Barratt v Foran
[2013] VSC 420
•22 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PROBATE LIST
S PRB 2011 13287
IN THE MATTER of the Will and Estate of PAUL MASON HODGES, deceased
| JOANNE MAREE BARRATT | Plaintiff |
| v | |
| CERIDWEN MARY FORAN | First Defendant |
| EVAN MORRIS REES | Second Defendant |
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JUDGE: | McMILLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2013 | |
DATE OF JUDGMENT: | 22 August 2013 | |
CASE MAY BE CITED AS: | Barratt v Foran | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 420 | |
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WILLS AND ESTATES – Refusal by the plaintiff to comply with Terms of Settlement executed by the parties – Plaintiff alleges that the defendants misappropriated certain assets of the deceased’s estate – Application by the defendants to enforce the terms – Whether the terms should be enforced by the Court
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Cook | Dunemann Sutherland Pty |
| For the Defendants | Mr S Newton | Wills and Probate Victoria, Lawyers |
HER HONOUR:
Introduction
This proceeding was commenced because the plaintiff and the defendants disagreed as to whether the will of Paul Mason Hodges (‘the deceased’) made in 1980 (‘the penultimate will’) or an informal will purported to be made in 2007 (‘the informal will’), should be admitted to probate and thus govern the distribution of the estate of the deceased.
On 14 September 2012, the plaintiff and the defendants executed Terms of Settlement (‘the Terms of Settlement’) whereby the parties agreed, among other things, that Letters of Administration with the informal will annexed would be granted to the plaintiff and that the plaintiff would pay the defendants the sum of $710 000 out of the estate within six months of the grant.
Letters of Administration with the informal will annexed were granted to the plaintiff on 15 November 2012. Under the Terms of Settlement, the payment of $710 000 was due to be paid by the plaintiff on 16 May 2013. The plaintiff has failed to pay this amount.
The plaintiff’s reason for her failure to pay the amount is that the defendants have misappropriated a number of valuable items which belonged to the deceased. She alleges that the defendants took these items from the home of the deceased in Brighton East.[1]
[1]Affidavit of Joanne Maree Barratt sworn 23 July 2012, [11].
By summons, the defendants seek orders that the plaintiff comply with the Terms of Settlement.
The plaintiff submits that the Court should dismiss the defendants’ application and order that the parties attend another mediation, and, if that fails, order that the matter be set down for trial.
Background
After the death of the deceased on 2 September 2011, the defendants secured the deceased’s home pursuant to the penultimate will, which they had believed was the deceased’s last will. The first defendant deposed, and I accept, that upon entering the home, they found that:
The deceased had been living in very squalid and unclean conditions. We started to clean out the property and disposed of rubbish. Photographs of the house were taken before anything was removed. Anything of value was appraised by Jack’s of Hampton at a total of $2 000. Nothing was removed other than rubbish save for the deceased’s mother’s ashes which were removed and dealt with according to her wishes and placed in a pre-paid niche at Springvale Cemetery.
Some months later the plaintiff threatened to report us to the police and the cleaning process stopped.[2]
[2]Affidavit of Ceridwen Mary Foran, affirmed 6 June 2013, [24]–[25].
It is not necessary to recount what the defendants’ found upon entering the deceased’s home, but needless to say that the state of the premises would have been very distressing for the deceased’s family.[3]
[3]Ibid Exhibit CMF 18.
On 20 September 2011, the plaintiff filed an originating motion for a grant of administration with the informal will annexed and filed an inventory of assets and liabilities. The inventory filed records that the deceased’s personal assets are worth $2 200. In her affidavit of the same date, the plaintiff also deposed that the personal estate of the deceased is to the value of $2 200.[4]
[4]Ibid Exhibit CMF 12.
An updated inventory of assets and liabilities was filed by the plaintiff on 7 November 2011 and records that the total personal assets of the deceased is $1 831.50. In her affidavit of that date, she deposes to the same amount.[5]
[5]Ibid Exhibit CMF 13.
The plaintiff first raised allegations about misappropriation of the deceased’s personal chattels by way of the affidavit of her solicitor, Jeffrey Dunemann, sworn on 8 December 2011. In this affidavit, Mr Dunemann deposed that:
I am instructed that the deceased’s personal chattels have been taken by members of his family and distributed amongst his estate. I am instructed that these chattels included valuable art works and pieces of furniture and I believe the same should be returned to the estate.[6]
[6]Ibid Exhibit CMF 14.
