Grant v Binetter

[2010] NSWSC 278

CITATION:	Grant v Binetter [2010] NSWSC 278
HEARING DATE(S):	8, 12, 18 March 2010
JUDGMENT DATE :	18 March 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Rein J
DECISION:	In proceedings 2007/258301: 1. The Summons filed on 19 December 2007 is dismissed. 2. No order as to the costs (to the intent that each party bear their own costs). In proceedings 2007/273194: 1. The proceedings are dismissed. 2. The defendant's costs (i.e. the costs of Robert Grant), calculated on the indemnity basis, are to be paid out of the residue of the estate of George Grant. 3. No order as to the plaintiffs' costs of the proceedings, to the intent that they pay their own costs. In proceedings 2007/282381: 1. Probate, in solemn form, of the will of the deceased, Agnes Grant, made on 16 January 2002, is granted to the second defendant. 2. The matter is referred to the Registrar to complete the grant. 3. The plaintiffs' costs of the proceedings, calculated on the indemnity basis, is to be paid out of the residue of the estate of George Grant. 4. No order as to the second defendant's costs. 5. No order as to the first defendants' costs of the proceedings, to the intent that they pay their own costs. 6. The Notice of Motion filed on 4 December 2009 on behalf of the interim administrator is dismissed. 7. Declaration that each of the Transfers signed by George Grant and by Agnes Grant, and referred to in the proceedings (Docs 47, 48 and 49 in Exhibit A1), is void and of no effect. 8. Note the Orders made in the proceedings numbered 2007/273194 filed on behalf of the first defendants. 9. Note the Orders made and the agreements noted in the proceedings numbered 2007/258301 filed on behalf of the first defendant, Yvette Catherine Binetter. In proceedings 2007/282382: 1. Probate, in solemn form, of the will of the deceased, George Grant, made on 30 January 2002, is granted to the second defendant. 2. The matter is referred to the Registrar to complete the grant. 3. The Cross-Claim filed by the first defendants is dismissed. 4. The plaintiffs' costs of the proceedings, calculated on the indemnity basis, is to be paid out of the residue of the deceased's estate. 5. The second defendant's costs, assessed and agreed at $23,922.46, is to be paid out of the residue of the deceased's estate. 6. The Notice of Motion filed on 4 December 2009 on behalf of the interim administrator is dismissed. 7. Declaration that each of the Transfers signed by George Grant and by Agnes Grant on 23 June 2003, and referred to in the proceedings (Docs 47, 48 and 49 in Exhibit A1), is void and of no effect. 8. No order as to the first defendants' costs of the proceedings, to the intent that they pay their own costs. 9. Note the Orders made, and the agreements noted, in the proceedings numbered 2008/279864, filed on behalf of the first defendant, Yvette Catherine Binetter, pursuant to which she is to receive a lump sum out of the estate of the deceased of $1,875,000 inclusive of her costs. In proceedings 2008/279864: 1. Robert Grant is appointed to represent the estate of George Grant for the purpose of the proceedings. 2. In lieu of the provision made for the plaintiff in the will of the deceased, the plaintiff is to receive a lump sum in the sum of $1,875,000 (one million eight hundred and seventy five thousand dollars). 3. Interest as for the unpaid legacies under the Probate and Administration Act 1898 is to run on so much of the provision herein as remains unpaid from 3 calendar months from the date of the making of these orders, such interest to be calculated on and from 3 calendar months from the date of the making of these orders. 4. The defendant's costs on an indemnity basis are to be paid out of the estate of the deceased. 5. Note that the plaintiff is to bear her own costs of the proceedings. 6. Note the release by the plaintiff under section 31 of the Family Provision Act 1982, of her rights to bring a further claim against the estate of the deceased and the estate of Agnes Grant. 7. The release of rights by the plaintiff as noted in paragraph 6 is approved pursuant to section 31 of the Family Provision Act 1982. 8. Further compliance by the parties with Supreme Court Rule Schedule J is dispensed with. 9. Note the agreement between the parties made on 19 March 2010.
CATCHWORDS:	SUCCESSION - wills, probate and administration - probate and letters of administration - grants of probate and letters of administration - where proceedings settled - deed of settlement - terms of release of parties
LEGISLATION CITED:	Family Provision Act 1982 (NSW)
CASES CITED:	In Re Munn [1943] SASR 304 In the Estate of Edwards Deceased (1981) 28 SASR 380 In the Estate of Strange (unreported, Supreme Court of New South Wales, Einstein J, 26 November 1997) Oakes v Uzzell [1932] P 19 Philpott v Olney [2004] NSWSC 592 Re Levy Deceased (No 2) [1957] VR 662 Tolson v Hender [2009] WASC 319
PARTIES:	Robert Grant (plaintiff) Yvette Catherine Binetter (first defendant) Andrew Binetter (second defendant) Trust Company Fiduciary Services Limited (executor named in wills of 2002) Perpetual Trustee Company Limited (executor appointed as interim administrator)
FILE NUMBER(S):	SC 2007/258301; 2007/273194; 2007/282381; 2007/282382; 2008/279864
COUNSEL:	P Hallen SC, C Hodgson (plaintiff) L Ellison SC (defendants) J Stinson (Trust Company Fiduciary Services Limited) P Brand (Perpetual Trustee Company Limited)
SOLICITORS:	TressCox Lawyers (plaintiff) Argyle Lawyers Pty Ltd (defendants) Diamond Conway Lawyers (Trust Company Fiduciary Services Limited) Bartier Perry (Perpetual Trustee Company Limited)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 8, 12, 18 March 2010
Date of Judgment: 18 March 2010

