Re Ellul (deceased); Ellul v Ellul
[2005] VSC 351
•1 September 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
IN ITS PROBATE JURISDICTION
No. Prob 22 of 2004
| IN THE MATTER of the will of ANTONIETTA ELLUL (also known as ANTOINETTE ELLUL), deceased | |
| JOHN ELLUL AND CARMELA PALOYANDIS | Plaintiffs |
| v | |
| SALVATORE ELLUL | Defendant |
-----------------
| IN THE SUPREME COURT OF VICTORIA | No. 7116 of 2002 |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
| IN THE MATTER of the will of ANTONIETTA ELLUL (also known as ANTOINETTE ELLUL), deceased | |
| SALVATORE ELLUL | Plaintiff |
| v | |
| JOHN ELLUL AND CARMELA PALOYANDIS | Defendants |
---
JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 August 2005 | |
DATE OF JUDGMENT: | 1 September 2005 | |
CASE MAY BE CITED AS: | Re Ellul dec’d; Ellul v Ellul | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 351 | |
---
ADMINISTRATION and PROBATE – will – proof in solemn form – testamentary capacity – whether testatrix understood what she executed – whether undue influence – sale of land at market value – whether market value obtained - whether executors properly distributed estate assets
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K McMillan SC with Mr Simon Pitt | Maddocks |
| For the Defendant | Mr Paul Lacava SC with Ms P Nesckovcin | Aitken Walker and Strahan |
HIS HONOUR:
Antonietta Ellul was born on 26 April 1909 in Alexandria Egypt and she died in Melbourne on 13 September 2000. A widow since 1969, she left eight surviving children whose names and ages, according to the death certificate, were then as follows:
Carmela Paloyandis 72 years
John Ellul 71 years
Salvatore (Sam) Ellul 67 years
Mario 64 years
William 61 years
Teresa Calleja 58 years
Anna Vella 54 years
Lucy 51 years
Her estate was modest; it comprised the family home at 242 Parer Road, Airport West and $22,358.51 in cash. The home was valued for probate purposes at $145,000.
Regrettably, it seems that the family had had a long standing falling out. Sam told me that he maintained contact with Mario but that he had not spoken to Teresa for 33 years, to Anna for 23 years or to John for 14 years. He said that he did not now have any contact with his brothers and sisters other than Mario and Mario’s wife. This was, notwithstanding that the deceased and her husband, Spiro, during his life had owned and, I suppose, lived in the family home since 1960 and, further, that, until recently, Sam had lived at 239 Parer Road, his brother John, next to his mother at 244 Parer Road and his sister, Carmela at 119 Parer Road.
The deceased made a will dated 25 September 1969 in which she appointed Carmela and John to be her executors and left the whole of her estate to be divided equally between her eight children.
On 9 March 2000, in circumstances to which I shall return, she made a further will revoking the 1969 will and appointing the same Carmela and John as her executors. This later will is in more elaborate terms than the earlier document, but its effect was to leave the residue, after payment of the usual expenses, to the eight children, as before. This will, however, contains in clause 6 a further provision in favour of Spiro Jimy Ellul, the son of John, conferring upon him an option to purchase the home at market value:
“MY TRUSTEE shall first offer my grandson, SPIRO ELLUL, the opportunity to purchase my home situated at 242 Parer Road, Airport West at the relevant market price applicable at the date of sale. A valuation obtained from an accredited valuer at the time of sale (the agent and the time for obtaining the said valuation to be determined by my Trustee at my Trustee’s sole discretion) shall be sufficient evidence of the relevant market price applicable at the date of sale. I wish to give my grandson the first opportunity to purchase my home as he bears the name “Ellul” which is my husband’s family name. If my grandson, SPIRO ELLUL, shall decide that he does not wish to purchase not withstanding being given such opportunity, my Trustee shall at my Trustee’s sole discretion sell my home by private treaty or by public auction.”
It is this provision and the manner in which it was implemented that has given rise to further disputes between Sam and the rest of the family and to this litigation.
Following the death of Mrs Ellul on 13 September 2000, Spiro spoke to his Uncle Sam about purchasing the home, showing him a valuation which he, Spiro, had obtained dated 6 November 2000 in which its value for mortgage purposes is shown at $145,000. Sam, who was not then aware of the 2000 will, was of the view that the home should be put to auction. When he was later shown the 2000 will which gave Spiro an option to purchase the home, Sam formed the view that this will was “a conspiracy and a fraud.” He gave evidence that he told Carmela that he was prepared to purchase the home for $180,000 but that she rejected this in forthright terms.