On the same day, the plaintiff deposed that she had read Mr Dunemann’s affidavit and that its contents were true and correct.[7]
[7]Ibid Exhibit CMF 15.
On 9 December 2011, Habersberger J ordered that Letters of Administration ad colligendum bona be granted to the plaintiff’s solicitor. Under the heading ‘Other Matters’ in the orders, it is recorded that ‘The allegation that the deceased’s personal chattels have been distributed has been denied by the beneficiaries under the deceased’s [penultimate] will’.
Pursuant to the interim grant, the defendants gave to the plaintiff’s solicitor for his safekeeping all the items of value they recovered from the deceased’s property. The plaintiff’s solicitor put these items in a self-storage facility.[8]
[8]Ibid Exhibit CMF 19.
As stated, on 14 September 2012, the Terms of Settlement were executed by the parties. As well as the provision for the payment of $710 000 to the defendants within six months of the grant of Letters of Administration with the informal will annexed to the plaintiff, the Terms of Settlement also set out what will happen to the chattels which formed part of the estate. Part B of the Schedule to the Terms provides that:
The chattels and other belongings of the deceased held by the plaintiff’s solicitor shall be distributed:
(a) the gramophone and porcelain pot and painting of Buffalo River (if there) shall be made available for collection by the defendants;
(b)the plaintiff and then the defendant may select such items as they shall [illegible] after which the balance shall be disposed of.[9]
[9]Ibid Exhibit CMF 1.
The plaintiff was represented by Mr Dunemann and counsel at the mediation.[10]
[10]Ibid [15].
Mr Dunemann deposed that on 15 September 2012, he, the plaintiff, and the plaintiff’s friend visited the self-storage facility where all the chattels from the deceased’s house were stored. After a ‘comprehensive’ inspection of the goods, he deposed that ‘the plaintiff commented to me that what she was looking at was “a pile of junk” and that there was nothing of value located there’.[11] Notably, there is no evidence that the plaintiff, at this stage, complained that any of the deceased’s personal belongings were missing.
[11]Affidavit of Jeffrey Lewis Dunemann, sworn 23 July 2013.
The Allegations of the Plaintiff
Some time after the execution of Terms of Settlement, the plaintiff has renewed her allegations that the defendants, without her knowledge, took a number of valuable items from the home of the deceased after his death.
The plaintiff now claims that at the mediation, the defendants ‘tricked’ her into believing all these items were in the chattels that formed part of the estate, and that she would take these items into her possession.[12]
[12]Affidavit of Ceridwen Mary Foran, affirmed 6 June 2013, [14].
The plaintiff has not set out exactly what items she claims were taken by the defendants. She sent a number of letters to the defendants that are not entirely consistent, as set out below.
In a letter dated 13 February 2013, the plaintiff alleged that ‘many items … are missing from the property’ and that ‘nearly all valuable items are not mentioned and are missing’.[13] She did not set out what items she said were missing.
[13]Ibid Exhibit CMF 3.
In response to a request to itemise the missing items, she wrote in a letter on 12 March 2013 that:
The number of items in the house at the time of his death which are missing is to [sic] numerous to mention and your clients claims that they secured the assets is a cover up by your clients in an attempt to conceal the many items, which have not been returned to me.
At mediation your clients tricked me into believing all items were present and accounted for, this is not the case … All valuable items of jewellery are missing and what was handed over is a load of rubbish.[14]
[14]Ibid Exhibit CMF 5.
She attached a list titled ‘Some of the Valuable Items Missing’ to this letter. The list had the following seven items:
1. Mikimoto pear necklace and earrings
2. Diamond & sapphire ring
3. Stamp collection
4. 1930 Penny
5. Margaret’s Ashes
6. Ivory statues
7. Wine collection[15]
[15]Ibid Exhibit CMF 5.
After another letter from the defendants requesting the plaintiff comply with the Terms of Settlement, the plaintiff sent a letter dated 8 April 2013 providing more detail of her allegations:
Immediately after [the Deceased’s] death your clients entered & removed all valuable items from the property being fully aware they were not beneficiaries of the estate under the terms of the later Will & the valuable items have not been handed over.