2007/258301 Yvette Binetter v The Estate of the Late Agnes Grant (Deceased) and the Family Provision Act 1982
2007/273194 The Estate of Agnes Grant (Formerly Agnes Grunwald) Late of Dover Heights – Summons for Probate
2007/282381 Robert Grant v Yvette Catherine Binetter and Andrew Binetter
2007/282382 Robert Grant v Yvette Catherine Binetter and Andrew Binetter
2008/279864 Yvette Binetter v The Estate of the Late George Grant (Deceased) and the Family Provision Act 1982

JUDGMENT (EX TEMPORE)

1 REIN J: Agnes Grant (“Agnes”) and George Grant (“George”) died in 2006 and 2007 respectively. During the period from 1973 to 2005 they made a number of wills, and various proceedings were commenced by, first, their son Robert Grant, who I shall refer to as Robert, and their daughter Yvette Binetter (“Yvette”) and her husband Andrew Binetter (“Andrew”) (I shall refer to Yvetter and Andrew as the defendants) in relation to which wills should be the subject of a grant of probate. There were also Family Provision Act 1982 (“FPA”) proceedings commenced by Yvette. Only the probate proceedings were listed before me to commence on 8 March 2010. The proceedings were strongly contested, but the plaintiff and the defendants accepted that by 2005, George did not have testamentary capacity, and there were issues as to due attestation in respect of his will of 2005 and the will of Agnes of 2005.

2 In respect of the wills made in 2003 by Agnes and George, there was a significant contest about the circumstances in which the wills were drawn up by Michael Binetter (“Michael”), the brother of Andrew, and executed by Agnes and George, including what was said to be the radical departure in its terms from previous wills made by Agnes and George.

3 On 8 March 2010, the hearing of proceedings numbers 2007/273194, 2007/282381 and 2007/282382 commenced. Mr Hallen SC announced his appearance with Mr Hodgson on behalf of the plaintiff, and Mr Ellison SC announced his appearance on behalf of the defendants. Mr Stinson announced his appearance on behalf of Trust Company Fiduciary Services Limited (formerly Permanent Trustee Company Limited) (“Trust”), which is the executor named in Agnes’ will of 16 January 2002, now Exhibit B, and in George's will of 30 January 2002, now Exhibit C. Mr P Brand appeared on behalf of Perpetual Trustee Company Limited, the executor appointed as an interim administrator pending resolution of the disputes.

