Re Solowei
[2018] VSC 586
•5 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2018 06600
IN THE MATTER of the Estate of DUSIA SOLOWEI (deceased)
BETWEEN
| NICHOLAS SOLOWAY | Plaintiff |
| v | |
| BARRY SOLOWAY | Applicant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 5 October 2018 |
CASE MAY BE CITED AS: | Re Solowei |
MEDIUM NEUTRAL CITATION: | [2018] VSC 586 |
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COSTS – Where applicant sought revocation of a grant of letters of administration on intestacy – where applicant delayed and withheld relevant information during proceedings – No point of principle
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Mah | KCL Law |
| For the Applicant | Mr J D Catlin | Armstrong Legal |
HER HONOUR:
Introduction
Dusia Solowei died on 4 April 2018, aged 92 years. She was survived by her two children, the plaintiff and the applicant.
On 24 April 2018, the plaintiff filed an application for a grant of letters of administration on intestacy. In making that application, the plaintiff deposed that after making careful enquiry and searches he was unable to find a will of the deceased.
On 2 May 2018, letters of administration of the deceased’s intestate estate were granted to the plaintiff.
Subsequently, the applicant discovered from the Supreme Court website that a grant of administration had been made to the plaintiff and, on 7 May 2018, he obtained a copy of the grant.
Application to revoke the grant
By summons filed 8 May 2018, the applicant sought revocation of the grant of administration on intestacy. The summons also sought an order that the Court grant probate to the applicant of the deceased’s will dated 29 August 2014.[1] The 29 August 2014 will was not in evidence and the applicant failed to file any affidavits in support of his application.
[1]The order seeking a grant of probate could not be made in the revocation application as a grant of probate of a different will must be made by the named executor after advertising the application and filing the appropriate affidavits to support the application.
On 13 May 2018, the applicant provided the plaintiff with a copy of a will dated 29 August 2014, executed at 12.07 pm. A certified copy was subsequently sent in the post and received by the plaintiff on 23 May 2018. On that same date, the plaintiff requested the applicant provide copies of all previous wills of the deceased. The applicant responded ‘when I find any I will send them to you as requested’.
By letter dated 12 June 2018 to the applicant, the plaintiff’s solicitors pointed out a number of issues with the copy August 2014 will and stated that the distribution of the estate, from a practical point of view, was effectively the same whether under intestacy or under the August 2014 will, by reason of the effect of s 53 of Guardianship and Administration Act 1986, and proposed that the applicant withdraw his summons and agree for the estate to be distributed equally between the plaintiff and the applicant.
On 13 June 2018, the following events occurred:
(a) at 11.47am, the Court informed the applicant that the proceeding was listed for 15 June 2018 but as no affidavit in support had been filed, it would be difficult for the Court to consider any proposed orders;
(b)
at 12pm, the applicant emailed the Court attaching eight documents, including a copy of three wills of the deceased but did not copy the plaintiff’s solicitors into the email. There were two wills dated 29 August 2014, the first executed at 10:40am and the second executed at 12:07pm, and a will dated 6 October 1998. The Court forwarded the email to the plaintiff’s solicitors.
Until this email was forwarded, the plaintiff had not been aware of the 1998 will or the August 2014 will executed at 10.40am;
(c) at 1.13pm, the Court informed the applicant, inter alia, that if he intended to rely on the attachments to his email, any evidence must be by affidavit; and
(d) at 4:00pm, the applicant agreed to withdraw his application, stating that he agreed to this after discussion with the plaintiff and counsel.
On 14 June 2018, the parties forwarded signed consent orders to the Court for dismissal of the summons for revocation. The Court informed the parties that an appearance was no longer required but noted that as there appeared to be a will or wills in existence, the applicant was to file an affidavit by 22 June 2018, clarifying the basis on which the summons should be dismissed.