When signing the agreement on 15th November 2012 your clients agreed to hand over all items they illegally removed.[16]
[16]Ibid Exhibit CMF 7.
She attached a longer and more detailed summary and estimated value of some of the items removed from the property:
All memorabilia items collected from world trips which were displayed in a glass cabinet in sitting room $10 000.
1930 penny which was [the Deceased’s] prize possession obtained by his father and kept along with the house deeds in a sealed plastic bag in a case in the drawer of the sideboard situated in the dining room $750 000 minimum
Beautiful diamond & sapphire ring which was originally his mother’s $5 000.
Stamp collection which was left to the deceased by his late father $5 000 minimum.
[The deceased’s] wine collection which included many vintage bottles of expensive wine $10 000.
[The deceased’s] mother’s Mikimoto peal necklace and earrings $3 000.00
[The deceased’s] mother’s wedding ring, engagement ring, eternity ring and the many other beautiful pieces belonging to his mother $20 000.
[The deceased’s] late father’s coin collection is missing all the valuable coins and only the non valuable coins have been returned $100 000.
[The deceased’s] Seiko watch which he was wearing at the time of his death $100.
Many items of furniture which was stored in the garage at the rear of the property $3000.
[The deceased’s] mother’s ashes which were stored in an urn above the fireplace on the mantelpiece (sentimental).
There are many items too numerous to mention which are remembered by me but are not included in the goods that were handed over. Infact [sic] all items handed over are just a load of rubbish and all valuable items are missing.[17]
[17]Ibid Exhibit CMF 7.
The plaintiff has provided three affidavits as evidence of the existence of these items: one sworn by her; another sworn by the son of the plaintiff and deceased, Jesse Barratt; and the third sworn by Anthony Rickards, a friend of the deceased.
The plaintiff deposes that:
It had been the intention of the deceased to sell his Brighton home and move to Byron Bay. I purchased large plastic tubs and during the last year or so of the life of the deceased we went through the chattels and belongings contained at his home and packed them into these plastic tubs.
I was present at the Brighton home of the deceased with the deceased 10 days before his death and was aware of the valuable items referred to in my letter of 8 April 2013 to the Defendant’s solicitors … had not been disposed of by the deceased.[18]
[18]Affidavit of Joanne Maree Barratt, sworn 20 June 2013, [5]–[6].
Curiously, evidence of the deceased’s intention to move to Byron Bay and the packing up of the deceased’s possessions was not mentioned in the plaintiff’s earlier affidavit sworn in support of her application to have the informal will admitted to probate. Rather, in this earlier affidavit the plaintiff states:
The deceased and I discussed him coming to live with me on a permanent basis in Queensland. He declined and explained that he preferred the Melbourne climate, he had the company of his friends and their families, he enjoyed the sporting and social opportunities in Melbourne and that he would continue in his own well established routine.
…
In August 2011 I went to Melbourne … and the deceased and I stayed together at Elwood. He had a bad cough and I insisted that he see a doctor about it. He refused and said he would get over it …[19]
[19]Affidavit of Joanne Maree Barratt, sworn 24 February 2012, [17], [26].
After the death of the deceased, the plaintiff deposes that the defendants entered the home and:
... systematically destroy[ed] the interior of the house as they searched for anything of value owned by the deceased. When I first entered the house after the death of the deceased I found that there was mess everywhere and that everything had been pulled out and turned over and even the built in dishwasher had been ripped out of its place.
…
I say that the Defendants were aware when the deceased’s mother was alive and living at the East Brighton home she kept large amounts of cash in that house. I say that the Defendants would not have been aware that the Defendants were looking for cash when they destroyed the inside of the home.[20]
[20]Affidavit of Joanne Maree Barratt, sworn 23 July 2013, [3]–[4].
She further deposes that she could not understand why the defendants only had eight of the items valued, as there ‘were at least 100 valuable items contained at the deceased’s home’.[21] She deposes that when she prepared the inventories of chattels in the affidavits prepared prior to the mediation without the assistance of a lawyer, she:
… mistakenly believed that I only had to list items that would be subject to official or legal transfer procedures. I believe the Defendants took advantage of my naivety when they saw the inventories that I had prepared when they removed and retained the items of value about which I now complain.[22]
[21]Ibid [5].