4 Mr Hallen then opened the case for the plaintiff, having provided a detailed outline of the case in writing and other documents which, taken together, provided the Court with a comprehensive view of the matters in issue, both factual and legal.

5 Following a request by the parties, I allowed them some time for discussion, and I was subsequently informed that the matter had been resolved. Mr Hallen announced the terms of the settlement. I read from the transcript of 8 March 2010, starting at T23 line 9:

“HALLEN: Could I indicate to your Honour what the nature of the resolution is because it is binding on both the parties?
HIS HONOUR: Yes.
HALLEN: First, that there will be a grant of probate in solemn form of the will of Agnes Grant dated 16 January 2002, there will be a grant of probate in solemn form of the will of George Grant of 30 January 2002, there will be consequential orders in relation to remitting the matter to the Registrar to complete the grant and the plaintiff's costs of the proceedings, and also, in fairness, probably the second defendant's costs of the proceedings.
I had indicated to your Honour earlier, there were other proceedings commenced by Yvette in relation to a claim under the Family Provision Act. The only eligible persons are Yvette and Robert. Under the 2002 will of George Yvette receives $600,000 plus the CPI. The parties have agreed that in lieu of that provision she will receive a lump sum of $1,875,000 and from that amount she will pay her own costs of the probate proceedings and the Family Provision Act proceedings. There will also be a release of rights to make any further claims under the Family Provision Act or any other Act by Yvette and the time for payment interest-free will be three months from the date of the actual probate parchment.
ELLISON: From today.
HALLEN: All right, three months from today. We will inform Mr Brand and also Mr Stinson of the nature of the settlement and provide them with any drafts of the order we propose to ask your Honour to make. So we will have orders made in the probate proceedings which will deal with the two wills to which I have referred.”

6 The 2002 wills, Exhibits B and C, were tendered. Earlier wills were also tendered, and at T24 lines 23 to 26, Mr Hallen said:

“it is intended that Mr Binetter will be a party to a release also. So the intention is that on settlement of the case today everything will be resolved between the parties and with the hope, certainly on our side, that in time it all can be put behind them and they can move forward.”

7 I should also quote from the transcript at T25 lines 31 to 33. Mr Ellison said that he had two things to mention. The first was:

“Because of Mr Michael Binetter's involvement, I need to ascertain his availability this afternoon to sign any documents.”

8 At the parties' request, I listed the matter for 10 o'clock the following day. They accepted that the Court would need to give consideration as to whether the grant of probate of the 2002 wills in each case was appropriate, Mr Hallen relying on what was contained in his outline but indicating that he would wish to provide more assistance to the Court in that regard. The parties were not ready to hand up consent orders on Tuesday at 10am as envisaged, and by consent I adjourned the matter several times and ultimately to 10am on Friday 12 March.

9 On Friday 12 March, Mr Hallen outlined the impasse which had been reached between the parties. Both sides did not resile from their agreement that the matter had been resolved, but the dispute between them centred on the terms of the proposed releases and the inclusion or otherwise of Michael as a party to the deed.

10 It was agreed by counsel that I should receive the competing versions of the deed and consider which form of order more closely accorded with what had been said in court.

11 I ordered that the competing draft deeds be provided to my Associate, and this was done. Having received the competing drafts of the deed, I took the view that the plaintiff's draft seemed, on its face, to be a reasonable approach to putting into place the settlement of which the parties had advised the court on 8 March, and that the appropriate way forward was to have the defendants indicate in what respects the plaintiff's draft was deficient, either by its inclusion of matters which, on the defendant's case, it should not have included, or by reason of elements that were missing and, on the defendants' case, should have been included. I also sought an indication as to whether Michael had agreed to enter into the deed and an indication of what issues were sought to be ventilated by Trust. I directed the parties, through an email sent by my Associate, to provide submissions, and that was done with due dispatch by all parties.

