to define where the boundary lay between liabilities and testamentary expenses covered by the Settlement Agreement, and those that were not.
14. Moreover, the plaintiffs' final argument is persuasive. They submit that quite apart from the defence costs of the payment to Roman falling within the ordinary meaning of the word "liabilities" they are also clearly "testamentary expenses" which are expenses incidental to the proper performance of the duty of the executor: Sharp v Lush (1879) 10 ChD 468 at 470. The plaintiffs point out that addressing and settling Roman's family provision claim were part of the proper performance of the plaintiffs' duties as executors and were therefore "testamentary expenses" that should be deducted before calculating the "net distributable estate" under the Settlement Agreement. And the Probate and Administration Act 1898, s 46C(2) for solvent estates of deceased persons permits the application of both real and personal estate "towards the discharge of all the funeral, testamentary and administrative expenses, debts and liabilities payable thereout", in the statutory order provided for in the third schedule of the Probate and Administration Act.
15. Notwithstanding that Roman's family provision claim was out of time, and may have had little evidence to corroborate it, the executors had a duty to address it. The Court has the power to extend time for an application for family provision order: Succession Act s 58(2). Roman's evidence may have been accepted by a court notwithstanding the lack of corroboration. The claim needed to be investigated as part of the executors' duty. The law encourages the compromise of litigation: Bartlett v Coomber [2008] NSWCA 100. The Succession Act encourages the settlement of family provision claims against the estates of deceased persons, Succession Act, s 98(1), as a statutory object, to the point that mediation of those disputes is made compulsory: Succession Act, s 98(2): see also, Jurak v Latham [2023] NSWSC 1318 at [156]-[159] per Meek J. Therefore, investigating family provision claims with a view to their compromise is clearly within the ordinary duties of an executor or administrator: Szlazco v Travine [2004] NSWSC 610 at [11]-[12] per Young CJ in Eq and Application of Ferdinando Scali [2010] NSWSC 1254, per Brereton J. And incurring expenses to that end were also therefore "testamentary expenses" that were incurred up to the time of distribution of the estate and should therefore be deducted in the calculation of "net distributable estate" under the Settlement Agreement.
16. Moreover, George's argument for excluding payments and expenses relating to Roman's claim is not as clear-cut as he makes out. Although Roman's claim had not been notified to the executors as at the date of the Settlement Agreement, it existed as a contingent but unnotified liability from the time of the deceased's death, including as at the date of the Settlement Agreement. It is only after the Settlement Agreement that the contingent liability was notified to the plaintiffs.
17. George has been unsuccessful on his motion of 21 April 2023. There appears to be no reason why the plaintiffs should not have their costs out of the estate on the indemnity basis in respect of this claim. Although they were defending their own interests, they were also seeking to uphold their justifiable right to an indemnity in respect of genuine testamentary expenses. Otherwise, costs would ordinarily follow the event. Orders reflecting that position have been made but are temporarily stayed below to give the parties an opportunity to put further argument in relation to costs including in relation to the cost capping order made on 24 May 2024.

Conclusion and Orders

1. Before giving judgment, the Court directed the parties to arrange for the joinder of all persons potentially affected by these orders as defendants or respondents to the motion of 8 May 2024 or as defendants in these proceedings. These orders are reflected below.
2. For these reasons Court makes the following declarations and orders: 1. ORDERS that Sergey Erzikoff, nephew of the deceased, be joined as third defendant to these proceedings, and third respondent to the motion filed on 8 May 2024 ("the Motion"). 2. ORDERS that Joshua Travers, great nephew of the deceased, be joined as fourth defendant to these proceedings, and fourth respondent to the Motion. 3. ORDERS that the following persons be joined as respondents to the Motion: 1. Sofia Stepanov, plaintiff in proceedings 2022/72683, as the fifth respondent; 2. Julie Heidler, plaintiff in proceedings 2022/26051 as the sixth respondent; and 3. Arcady Nemtzeff, plaintiff in proceedings 2022/74321 as the seventh respondent. 1. ORDERS the waiver of compliance with any Rule requiring the filing of proceedings formalising the joinders set out above. 2. DECLARES that upon the true construction of the settlement agreement made between the plaintiffs and the second defendant and various other persons on 21 April 2023 ("the settlement agreement") the expression "net distributable estate" is a net amount calculated by the deduction before distribution of "liabilities" and "testamentary expenses" which include all defence costs and settlement payments made in relation a family provision claim brought against the estate by Mr Roman Anorov after the date of making the settlement agreement; 3. ORDERS that the second defendant should pay the plaintiffs' costs of the second defendant's motion brought on 23 April 2024 in the sum of $7,000; and 4. ORDERS that the plaintiffs' costs of the second defendant's motion brought on 23 April 2024 should be paid out of the estate on the indemnity basis. 5. STAYS orders (6) and (7) until further order of the Court. 6. ORDERS that the stay in (8) be lifted.

Amendments 29 October 2024 - Amended Representation Amended paragraphs 17 and 45 so that "family provisions claims" be read as "family provision claims" Paragraph 20 - deleted "," after "because she left". Paragraph 33, end of fourth line - inserted "and' before "if so". Paragraph 42, last sentence - inserted "the" before the word "estate". Paragraph 43, last sentence - capitalised words "settlement agreement" to read as "Settlement Agreement". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2024