Gates v Preece

[2006] NSWSC 238

CITATION:	Gates v Preece [2006] NSWSC 238
HEARING DATE(S):	3 April 2006
JUDGMENT DATE :	3 April 2006
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
EX TEMPORE JUDGMENT DATE:	04/03/2006
DECISION:	Orders made ex parte
CATCHWORDS:	SUCCESSION – WILLS PROBATE AND ADMINISTRATION – construction and effect of testamentary dispositions – beneficiary witnessing will – persons who would take on intestacy unable to be located – strong case for making order under section 13(2) Wills, Probate and Administration Act 1898 – whether appropriate to make orders ex parte – PROCEDURE – Supreme Court procedure – parties – whether appropriate to make order under section 13 Wills, Probate and Administration Act ex parte
LEGISLATION CITED:	Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Wills, Probate and Administration Act 1898
CASES CITED:	Tonkiss & Anor v Graham & Anor [2002] NSWSC 891
PARTIES:	Frank Gerard Gates - Plaintiff Bernadette Therese Preece as Executor of The Estate of the Late Lydia Peters - Defendant
FILE NUMBER(S):	SC 103676/06
COUNSEL:	M Lawson, ex parte - Plaintiff
SOLICITORS:	Alex Mijovich & Associates - Plaintiff Submitting Appearance - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

CAMPBELL J

MONDAY 3 APRIL 2006

103676/06 FRANK GERARD GATES v BERNADETTE THERESE PREECE AS EXECUTOR OF THE ESTATE OF THE LATE LYDIA PETERS

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application for a declaration under section 13(2)(c)(i) of the Wills, Probate and Administration Act1898. It arises in the estate of the late Lydia Peters, who died 7 September 2002. She was a widow at the date of her death, her husband having died in the early 1980s.

2 The will in relation to which the order is sought is a document dated 14 September 1996. Under that document, the testatrix appointed her nephew Frank Gates and her niece Bernadette Preece as executors and trustees. She gave the whole of her estate to her sister Ella. There was a substitutionary gift, under which, if Ella predeceased her, the whole of her estate was subdivided between her five nieces and nephews, of whom Frank Gates was one.

3 At the specific request of a solicitor, who should have known better, Mr Gates was one of the witnesses to the will. As that solicitor has not put his account of events before me, I refrain from naming him.

4 The deceased had in her lifetime one child, Vivian Katrinka Addenbrooke. Vivian died on 15 December 1978. She left surviving her two children, Richard Addenbrooke and Andrew Addenbrooke, then aged three years and one year.

5 If there were to be a partial intestacy in consequence of Frank Gates having witnessed the will, it would be Richard Addenbrooke and Andrew Addenbrooke who would take the one-fifth of the estate which went on intestacy.

6 In these proceedings, Frank Gates is the plaintiff. He has renounced any claim to be executor of the estate. The sole named defendant is his sister Bernadette Preece. She has obtained a grant of probate of the will, on 27 November 2002. She submits to any order which the Court might make.

7 There is evidence from each of the nieces and nephews, who are residuary beneficiaries under the will, and concerning whom there is no doubt as to the validity of their gifts. Each of them gives evidence that they do not know the whereabouts of Richard and Andrew Addenbrooke, nor do they know how to get in contact with them. Gregory Gates, one of the beneficiaries, gives evidence after a conversation when he was 16 or 17 years of age, when the testatrix referred to the fact that her daughter had had children when the testatrix said concerning those children “I don't know where they are now. I have never been involved in their lives.”

8 The solicitor for the plaintiff has made attempts to contact the two grandchildren of the testatrix. She has conducted searches of the Electoral Commission rolls. She found entries for “Richard Addenbrooke” and “Andrew Addenbrooke”, at addresses in Lennox Head, and Dulwich, South Australia. She wrote to those addresses, but has received no reply. She has searched in the telephone book for R Addenbrooke and A Addenbrooke, and found there were no A Addenbrookes, and such R Addenbrookes as she was able to contact did not have Richard as their first name. In September 2004 she placed an advertisement in the Sydney Morning Herald, requesting any person knowing the whereabouts of Richard Addenbrooke and/or Andrew Addenbrooke, the sons of Vivian Katrinka Addenbrooke and grandsons of Lydia Peters, to contact her. That advertisement produced a nil response.

9 The evidence in support of the application shows that each of the four undoubted residuary beneficiaries consents to it. I do not give that fact any weight at all, as they would not stand to lose if the application were to be granted.