12 I now deal with the issues raised by the defendants and Trust. First, dealing with the parties. It is clear that Trust was not a party to the settlement announced on 8 March: see T23 and T24 to T39. Trust was, however, a party to the proceedings, and in my view it is appropriate that it be a party to the settlement if it wishes to be. Trust was not only a party, but also the executor named in the 2002 wills of both Agnes and George. Trust is willing to be a party to the deed subject to two matters, one of which is the removal of recital N and, secondly, a change in wording of the consent orders.

13 I understand that the second matter is now the subject of agreement between the plaintiffs and Trust, and so far as the other matter is concerned, it can be noted that that it too is no longer an issue, as a result of what has been conveyed to Mr Stinson by Mr Hallen and noted on the transcript.

14 So far as Michael is concerned, it is clear from what was said in court on 8 March that the parties intended that he would be a party to the deed: see T24 lines 23 to 26 and T25 lines 31 to 33; and having regard to what Mr Ellison said, it was clearly anticipated that Michael’s participation in the deed would be forthcoming. However, it is clear that Michael was not a party to the proceedings, and I do not take anything said by Mr Ellison in court on 8 March to indicate that he had instructions from Michael at that point in time in relation to the deed.

15 It is clear that it was intended by the plaintiff and defendants that Michael would give and be the subject of a release so that “everything will be resolved between the parties”, which are the words of Mr Hallen found in the transcript at T24 line 25. I note that the Court has been informed that Michael has signed a document in the form of Annexure F to the defendants' proposed deed of settlement. I will have the plaintiff's proposed deed of settlement marked as Exhibit J, and I will have the defendants' proposed deed of settlement marked as Exhibit K. Annexure F to Exhibit K is a deed solely between the plaintiff and Michael, so he has demonstrated by that a willingness to release the plaintiff. He does not by that document release the estates of George or Agnes from any claims by him, since the estates, or representatives of the estates, are not parties, and there is no promise by him not to bring claims against the estates.

16 In my view, the defendants have an implied obligation to use reasonable endeavours to obtain Michael’s agreement to enter into the deed that releases the estates and by which he agrees to not make any claims against the estates. If Michael will not do so, then it is appropriate, in my view, that Yvette indemnifies the plaintiff and Trust in respect of any claims that might be made by Michael against the estates of Agnes or George, since it was contemplated, in my view, from what was said in court that no such claims would be made, in return for the plaintiff's agreement that Yvette would obtain $1.875 million, paying her own costs out of that provision.

17 I turn now to the issue of the width of the release. The defendants assert that the releases given by the proposed clauses 1.4 to 1.9 of the plaintiff's proposed draft, Exhibit J, are too wide because they go beyond matters concerning the estates of Agnes and George, the FPA proceedings, the probate proceedings, and the work performed by Michael in relation to the 2003 wills and associated documentation relating to severance of the joint tenancy.

18 Having regard to what was said at T23 and T24 by Mr Hallen, I think that the words at T24 do not objectively describe an agreement that the releases to be given would extend beyond the matters identified by the plaintiff by its counsel, save that reference was made to “any other Act”, so that should be added.

19 On the other hand, I think what was intended, objectively, was that all disputes between the parties concerning the wills of Agnes and George, the provisions to be made out of the estates of Agnes and George for Yvette and Andrew, the costs of the probate proceedings and the FPA proceedings, and any claims in relation to these matters, whether they arise out of the FPA or any other Act, were to be finally resolved, with no scope for any claims by the parties against each other in the future.

