Daniel Henry Resler Walton by his Tutor John Mann v Terence George Hartmann as Executor of the Estate of Wanda Resler

[2020] NSWSC 1932

Supreme Court

New South Wales

Medium Neutral Citation:

Daniel Henry Resler Walton by his Tutor John Mann v Terence George Hartmann as Executor of the Estate of Wanda Resler [2020] NSWSC 1932

Hearing dates:

11 December 2020

Date of orders:

11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

Orders made – Settlements approved

Catchwords:

SUCCESSION – Contested Probate – Family Provision – Approval of settlement of proceedings

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 73, 76

Succession Act2006 (NSW) s 59

Cases Cited:

Daniel Henry Resler Walton by his Tutor John Mann v Terence George Hartmann as Executor of the Estate of Wanda Resler [2020] NSWSC 1628

David Resler Walton by his tutor John Mann v Terence Hartman as executor of the estate of Wanda Resler [2019] NSWSC 1749

Category:

Consequential orders

Parties:

D Walton by his tutor John Mann (plaintiff by his tutor)
T Hartmann (defendant)

Representation:

Counsel:
D Walton (self-represented with McKenzie Friend, P Thorsby)
L Ellison SC, D Liebhold (tutor)
J Brown (defendant)

Solicitors:
T Goldberg, Turner Freeman (tutor)

File Number(s):

2016/98010
2016/318514

Publication restriction:

n/a

judgment- ex tempore

1. Before me this morning is an application for the approval of the settlement of two sets of proceedings. One set of proceedings relate to a family provision claim. The other is in relation to probate proceedings. Both are brought by John Alexander Mann as tutor for Daniel Walton.

2. Mr Walton is the grandson of Wanda Resler (the deceased) who died on 30 April 2015.

3. Probate of the deceased’s will made on 10 April 2008 and a codicil dated 29 July 2014 was granted to Terence George Hartmann and Elizabeth Josephine Svenne on 12 November 2015 in common form.

4. Certain provision had been made under the will for Mr Walton but by Summons filed on 31 March 2016 he sought an order pursuant to s 59 of the Succession Act2006 (NSW) that he receive additional provision out of the Estate (matter no. 2016/0098010).

5. By Amended Statement of Claim on 20 December 2016 he sought orders revoking the grant of probate of the 2008 will and 2014 codicil and in lieu a grant of probate in solemn form of the will of the deceased dated 17 March 2003 (matter no.2016/00318514).

6. On 9 February 2018 pursuant to a judgment I gave on 21 September 2017 Mr Mann was appointed as tutor in those proceedings.

7. Two attempts were made to either replace or remove the tutor. I dismissed both proceedings (Walton by his tutor v Hartmann [2019] NSWSC 1749 and Walton by his tutor v Hartmann [2020] NSWSC 1628).

8. Both proceedings have settled. The evidence before the court comprises an affidavit of Mr Mann, the tutor, dated 31 August 2020, an affidavit of Mr Goldberg, solicitor, dated 27 August 2020, together with an exhibit TLG1.

9. I was also provided with a confidential advice by counsel for the tutor together with certain proposed orders.

10. The executor moves the court on a notice of motion filed 23 April 2020 seeking certain orders including an approval of the settlement reached between the respective parties to both claims pursuant to ss 73 and 76 of the Civil Procedure Act 2005 (NSW). Filed in support is an affidavit of Terence Hartmann of 9 November 2020.

11. I should note that although Mr Walton was represented by his tutor he was present by phone during the hearing.

12. As I indicated when I made the orders, I had read all of the materials carefully including the confidential advice (with which I agree). The settlements arrived at are prudent, reasonable and appropriate in the interests of justice given the nature of the claims and the state of the available evidence. Therefore, it is in my view in the best interests of the plaintiff for the tutor to compromise the claims accordingly.

13. I note that the confidential advice received by the court should remain as such and not be released or disclosed to any person without the leave of the court.

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