10 The only sibling of the testatrix was Ella Gates, the mother of the various residuary beneficiaries. She died on 27 January 2002.

11 The testatrix's relatives were of Russian parentage and tended to move within the family circle. Bernadette Preece is not aware of any friends or acquaintances of the deceased outside her mother, and her own siblings.

12 There is evidence of the nieces and nephews of the testatrix, and in particular Frank Gates, providing her services during her lifetime, particularly after she entered a nursing home. Thus, there is nothing surprising or in itself suspicious about the terms of the will.

13 There is evidence about the circumstances of execution of the will. The solicitor who drafted the will, and who requested the plaintiff to sign it, attended the nursing home at Manly where the testatrix was then living. He read the will out to the testatrix, in the presence of the plaintiff. It was in the course of that reading that the plaintiff first became aware that he was named as a beneficiary. He did not know that created any legal problem. And, in any event, he did not expect to receive any benefit under the estate, because his mother was 18 or 20 years younger than the testatrix, and his mother appeared to be always in much better health and more active than the testatrix.

14 The testatrix appeared to listen intently as the solicitor read the will to her. At all times up to the date of execution of the will, the deceased had never appeared to Mr Gates to be anything other than fully lucid and in complete control of her mental faculties. He had no reason to doubt whether she understood what the solicitor was reading to her. Upon the completion of the reading of the will, she said to the solicitor, “That’s good. Show me where to sign”, and went ahead and signed it.

15 In most litigation, if those who stand to lose on the making of a Court order are not actually served with the Court process, it is necessary to appoint someone to represent their interests. Litigation under section 13 of the Wills, Probate and Administration Act is in a different situation, however. Part 78 rule 34B Supreme Court Rules provides:

“(1) The originating process on an application for an order under section 13(2)(c) of the Probate Act shall not join as a defendant:
(a) any person, where any plaintiff is the sole executor or administrator,
(b) any person, where there is sufficient reason for not doing so.
(2) Notwithstanding subrule (1), the Court may, at any stage of the proceedings, direct that any person be added as a party or substituted for another party or a former party or that notice of the proceedings be served on any person in addition to or instead of the defendant.
…
(4) Rule 7.6 of the Uniform Civil Procedure Rules 2005 (which relates to representative orders) applies to proceedings for an order under section 13(2)(c) of the Probate Act as it applies to proceedings mentioned in subrule (1) of that rule.”

16 As well, Rule 7.12 Uniform Civil Procedure Rules 2005 provides:

“(1) In proceedings relating to an estate, all persons having a beneficial interest in or claim against the estate need not be parties, but the plaintiff may make parties of such of those persons as he or she thinks fit.”

Here, as already mentioned, a grant of representation has been made.

17 It is not completely uncommon for all people interested in the making of an order under section 13(2) to be not actually named as parties to proceedings. While the Court is hesitant about deciding any proceedings, when interested persons have not been notified of the proceedings or covered by a representative order, the present is a suitable case, in my view, to not require the making of any representative order. Every reasonable avenue through which the testatrix's grandchildren could be tracked down has been tried without avail.

18 As well, the case for the making of an order is a particularly strong one. I will not repeat here the legal tests relevant to making such an order which I considered in Tonkiss & Anor v Graham & Anor [2002] NSWSC 891 at [66] ff. In the present case there is no basis for any suspicion that perhaps the testatrix might not have known and approved the will, or that she did not freely and voluntarily make the gift to Frank Gates contained in it.

19 I mention also that counsel informs me that the distributed estate is of the order of $200,000, so the one-fifth share of the residue is worth of the order of $40,000. In those circumstances, it is appropriate to take the step of making the declaration ex parte.

20 I declare that the Court is satisfied that Lydia Peters knew and approved of the gift to the plaintiff under her last will and testament dated 14 September 1996. I order that the defendant, as executor of the estate of the late Lydia Peters, distribute a one-fifth share in the assets of the estate to the plaintiff.

21 I order that the costs of the plaintiff of these proceedings be paid by the defendant, and that the defendant recoup those costs from the share of the plaintiff under the will.

22 That order is made without prejudice to the possibility of any claim being made that the costs of these proceedings be borne by a third party.

23 In the event that the plaintiff decides to make any such application I grant leave for it to be made by Notice of Motion in these proceedings. If any such Notice of Motion is desired to be brought, I direct that it be filed and served by 5pm Monday, 10 April 2006. I appoint Friday 21 April 2006 before me for directions concerning the hearing of any such Notice of Motion.

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