20 Next is the question of the proposed release to be given by or in respect of Michael. It is wide because it extends beyond the claims relating to the estates, the District Court proceedings, the FPA proceedings, the FPA Act, other Acts of a similar kind, and the probate proceedings. Theoretically, it is possible that Robert and Vicki Grant (“Vicki”), Robert’s wife, have incurred legal fees in their own right, and I think that the release should be restricted to the same extent as the main release.

21 It follows from what I have said earlier that recital R should not be qualified by the word “known”, as the defendants submit. In my view, “presently existing claims” includes claims which the parties do not know about, but does not include future claims based on future acts or omissions.

22 The wording that I think, therefore, needs to be adopted in relation to the release, and I will use clause 1.4 as an example, should be to the effect as follows: delete the words in the second last line of clause 1.4, “including but not limited to claims in respect of the Estates and/or the District Court Proceedings”, and substitute the following words:

“in respect of or relating to the Estates, the probate proceedings, the FPA proceedings, the FPA or any other Acts to which the wills of Agnes and George, or the provisions to be made out of the Estates, are subject, the District Court proceedings 5129/2003, or any matter concerning the work performed by Mr Michael Binetter that is the subject of those District Court proceedings."

23 I turn now to the question of the grant of probate of the will of Agnes of 16 January 2002 and grant of probate of the will of George of 30 January 2002, both in solemn form. I note that there has been filed in respect of the will of Agnes of 16 January 2002 and the will of George of 30 January 2002 an affidavit of Carolyn Elizabeth Yarrington as an attesting witness: see, on the need for at least one such affidavit, In Re Munn [1943] SASR 304; Oakes v Uzzell [1932] P 19. I have had regard to the helpful written submissions of Mr Hallen in this regard, and I note that Mr Ellison does not dispute the correctness of the propositions which are advanced in those written submissions. I have had regard to the matters addressed in Mr Hallen’s submissions of 15 March 2010, and I have noted in particular the passages there cited from Re Levy Deceased (No 2) [1957] VR 662 at 665 per Sholl J and In the Estate of Edwards Deceased (1981) 28 SASR 380 at 384 per Sangster J. Sangster J said:

“Even if a grant of Probate may not be revoked without cause then nevertheless the grant may be removed for cause which is alleged in the proceedings before the court and which allegation, if made out, would support the allegation, and where there is no suggestion that that allegation is other than bona fide; and that the court may do so without hearing any evidence in support of the alleged cause for revocation if all parties possibly interested in the outcome of the proceedings consent to the order.”

See also Tolson v Hender [2009] WASC 319 per Hall J and Philpott v Olney [2004] NSWSC 592 per White J, where his Honour noted at [7] that:

“Because the grant of Probate or letters of administration is a public act, the court will not make orders for the grant of Probate or letters of administration merely because the parties have agreed to them.”

But White J also noted at [7]:

“On the other hand, the fact that the parties have agreed upon orders for the resolution of the issues in the case is a relevant circumstance, particularly where, as in this case, the plaintiff and the defendant have retained counsel of known competence and experience in the area.”

24 The effect of the resolution of the proceedings is that George receives the whole of Agnes’ estate, pursuant to the 2002 will of Agnes, because George survived her by more than 30 days. Under George’s 2002 will, a testamentary trust is created of which Robert is the trustee. As trustee, he receives the entirety of the residue of the estate, after satisfying the bequests to Miss Edit Hill, to their son, to Vicki, to the Woollhara Library and, as a result of orders to be made under the Family Provision Act proceedings, paying or causing to be paid a lump sum to Yvette out of the estate.

25 Mr Hallen points out that, in the events that have occurred, there are no persons other than Robert, Yvette and Vicki whose interests are or may be adversely affected by the grant of probate in solemn form of the 2002 will of George. An affidavit of Vicky was read in these proceedings in support of this application for grant of probate of the 2002 will, and she is to be a party to the proposed deed.

26 Yvette receives more, based on the consent orders, than she would have been entitled to receive under George’s 2005 will and also under his 1999 will, although she will receive less than she would under his 2003 will.

