British Limbless Ex Service Men's Association v Parker

[2012] NZHC 633

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-3744 [2012] NZHC 633

BETWEEN  BRITISH LIMBLESS EX SERVICE MEN'S ASSOCIATION

First Plaintiff

ANDROYAL ARTILLERY CHARITABLE FUND AS TRUSTEE OF ROYAL ARTILLERY ASSOCIATION

Second Plaintiff

ANDSARAH MARIE PARKER Defendant

Hearing:         4 November 2011

Counsel:         G Hall and K Scott for Plaintiff

G Illingworth QC and A J Donovan for Defendant

Judgment:      3 April 2012 at 4 pm

RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON (Summary Judgment)

This judgment was delivered by me on 3 April 2012 at 4 pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date ..........................

Solicitors:

Buddle Findlay, PO Box 1433, Auckland

Haigh Lyon, PO Box 119, Auckland

BRITISH LIMBLESS EX SERVICE MEN'S ASSOCIATION V PARKER HC AK CIV-2011-404-3744 [3 April

2012]

[1]      The plaintiffs, the British Limbless Ex Servicemen’s Association and the Royal  Artillery  Charitable  Fund,   and   the  defendant,   Ms   Sarah   Parker,   are beneficiaries under the will of Mrs Sylvia Milligan who died in Dunedin on 11 May

2010.     Ms  Parker  is  Mrs  Milligan’s  only  grandchild.     She  has  commenced proceedings in the Family Court seeking greater provision under Mrs Mulligan’s will.   The relief she seeks would, if granted by the Family Court, result in a corresponding adjustment to the plaintiffs’ bequest.

[2]      In  this  separate  proceeding,  the  plaintiffs  seek  an  order  for  specific performance against Ms Parker, directing her to sign a deed of arrangement to give effect to an agreement they say they concluded with her before she commenced her proceeding  in  the  Family  Court.    The  plaintiffs’  claim  is  in  essence  that  the agreement was concluded, by an exchange of letters, to settle the claim Ms Parker threatened to make under the Family Protection Act 1955 (“the Act”), that she is bound by the agreement and that she is obliged to sign a deed of arrangement.

[3]      In the present application, Ms Parker seeks summary judgment dismissing the plaintiffs’ claim.   Her application is made under High Court Rule 12.2(2), which states:

(2)      The court may give judgment against a plaintiff if the defendant satisfies  the  court  that  none  of  the  causes  of  action  in  the plaintiff's statement of claim can succeed.

[4]      The  plaintiffs,  both  charities,  oppose  Ms  Parker’s  application.     They themselves sought summary judgment but have withdrawn their application.  They say that, while firmly believing they have a binding agreement, the claim is best determined at a full hearing.

[5]      Mr  Gubb,  the  executor  of  the  estate,  is  not  named  as  a  party  in  these proceedings though he is the respondent in the Act proceeding that Ms Parker has commenced in the Family Court.  Mr Gubb has filed a notice that he will abide the decision in this Court.

Statement of Claim

[7]      In the sole cause of action the claim alleges that:

9.On or about 15 April 2011, a binding agreement was concluded between  the  plaintiffs  and  the  defendant  whereby  the  plaintiffs agreed to forgo $65,000 with the effect that the defendant’s bequest would be increased by this amount, resulting in a total amount payable to her of $250,000 (“Agreement”).

Particulars

(a)       Letter  of  24  March  2011  from  the  plaintiffs  by  their solicitors, Buddle Findlay, to the defendant’s former solicitors, Urlich McNab Kilpatrick; and

(b)      Letter of 15 April 2011 from Urlich McNab Kilpatrick confirming that the defendant accepted the plaintiffs’ offer and  saying  further  that  they  had  “notified  the  Estate’s solicitor of the agreement reached.”

[8]      Materially, the relief that the statement of claim seeks is confined as follows: (a)     An order  for specific performance by the defendant  of the

Agreement;

(b)      An order directing the defendant to execute the Deed; and

(c)       Costs on a solicitor-client basis.

[9]      The bases on which this relief is sought are the alleged binding agreement pleaded at [9] of the statement of claim, and the further pleading at [10] to [12] of the statement of claim:

10.      On or about 29 April 2011, the Executor’s solicitor wrote to Buddle

Findlay recording:

We have advised the executor that an agreement has been reached.  Before a substantial distribution of the estate assets can be made, with the exception of a retention for taxes and final accountancy and legal fees, we require a deed of family arrangement to be entered into between the executor and the affected beneficiaries.