He then, on 14 December 2000, lodged a caveat with the Registrar of Probates. In due course the executors applied for probate of the 2000 will but, due to an oversight in the Probate Office, notice was not given to the caveator. Probate was granted by the Registrar on 19 February 2001. Sam became aware of this following a visit to the Probate Office in March 2001.
The Estate was then administered under the 2000 will. The home was sold to Spiro for $150,000, the value attributed to it in a valuation prepared by David Matthew Clement of Burgess Rawson and Associates Pty Ltd. And following settlement of the sale on 29 June 2001, the proceeds were distributed to each of the beneficiaries on 2 July 2001. Sam received the cheque for his share, $18,170.38, which he has retained. The executors filed their administration account on 26 June 2002 showing that the estate had been got in and wholly distributed.
Sam remained dissatisfied. In September 2001, he had obtained a valuation of the property as at 2 May 2001 in the sum of $180,000. Later, on 5 February 2002, he filed a writ in proceeding No. 7116 of 2002 alleging misconduct on the part of the executors and seeking to have them removed and for further orders.
Then, on 12 February 2004, upon the application of Sam, the Court ordered that the grant of probate be revoked on the basis that it ought not to have been made by the Registrar in the face of a caveat. On 22 April 2004, Sam lodged a further caveat against the 2000 will. The difficulty which this brought about is that the beneficiaries, who had each received their share, were not interested in proving the 2000 will or, indeed, the 1969 will. The sale to Spiro was completed and the title to the home probably registered in his name. Meantime, Sam in the caveat proceeding was alleging that the 2000 will was improperly procured by Spiro, it was improperly executed, that the deceased was not capable of giving instructions in English or Maltese and, further, that she lacked testamentary capacity.
Accordingly, in accordance with directions given by me, the two proceedings have come on for hearing. The two proceedings are the application of the executors for probate in solemn form, opposed by Sam as caveator (proceeding Prob 22 of 2004) and the action brought by Sam against the executors alleging breaches of duty (proceeding No. 7116 of 2002). Given the unusual circumstances of this case and the modest size of the estate, I directed that the two proceedings be heard together and on affidavit, and this was done.
The Probate proceeding
The particulars of objection to the grant of probate are as follows:
“AThe will was not executed in accordance with the Wills Act in that it was not translated into a language in which the deceased knew and she did not understand English.
B Want of testamentary capacity:
1.The deceased lacked the capacity to make a will in the form made or to make a will at all, and the person who certified her competent was not in fact nor in law qualified to do so and to be a witness to the will.
2.Lack of capacity was obvious for a long period of time and over some years and also obvious shortly before and at the time and date of the said will.
3.The will was not drawn on the direct instructions of the deceased.
4.The deceased was not capable of giving instructions for the will as drawn, or at all.
C Undue influence:
The will was made at the direction of and with the undue influence by John Ellul and his son Spiro Ellul.
DThe will was not made at the request or direction of the deceased but at the directions and on the instructions of John Ellul and his son Spiro Ellul given to solicitors who drew the will.
EThe deceased was not capable of giving instructions in English nor in the language into which it is said the will was translated, she being fluent only in Egyptian.”
The will was prepared upon instructions obtained on 2 February 2000 by a solicitor, Lily Ong, and executed on 9 March 2000 in the presence of Ms Ong and Eric Charles John Seal, a medical practitioner, each of whom signed as witnesses. Also present was a Maltese interpreter, Victor Charles Aquilina.
There was no challenge to the evidence that the will was executed in accordance with the Wills Act. The evidence of Mr Aquilina was that he spoke with the deceased in Maltese and that she appeared to be fluent in that language. His evidence on the latter matter was supported by that of family members. It seems that Mrs Ellul was of Maltese origin and, although she also spoke Arabic, Italian and English, Maltese was the language spoken between the family members at home. Mr Aquilina said that he translated the will to her and that she appeared to understand it. I accept this evidence and conclude that, when she executed the will, its content was read to Mrs Ellul in a language in which she was fluent and that she understood the meaning and import of the document. I am satisfied that Ground A is not made out and that the will is formally valid.
Grounds B3 and E focus upon the instructions for the will. These were taken by Ms Ong at the Broadmeadows Health Service on 2 February 2000. She was assisted in this task by Josephine Rizzo as interpreter and her daughter Maree Brugada, who was a case worker with the Maltese Community Centre. Ms Ong was unable to recall from what language her instructions were interpreted. It is clear however from her evidence and from the notes she took of her instructions that Mrs Ellul was able to communicate with her via an appropriate interpretation. No person, other than those mentioned, was present when the instructions were taken and there is no evidence that Ms Ong took instructions from any other person at any other time. Therefore, these grounds fail.