[22]Ibid [7].
In relation to the valuable items which she listed in her letters to the defendants in early 2013, she deposes that:
During her lifetime the deceased’s mother kept her jewellery at bank safety deposit facilities. The deceased closed these safe deposit boxes shortly after her death and then kept her jewellery in two small steel boxes similar to petty cash tins. Neither of those boxes were contained within the goods returned to the estate by the deceased.
The 1930 penny that was owned by the deceased was kept in the centre drawer of a dining room sideboard in a small box together with a certificate of authenticity and the title deeds to the properties owned by the deceased. Neither the coin nor the title deeds were located in the deceased’s house and were not contained within the goods returned by the Defendants.[23]
[23]Ibid [8]–[9].
The plaintiff also deposes that:
I have viewed a DVD of the memorial service held for the deceased at the Kooyong Tennis Club. I say that a substantial part of the deceased’s football memorabilia was present at that memorial service and I have now been informed that it was given away at the memorial service by the Defendants. I say that the Defendants had previously removed that football memorabilia from the deceased’s home. That memorabilia consisted of framed AFL jumpers, framed signed AFL team photographs and a substantial number of AFL scarves, hats, beanies, badges and the like.[24]
[24]Ibid [6].
She deposes that had she been aware that the items were not contained in the deceased’s chattels released by the defendants, she would never have agreed to the Terms of Settlement.
Mr Barratt also deposed the following as to the existence of the valuable items:
Although only a child I can recall visiting my father [and] his mother, my grandmother, at their home … My grandmother was always very well dressed and always wore pearls around her neck and jewellery on her hands and wrist. I believe that all of this jewellery was retained by my father after the death of my grandfather as it was not his practice to sell anything or give anything away.
I recall in recent years visiting my father at his East Brighton home and I say that on those occasions the house was cluttered with many ornaments and chattels such as vases, dishes, glassware, trays and the like. My father told me that these had been left to him, by my grandmother …
My father had a large coin and stamp collection which he told me he had inherited from his father who worked in a bank and which he told me contained many valuable coins … I recall my father showing me a coin in a small box which he informed was very rare and I recall this coin although covered in plastic had a man wearing a crown on it. I am not aware that this was the 1930 penny that my father owned … Other coins that my father owned were kept in folders and I now recall had a much brighter lustre than the other copper coins and I now realize these coins were made from gold.
I turned 21 years of age on 9 July 2011 and at that time I visited my father in Melbourne and went to his home in East Brighton. We spoke of many things and he once again showed me his 1930 penny. At the time I was not much interested but I recall him saying to me ‘you could buy a house with this’.[25]
[25]Affidavit of Jesse Barratt, sworn 13 July 2013, [4]–[7].
Finally, Mr Rickards deposes that he believed that many of the items in the house of the deceased were valuable.[26] In particular, he deposed that the deceased had told him that he had a ‘very rare 1930 penny which his father procured during his time as an Executive with the ANZ Bank’.[27] He also deposed that the deceased:
had a large collection of football memorabilia which after his death was donated by his friends by Ceridwen Foran and Evan Rees and this was given away at his funeral memorial service.[28]
[26]Affidavit of Anthony Rickards, sworn 23 July 2013, [8].
[27]Ibid [10].
[28]Ibid [15].
Should the Terms of Settlement be Enforced?
The plaintiff claims that it would be unconscionable to enforce the Terms of Settlement because she thought that the coin and other valuable items would be included in the chattels referred to in Part B of the Schedule to the Terms. She claims that the issue of the very valuable items did not come up during mediation, and that she assumed that they would be included in the chattels which formed part of the estate. After she agreed to these Terms, she discovered that the items were not there, and she submits that this mistake means that the Terms should not be enforced.
For the following reasons, in my view, the plaintiff should comply with the Terms of Settlement.
First, there is no evidence that prior to the mediation, the plaintiff believed that the items listed in her 2013 letters were part of the estate of the deceased. Neither of the plaintiff’s inventories of assets and liabilities, filed on 20 September and 7 November 2011, mention any of those items. I do not accept the plaintiff’s explanation that this was because she thought she only had to list items that had to be subject to official or legal transfer. The plaintiff has not articulated the basis for this belief, or the reason that she considered the items that she did list as subject to official or legal transfer.