27 Robert may receive more as a beneficiary of the testamentary trust, as a result of the consent orders, than he would have been entitled to receive under George’s 2003 will, but not under George’s 2005 will, which neither party propounded, or Agnes’ 2005 will, which is not relevant since in that will Agnes left the whole of her estate to George.

28 Vicki is a substitutionary beneficiary named in the 22 December 2005 wills, which clause, in the events that have occurred, does not take effect. Vicki is not a beneficiary named in the 2005 wills or the 2003 wills. It should be noted that in George’s 1999 will, she would have received more than she would under his 2002 will. However, as I have noted, she consents to the grant of probate of the 2002 will and will be a party to the settlement deed. She has been advised of her rights to seek and obtain independent advice, and she has indicated in her affidavit that she does not wish to do so and that she is happy with the settlement which has been reached.

29 A Miss Edit Hill was to receive a bequest of specific items of pottery or ceramics under Agnes’ 2003 will, but she receives the same bequest under the 2002 wills. She is not a person, therefore, who has any interest in whether the 2003 will or the 2002 will is the subject of the grant of probate, and she is not adversely affected.

30 Other beneficiaries referred to in clause 4 of George’s 2002 will are not beneficiaries named in the 2003 wills or in any of the 2005 wills. Those people received the same bequest as they would have received under George’s 1999 will, and therefore it was submitted, and I accept, that their consent is not required to the grant of probate in solemn form of Agnes’ 2002 will or George’s 2002 will.

31 I was taken this morning to some specific documents which bring into question the mental capacity of George, certainly by 2003. A medical view was expressed as at October 2003 that he had moderate to severe cognitive impairment and was not competent to change a power of attorney (Exhibit H at 121), and did not have cognitive capacity to sign legal or financial documents on his own behalf (Exhibit H at 119). It seems from the evidence that, even by 18 December 2001, he was diagnosed as suffering from moderate dementia. By late 2003, that dementia had progressed to a point where it was described as moderate to severe (see page 119 of Exhibit H).

32 As Einstein J noted in the case of In the Estate of Strange (unreported, Supreme Court of New South Wales, 26 November 1997), very difficult questions can arise as to the mental capacity of a person of advanced years. These cases can involve minute examination of the testator’s ability to understand and comprehend a document, and the line between having sufficient testamentary capacity notwithstanding some degree of deterioration and not having sufficient testamentary capacity can sometimes be a very difficult one to draw.

33 There is no question as to the mental capacity of Agnes at the time of execution of the 2002, 2003 or 2005 wills. There is a significant question mark over the execution by both Agnes and George of their 2005 wills.

34 In respect of the 2003 wills of Agnes and George, in addition to the question of the extent of deterioration of George’s mental capacity by the time the 2003 will came to be executed, there is a significant attack mounted by Robert in relation to the circumstances in which the will came to be prepared, the involvement of Michael, the radical departure in those wills from provisions standing for a long period prior to that date, and the nature of other documentation prepared by Michael in relation to a joint tenancy of property. I do not for present purposes need to form any view about whether these matters would be made out, but rather need only be satisfied that there was a bona fide case put forward by Robert to attack the 2003 wills of Agnes and George, and put forward by Yvette to attack the 2005 wills of Agnes and George.

35 Having regard then to:

(1) the apparent due execution of the 2002 wills of Agnes and George;
(2) the evidence of due execution from Ms Yarrington;
(3) the agreement of all those potentially affected by the grant of probate of the 2002 wills of Agnes and George, and the undoubted competency of counsel advising the parties;
(4) the existence of bona fide attacks on later wills;
(5) the fact that although George was diagnosed with moderate dementia shortly prior to execution of the 2002 will, that will did not involve a radical departure from his prior will made in 1999, at which time there is no evidence of any dementia, and that the 2002 will was prepared by wholly independent lawyers employed by Trust;

I regard it as appropriate to make the orders sought by the parties.

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