On 21 June 2018, the applicant informed the Court that he no longer wished to withdraw or dismiss the summons for revocation and queried whether he was required to file an affidavit by 22 June 2018. The Court listed the application for hearing on 10 August 2018, with a direction that the applicant file his affidavits in support before that date. By 25 July 2018, no affidavits were filed by the applicant, so the plaintiff’s solicitors sought information from the applicant concerning the three wills, including confirmation that the applicant held the originals, an explanation for there being two wills on the same day, the person who prepared those wills, provision of the documents referred to in the email of 13 June and documents confirming the testamentary capacity of the deceased to make her three wills. This last request was made against the background of the deceased’s serious health issues suffered by her since 2013, including Alzheimer’s disease and vascular dementia, and two fractured vertebrae causing her neurological damage and affecting her fine motor skills. The applicant failed to respond to this request by the plaintiff’s solicitors.
On 9 August 2018, the applicant filed his affidavit sworn 9 August 2018. In that affidavit, the applicant exhibits a copy of the 29 August 2014 will, being the document signed by the deceased at 10.04am. The late filing of this affidavit meant that the plaintiff was unable to file a reply affidavit for the purpose of the hearing the next day.
At the hearing on 10 August 2018, counsel for the applicant informed the Court that he had the originals of the three wills of the deceased in Court. He was required by the Court to provide them for inspection by the plaintiff. As a result of the production of the original wills and the late filing of the applicant’s affidavit, the application was adjourned to 31 August 2018.
Subsequently, after inspection of the originals of the three wills, the plaintiff’s counsel was satisfied the documents were original documents although the plaintiff remained concerned with the validity of the two August 2014 wills. However, it was thought likely that the 1998 will would at least be valid and, on 31 August 2018, the plaintiff consented to an order that the grant of administration on intestacy be revoked.
Events prior to the plaintiff’s application for a grant on intestacy
The plaintiff deposes that he was unaware of the deceased leaving a will until 28 April 2018, when he was informed by email from the applicant that he (the applicant) was the executor of the deceased’s estate. The next day, the plaintiff requested a certified copy of the will, noting that the applicant had not previously made him aware of any will despite having had many opportunities to do so. The plaintiff also deposes that he was not provided with a copy of one of the August 2014 wills until 13 May 2018, and that it was not until 13 June 2018 that he was informed for the first time that there were two August 2014 wills and a will made in 1998. The plaintiff deposes that he had no knowledge of the 1998 will until the applicant’s email of 13 June 2018.
In contrast, the applicant deposes that he provided the plaintiff with a copy of a 29 August 2014 will two days after it was made. The plaintiff disputes this and deposes that in 2014 the applicant told him that he was preparing a will for the deceased. The two of them discussed the contents of a proposed will. The plaintiff was shown a signed will but raised certain issues he had with it with the applicant. The applicant showed further drafts of a will to the plaintiff, however, the plaintiff was not shown any further wills signed by the deceased and he did not make any further enquires in relation to the further drafts.
On 7 October 2016, the plaintiff was appointed as administrator of the deceased by the Victorian Civil and Administrative Tribunal (‘the VCAT’). After his appointment, he asked the applicant to provide the deceased’s documents to him, but the applicant failed to do so. In addition, in his capacity as the deceased’s administrator, the plaintiff sold the deceased’s home. In the course of preparing the home for sale, he did not find any wills by the deceased.
At the time of the deceased’s death, the plaintiff deposes that he was unaware that the deceased had made any specific wills and denies that he had knowledge of any specific wills at the time of his application for a grant of administration on intestacy. The plaintiff also deposes that if the deceased had left a will, he would have expected her to name the applicant as executor, given that he was a solicitor.