Secondly, the plaintiff’s actions prior to the execution of the Terms of Settlement are inconsistent with her current allegations that the deceased owned a number items of substantial financial value. If the plaintiff believed that the deceased owned a coin worth $750 000 and other very valuable items, including any football memorabilia, or there were ‘chattels and belongings’ packed into plastic tubs by her and the deceased in the last year or so of his life, she failed to mention these particular items or matters at any point prior to the mediation.
Thirdly, the plaintiff failed to determine whether any valuable items were at the self-storage facility after Letters of Administration ad colligendum bona were granted to the plaintiff’s solicitor on 9 December 2011, some nine months prior to the mediation and she failed to complain to her solicitor that valuable items were missing from the self-storage facility upon her inspection, the day after the mediation.
In my view, the plaintiff’s actions support the conclusion that she had no such belief that the coins and other valuable items would be included in the chattels referred to in Part B of the Schedule to the Terms at the time of the mediation.
In any event, I consider it unlikely that a Court would find that the valuable items listed in the plaintiff’s 2013 letters formed part of his estate, or if the deceased had once owned these items, they were taken by the defendants.
The plaintiff has known since at least 9 December 2011 that the defendants denied her allegations that items have been misappropriated from the deceased’s estate. She has had time to find persuasive evidence to put before the Court as to the existence of any missing items. She has failed to do so. She has also failed to take any steps to issue proceedings to recover those items that she now alleges were part of the deceased’s estate, but has simply refused to transfer the $710 000 to the defendants under the Terms of Settlement signed by her.
In my view, there is no reliable evidence that any of the items listed by the plaintiff in her 2013 letters formed part of the estate of the deceased at the time of his death, aside from the ashes of the deceased’s mother. The defendants have deposed, and I accept, that those ashes were removed and dealt with in accordance with the wishes of the deceased’s mother. Otherwise, the plaintiff’s reference in a letter dated 8 April 2013 to a Seiko watch the deceased was allegedly wearing at the time of his death is the only mention of an allegedly ‘missing asset’ with the deceased at his death, and it is not part of her sworn evidence.
The plaintiff’s belief outlined in her affidavit sworn 23 July 2013 that the defendants essentially ‘ransacked’ the house after the deceased died, and prior to the plaintiff entering the deceased’s home, is a mere assertion. As against this, the defendants have deposed that the house was in a terrible state at the time of the deceased’s death; that photographs were taken before anything was removed; and that anything of value was duly recorded and appraised. I accept the defendants’ evidence, which is the only direct evidence as to the deceased’s estate at his death.
Furthermore, the plaintiff’s other evidence, in my view, does not support her allegations. Mr Rickards did not depose to the existence of the jewellery, and said the deceased had only told him of the existence of the 1930s penny. Mr Barratt, the plaintiff’s son, deposed that the deceased had a significant collection of jewellery and also a valuable coin collection. These are bald assertions and, as such, I find his evidence unpersuasive. In any case, as stated above, this is evidence only of assets that the deceased allegedly had during his lifetime, and not at the time of his death.
Conclusion
In determining the issues in this application, the plaintiff has the onus of proof on the balance of probabilities, subject to the principles in Briginshaw v Briginshaw.[29] Because of the importance and gravity of the issue, it is impossible for the Court to be reasonably satisfied of the truth of the plaintiff’s allegations ‘without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact’.[30]
[29] (1938) 60 CLR 336, 362. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 450 and s 140 of the Evidence Act 2008.
[30](1938) 60 CLR 336, 368–9 (Dixon J); 343 (Latham CJ); 350 (Rich J).
In my view, the plaintiff has failed to satisfy the onus of proof to the reasonable satisfaction of the Court. I do not accept that the plaintiff believed the valuable items outlined in her 2013 letters formed part of the estate of the deceased when the Terms of Settlement were executed. In any case, I conclude that the plaintiff’s allegation that the defendants improperly took valuable items from the deceased’s estate to be without foundation and that there is no persuasive evidence that those valuable items formed part of the deceased’s estate.
In my view, the Terms of Settlement should be enforced and the defendants are entitled to the payment of the sum of $710 000.
I will hear the parties as to the form of the orders and costs.
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