21 – 25, 30 November 2022; Further evidence and submissions 7, 8 December 2022
Date of orders:
9 December 2022
Decision date:
09 December 2022
Jurisdiction:
Equity - Probate List
Before:
Meek J
Decision:
Orders made consequent upon proposed settlement of contested probate claim
Catchwords:
PROBATE — Deceased makes various Wills —Contest in respect of Wills made in 2019, 2016 and 2015 (probate claim) — Related proceedings regarding an alleged promise of benefit to a friend of the deceased arising out of what is said to be relationship of personal care and an agreement giving rise to a benefit (care benefit claim) — Parties to probate claim propose resolution of the claim on basis that executors entitled to grant seek to renounce and an attorney grant issue of a copy of penultimate Will sought to be rectified out of time — Issues arising in respect of these and other aspects of proposed settlement of probate claim
PROBATE — Principles informing whether Court should accept proposed compromised settlement of probate claim — Whether Court should pass over last Will of deceased — Whether evidence of forgetfulness suffices to pass over final Will — consideration of other evidence impacting cognitive capacity
PROBATE — Original of 2016 Will missing — Grant of administration proposed in respect of copy of Will — Principles regarding proof of ‘lost’ Wills — Principles regarding the presumption of revocation
PROBATE — Claim for rectification of — Principles regarding rectification and extension of time
EXECUTORS — Executors under last Will also nominated as executors under penultimate will — Executors seek to renounce after propounding all Wills under which they are nominated and engaging in partly contested hearing in respect of determination of which Will is the last valid Will — Principles regarding renunciation — Whether executors entitled to renounce
GRANTS — Rectified will names executrix outside jurisdiction — Principles regarding attorney grant — no production of proposed power of attorney — Whether signed proposed orders constitute sufficient nomination of proposed solicitor to take grant
PROBATE — Interests of various parties affected by proposed settlement — Consideration of whether non-active parties and beneficiaries served with Notices of Proceedings are bound by the outcome
GRANT — Parties propose a special grant of administration pending issue of letters of administration with the Will annexed — Whether appropriate to issue special grant
GRANT — Ancillary issues — Whether administration bond should be dispensed with — Costs
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bear v Bear; Jordan v Bear [2022] NSWSC 1687
Case
[2022] NSWSC 1687
Decision Date
CaseChat Overview and Summary
In the case of Bear v Bear; Jordan v Bear, the dispute primarily revolves around the validity of various wills made by the deceased, along with claims for benefits arising from a personal care relationship. The case was heard in the Supreme Court of New South Wales. The first probate claim concerns the wills made in 2019, 2016, and 2015, while the second, related claim involves an alleged promise of benefit to a friend of the deceased. The parties proposed a resolution where the executors renounce and an attorney grant is issued based on a rectified copy of the penultimate will. The court was tasked with deciding several legal issues, including whether to accept the proposed settlement, whether to pass over the last will, and if the evidence of the deceased's forgetfulness was sufficient to do so. The original 2016 will was missing, and the court needed to consider the principles regarding proof of lost wills and the presumption of revocation. Additionally, the principles governing rectification and extension of time for the will, as well as the ability of executors to renounce and the principles of attorney grants, were examined.
The court found that the principles guiding the acceptance of a compromised settlement of the probate claim included ensuring fairness to all parties involved and adherence to the statutory framework. The court determined that passing over the last will of the deceased was not appropriate, given the evidence of the deceased's cognitive capacity and other factors. The court also ruled that the evidence of forgetfulness alone was insufficient to pass over the final will. Regarding the missing 2016 will, the court outlined the principles for proving lost wills and considered the presumption of revocation. The principles of rectification and extension of time were applied, allowing for the rectification of the will naming an executrix outside the jurisdiction. The executors' right to renounce was assessed, and the principles of attorney grants were considered in light of the unsigned power of attorney. The court further examined whether non-active parties and beneficiaries were bound by the outcome of the proceedings and decided on the appropriateness of issuing a special grant of administration pending the issuance of letters of administration with the will annexed.
The court's final orders included the renouncing of the executors, the issuance of an attorney grant, and the rectification of the will naming the executrix. The court also addressed ancillary issues such as dispensing with the administration bond and the allocation of costs. The court ensured that all parties' interests were considered and ruled on the appropriate steps for granting administration and the implications of the proposed settlement for all involved parties.