The practical effect of the wills
The parties agreed that the practical effect of the three wills and a distribution on intestacy would be almost identical, with the plaintiff and the applicant receiving the estate between them in equal shares as follows:
(a) under an intestacy and the 1998 will, the plaintiff and the applicant would receive the estate in equal shares; and
(b) under the two August 2014 wills, the distribution of the estate is identical. The plaintiff and the applicant receive the cash in the deceased’s bank account and her home in equal shares and the applicant receives the residuary estate. The largest part of the estate is traced back to the deceased’s home, sold by the plaintiff as the deceased’s administrator during her lifetime and therefore not adeemed. The amount would therefore be distributed to the plaintiff and applicant equally. The remainder of the estate comprises the funds in the deceased’s bank account and would also be distributed to them equally.
Costs orders sought by the applicant and the plaintiff
The parties were unable to agree on the costs of the proceeding and the application for revocation and written submissions as to the costs were filed by the parties.
Applicant’s submissions
The applicant submits that the plaintiff’s application for letters of administration was not brought on a proper basis; that the plaintiff’s resistance to the application to remove the plaintiff, meaning the revocation application, was also not on a proper basis; that the plaintiff misled the Court in his application for a grant on intestacy when he deposed that ‘after careful enquiry he had been unable to find a will’ and that arguably the plaintiff perjured himself in that affidavit. In support of the applicant’s submissions, he relies on the following email by the plaintiff dated 5 April 2018 to the VCAT:
I am seeking your assistance in me being granted an order to appoint me as administrator of my mother’s will the executor of which is [the applicant] whose power of attorney you revoked in October 2016. I presume this will require removal of [the applicant] as executor of the will on the same or similar grounds as before (for the POA). Please let me know what I should do and what you can do. I would be pleased to discuss this with you.
The applicant submits the email confirms that the plaintiff knew of the August 2014 will, that he knew the will appointed the applicant as executor of the estate and he sought of the VCAT that an application for administration remove the applicant as executor of the estate of the deceased.
Further, the applicant submits there has been a misconception that the two wills made on 29 August 2014 are inherently questionable. He contends that the will first in time was not properly witnessed and so a second attempt was then made. Notwithstanding that the provision in the wills was uncontroversial, the plaintiff’s solicitor proceeded on the basis that testamentary capacity needed to be investigated with medical reports to be provided and the circumstances of the execution of the will being investigated.
The applicant seeks that his costs be paid by the plaintiff personally, assessed on an indemnity basis.
Plaintiff’s submissions
The plaintiff submits that the applicant’s conduct both before and after the grant of letters of administration has caused substantial delay in the resolution of the application and has also caused unnecessary costs.
The plaintiff submits that the applicant has been secretive and desultory in his conduct which, in the first place, caused the revocation application to be made and caused lengthy delay in its resolution. He failed to provide a copy of the will to the plaintiff when the plaintiff was the deceased’s administrator; failed to confirm that a will existed until about three weeks after the deceased’s death; failed to provide a copy of the executed will to the plaintiff until about two weeks after that and failed to file an affidavit in support of his application for revocation.
The plaintiff submits that the applicant’s culpability is heightened by the fact that the applicant is a solicitor and that the applicant should be responsible for the costs of the proceeding and his application for revocation. However, given that the plaintiff and the applicant are approximately equal beneficiaries under each of the deceased’s wills and on an intestacy, the plaintiff is prepared for all of the costs to be paid out of the estate of the deceased. In effect, this would impose only part of the burden of the costs on the applicant.
Consideration
The applicant’s conduct both before the grant of letters of administration and after seeking to revoke the grant caused a lengthy process for the resolution of the administration of the estate. Before the plaintiff’s application for a grant on intestacy, the applicant did not send a copy of the will to the plaintiff referred to in the email dated 28 April 2018. Had he done this, the plaintiff would not have made his application for the grant on intestacy. After the applicant issued his summons for revocation, the applicant withheld relevant information that caused the delay in the finalisation of the revocation application. The applicant is a solicitor and must be aware of his obligations under the Civil Procedure Act 2010 to minimise delay, to disclose the existence of relevant documents and to conduct his application for revocation in an efficient and timely manner. Overall, the applicant failed to communicate with the plaintiff in a meaningful manner, causing significant delay and incurring costs that should not have been incurred.