Having regard to the events which led to the making of the will, I am satisfied that the March 2000 will is not an officious one.
As to Ground B, the evidence that Mrs Ellul had testamentary capacity on 2 February 2000 and on 9 March 2000 is overwhelming, notwithstanding the circumstances which, at first blush, may have suggested cause for concern.
Mrs Ellul lived alone in the home at 242 Parer Street until December 1999, when she suffered a fall. She was then 90 years of age and hard of hearing and blind. In addition, she suffered from poor physical mobility and urinary incontinence. Other medical problems included the effects of a prior stroke, renal impairment, heart failure and the insertion of a permanent pacemaker in 1963. She was admitted to Melbourne Extended Care and Rehabilitation Service (MECRS) in December 1999, where she remained until her discharge on 20 January 2000. She was then admitted to Broadmeadows Health Service where she was in an extended care ward. There she remained until her death on 13 September 2000. In her death certificate it is noted that she then suffered from dementia.
Against this background, it is not surprising that Ms Ong was concerned in February 2000 that her client have testamentary capacity to make a will. To this end, she arranged for an assessment of her mental condition. This was conducted by Mrs Ellul’s treating physician, Dr Seal. Dr Seal had also the advantage of being a consultant geriatrician and familiar with the patient. He gave evidence of the assessment which he conducted on 1 February 2000 in the presence of and with the assistance of Spiro as interpreter. Dr Seal said he was not sure whether they spoke in Italian or Maltese but he assumed that it was Maltese.
It is clear from his evidence, which I will not here summarise, that Mrs Ellul’s mental condition satisfied the legal standard for testamentary capacity. I am satisfied, too, that the presence of Spiro, the person who stood to benefit from the proposed new will, did not infect the assessment.
The following day Ms Ong attended Broadmeadows Health Service to take instructions for the will. She took these instructions with no family member present and with the assistance of interpreters, as I have mentioned. I accept that she, too, carried out an assessment of the capacity of Mrs Ellul and that this, too, showed sufficient capacity to give instructions. She then took instructions and the will which was later prepared accorded with those instructions.
On 9 March 2000, before she executed the will, Mrs Ellul was again assessed by Dr Seal. His evidence, which I accept, is that she had sufficient capacity to make a will at that time. The will was later read to her in Maltese by Mr Aquilina and Ms Ong was satisfied that Mrs Ellul understood what had been read to her and that it represented her wishes. Mrs Ellul then executed the will in the presence of Dr Seal and Ms Ong. No family members were present.
Against capacity, counsel for Sam relied on three matters. First, the report upon her discharge from MECRS on 20 January 2000 included a statement that she was assessed by a neuropsychologist, Lucy Smith, and found “to be disoriented, have inflexible thought processes and poor reasoning skills”. Ms Smith was not available to give evidence but I had the benefit of her affidavit and her report dated 17 January 2000. In this, she expands upon the opinion and adds that Mrs Ellul seemed to demonstrate reasonable insight into the level of care which she needed. The information contained in her notes also suggest that the patient had an awareness of her situation and an ability to make up her own mind on matters affecting this.
The second matter was a clinical note dated 2 March 2000 to the effect that Mrs Ellul said she had “no intention of changing her will. ‘All I want to change is my eyes.’” Dr Seal explained the circumstances of this incident which I accept as not being indicative of any real change of mind on her part as to the making of the will which was then in preparation. Indeed, her concern that the new will be made appears from the note of the social worker, Adrienne, of a discussion with her at 10.30am on 7 March 2000.
The third matter was the mention of the dementia in the death certificate. This does not cause me to doubt the capacity of Mrs Ellul. The diagnosis is contradicted by the evidence of Dr Seal, which I accept. It is a diagnosis some six months after the date of the will. In any event, the diagnosis without more does not show a condition of sufficient severity to cause me to conclude that the testator lacked capacity at the relevant time.
I conclude, therefore, that, at the time she gave instructions and at the time she executed the will, Mrs Ellul had the mental capacity required by law to do those things.
As to undue influence, there is no evidence to raise an inference of this. I am satisfied that there was no undue influence of either John or Spiro in the making of the will. Grounds C and D likewise must fail.
It follows from this that probate should be granted of the will dated 9 March 2000.
Proceeding against the executors
The complaints of Sam may be conveniently dealt with under three heads: the sale to Spiro; the distribution of the chattels; and the application of the estate money.
The sale to Spiro was made by private treaty for $150,000. It will be recalled that, by clause 6 of the will, the price must be the “relevant market price applicable at the date of sale”. The will goes on to provide that the valuation from an accredited valuer at the time of sale shall be sufficient evidence of the relevant market price.