The factual background establishes that it was reasonable for the plaintiff to assume that the deceased did not leave a will and the plaintiff had a proper basis for his application for a grant of letters of administration on intestacy, as well as a proper basis to resist the revocation application. In respect of the plaintiff’s knowledge of any specific will of the deceased in the period before the plaintiff made his application for a grant of letters of administration on intestacy, the plaintiff accepts that in 2014 the applicant told him that he was preparing a will for the deceased but what he was shown was a proposed will. As the plaintiff had issues with the proposed will, the applicant showed further drafts to him but no wills signed by the deceased were shown to him. After the plaintiff was appointed the deceased’s administrator by the VCAT in October 2016, the applicant did not provide any of the deceased’s documents to him, despite the of plaintiff’s requests of him. Further, in the course of preparing the deceased’s home for sale, the plaintiff did not find any wills made by the deceased in her home.
The applicant’s submission that the plaintiff arguably perjured himself in his affidavit in support of the application for a grant on intestacy on the basis of the email to the VCAT is without foundation. The plaintiff’s explanation for the email is accepted by the Court in light of the then prevailing circumstances, namely, that he was not aware of any specific will made by the deceased; that if there were, he expected the applicant would have made himself the executor and it would not be appropriate for the applicant to act as executor in view of the revocation of the deceased’s power of attorney to the applicant by the VCAT.
In respect of the applicant’s conduct of his application for revocation of the grant on intestacy, the applicant failed to comply in a substantial manner with the procedural and evidentiary requirements in making the application and did not comply with his overarching obligations under the Civil Procedure Act 2010. These failures can be seen in the matters now set out below.
The applicant did not file an affidavit in support of the application or exhibit the August 2014 will that he relied on to make this application. When copies of the wills were subsequently provided by the applicant, it was readily discernible that the two August 2014 wills raised issues as to their validity, with differences in the deceased’s signatures and with the wills executed after the time that the deceased suffered from significant health issues that would question her testamentary capacity. In addition, the originals of the three wills were not produced, thereby raising the presumption of their destruction, particularly in light of the plaintiff not having found any wills in the deceased’s home.
Having accepted the plaintiff’s proposal on 13 June 2018 to resolve the dispute after discussion with his counsel, the applicant then reversed his position without providing any explanation for his change of mind and withdrew his consent.
Following this reversal, the applicant failed to respond to the letter dated 25 July 2018 from the plaintiff’s solicitor. This was a significant letter that raised many concerns in respect of the wills and the applicant should have responded to it.
Despite being required to file any affidavits before the hearing date of 10 August 2018, the applicant did not file his affidavit until 9 August 2018, leaving no time for the plaintiff to respond to it. He also failed to provide the originals of the three wills until the hearing on 10 August 2018. The applicant’s affidavit sworn 9 August 2018 is a short affidavit and the evidence in it, except for perhaps the plaintiff’s email to the VCAT of 5 April 2018, would have been within his knowledge when he issued his revocation application. There is also no explanation for the applicant taking approximately one and a half months to file his affidavit. Had the applicant complied with the requirements for filing his affidavits and for producing the original wills in a timely manner, the revocation application could have been finalised on 10 August 2018.
Costs have been incurred by the plaintiff in making an application for the grant on intestacy and for the responding to the applicant’s summons for rectification. Given the plaintiff’s preparedness for all costs to be paid out of the estate, the Court will make the following orders:
(a) the plaintiff’s costs of an incidental to the application for a grant of letters of administration on intestacy, assessed on an indemnity basis, be borne equally by the plaintiff and the applicant and be paid out of the estate of the deceased;
(b) the costs of the plaintiff and the applicant of an incidental to the applicant’s summons for revocation of the grant of letters of administration of the estate, assessed on the standard basis, be borne equally by the plaintiff and the applicant and be paid out of the estate of the deceased;
(c) otherwise the summons for revocation be dismissed.
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