The executors relied upon the valuation of certified practicing valuer, Mr Clement, dated 2 May 2001. This gives the market value as $150,000.
Although it is expressed to be a market valuation and this is defined on page one of the report in conventional terms, there appears the following under the heading, Comments:
“The property is regarded as marketable at the valued price in the event of a forced sale.”
This was fastened upon as an indication that the valuation was on a forced sale basis, not a market value basis. Mr Clement in his affidavit and in his oral evidence resisted this suggested. He said that the sentence was inadvertently not deleted from the proforma when the report was prepared. He maintained that his instructions were to provide a market valuation and that this is what he did. His comparable sales were on the same basis. He stood by his valuation of $150,000. Sam says that the home was worth $180,000. He is not a valuer and his statement cannot carry weight as valuation opinion. He said that in August 2001 he obtained a valuation of $180,000 from Bill Stokes of BS & J Valuation Services which valuation is an exhibit to his affidavit of 3 February 2005. Mr Stokes was not called to give evidence and no explanation for his absence has been offered. I infer that his evidence would not advance Sam’s case.
Strictly speaking, the BS & J report is hearsay. It was agreed between counsel that I should not act upon hearsay where it appears from time to time in Sam’s affidavit. Even so, the report has serious shortcomings as a valuation. Mr Stokes had no access to the property and there was evidence that improvements had been carried out between May 2001 and the date of inspection on 22 August 2001. I accept, of course, that an experienced valuer can make assumptions and inferences as to the condition and layout of a standard house but, even so, the lack of internal inspection is a disadvantage. It will be recalled that this report was not in existence when the home was sold to Spiro.
Weighing up the evidence, I accept that it was reasonable for the executors to act upon the Clement valuation as establishing the market value for the purposes of clause 6 of the will. I find no breach of duty.
I will now deal briefly with the complaints about the chattels of the deceased. Sam’s principal complaint is that he was not able to participate in the distribution of chattels between the family members. This was because he was estranged from his brothers and sisters and he refused to attend meetings. In these circumstances, the normal processes of distribution are difficult, if not impossible. The evidence showed that his brothers and sisters decided he should have a brand new dining table and six chairs, and that he took these.
He queried, too, a number of items which he said were not accounted for:
·Two pendulum clocks. Teresa said that these were old and not working and that they were thrown out.
·Bed quilt. Teresa said that this and the mattress and the bed were thrown out as they had been sold by her mother. This is confirmed by Spiro and the executors in their affidavits of 11 March 2005. Anna, on the other hand, said that the bed and mattress were sold to her, Anna’s, niece, Frances Paloyandis, and this is confirmed, with respect to the bed at least, by the administration accounts.
·Gold chain which Sam had purchased in Thailand in 1992. The family members who gave evidence denied knowledge of this chain.
·Gold chain which John had bought in Greece. The evidence of this was unsatisfactory. John said that he bought a chain for his mother in Malta, but Teresa and Anna denied knowledge of a chain from Greece. In paragraph 2(f)(iv) of the affidavit of Spiro sworn 11 March 2005, (and confirmed by the executors’ affidavit of 11 March 2005), he says that John took this chain and gave it to his, Spiro’s, daughter, Isabella.
·Coffee table. Anna said that this was sold and this is confirmed by the accounts.
I am not satisfied that the evidence shows any breach of obligation by the executors in their dealings with these items.
The complaint with respect to the estate funds is that the executors, in breach of trust, withdrew money from the estate accounts and applied this for their own use or for the use of their family members. Counsel took John through a number of small disbursements shown in the administration accounts. In some cases they were made to one or other of the family members to reimburse them for payments made on behalf of the estate. In others, they were made to persons who provided goods or services for the estate. I am satisfied that all of these payments were properly applied.
Finally, it is alleged that the executors failed to provide accounts. Prior to the issue of the Writ, administration accounts were filed and Sam received a copy on a date which is unknown to me. Furthermore, on 8 November 2001, Carmela sent to the solicitors for Sam, a comprehensive account supported by receipts and bank statements. There is no substance for this complaint.
I conclude that the complaints and allegations made in this proceeding, insofar as they were pressed, have not been made out.
I propose, therefore, the following orders:
Probate 22 of 2004
1.Probate of the will dated 9 March 2000 be granted to the executors named in the will, Carmela Paloyandis and John Ellul.
Proceeding 7116 of 2002
1.Judgment for the defendants.
I will hear counsel further on any further orders which should be made to give effect to my conclusions and on the question of costs.
---
0
0
0