11.      On or about 6 May 2011, the plaintiffs received a copy of the deed of

settlement (“Deed”) from the Executor’s solicitors.

12.On or about 6 May 2011, after receiving a copy of the Deed, the Executor’s solicitors informed the plaintiffs that the defendant was “retracting her position with regard to the settlement offer”.

[10]     At the hearing, counsel for the plaintiffs elaborated that it is the plaintiffs’

case that:

(a)       Ms Parker was in breach of the agreement when she gave notice

“retracting her position”;

(b)The parties are required, as a consequence of their agreement to the adjustment of their respective bequests, to take such steps as are usual to give effect to such agreements.

Facts

[11]     The background facts are not in dispute.

[12]     Mrs Milligan and her husband (who predeceased her) had a single child, a daughter, Anne Milligan who died in 1989. Ms Parker is the child of Anne Milligan and Mrs Milligan’s only grandchild. Ms Parker has two young children, Breeze Parker-Watt and Shavique Parker.

[13]     Mrs Milligan made her last will on 17 May 2006. In that will, she provided for a number of gifts of specific property, money and residue to various people and organisations. Of most relevance are the following gifts:

(a)       A gift of an emerald ring to Ms Parker;

(b)A gift of $180,000 to Ms Parker, which Mrs Milligan hoped she would use to buy a house;

(c)      A gift of $5,000 to Ms Parker, which Mrs Milligan hoped she would use to take a trip to England;

(d)A  gift  of  $75,000  to  Breeze  Parker-Watt  to  be  applied  for  her education and welfare; and

(e)       A gift, in equal shares, of the residue of her estate, after the payment of all debts and expenses, to the plaintiffs.

[14]     Mrs Milligan died at Dunedin on 11 May 2010. Probate was granted to the executor, Mr Gubb, on 1 June 2010. A draft statement of the assets and liabilities of the estate at 13 May 2011 shows a balance of around $840,000.  The parties agree that the residue of the estate will be in the region of $540,000, meaning that the residual beneficiaries would each receive around $270,000.

[15]     Ms Parker feels that the will makes inadequate provision for her, particularly when her share of the estate is contrasted with that which the plaintiff shall be receive. Ms Parker advised the firm of lawyers acting for the estate, McLeods, that she was unhappy with the distribution.  She then engaged Whangarei lawyers, Urlich McNabb Kilpatrick. They wrote to McLeods on 16 September 2010 and set out their opinion that a Judge would find in Ms Parker’s favour were she to make a claim for a greater share of the  estate.   They asked McLeods,  as the estate solicitors, to approach the plaintiffs with a proposal that their legacies be reduced to provide for Ms Parker, by each forgoing $125,000 and Ms Parker’s share being increased correspondingly by $250,000. Their letter concluded by stating:

If [the charities] are agreeable, we will draft a Deed of Arrangement to be signed, confirming the adjusted distribution in full and final satisfaction of all issues.

[16]     On 6 October 2010, McLeods wrote to the plaintiffs and informed them that Ms Parker intended to make a claim for greater provision from Mrs Milligan’s estate, which  could  potentially  impact  on  the  amount  of  the  residue  available  for distribution to them. They wrote (enclosing a copy of the 16 September letter):

Claims of this type may be settled by negotiation, in which case the terms of settlement are recorded in a Deed of Family Settlement.  The parties to that deed are the executor, the claimant, and any other affected parties.

…

If it is not possible to negotiate a settlement, the claimant may apply to the

court for an order seeking greater provision…

In due course please advise your response or ask your lawyers to contact us on your behalf.

[17]     Almost six months later, on 24 March 2011, the firm of Buddle Findlay (instructed by Wilsons LLP, the English solicitors of the plaintiff charities) wrote directly to Urlich McNabb Kilpatrick.   The letter, copied to McLeods, questioned whether Ms Parker could succeed in a claim against the estate.   Nonetheless it included a proposal to increase Ms Parker’s bequest, by $65,000, to a figure of

$250,000.  Relevantly the letter states:

4.We  understand  from  the  correspondence  that  your  client  has proposed that the legacies made to the Charities be reduced in order to make further provision for her.  The sum of $250,000 has been sought.  We also understand that notice has been given to the estate’s solicitors of Ms Parker’s intention to make a claim under the Family Protection Act.

6.As you are aware, even if the Court was minded to increase Ms Parker’s share of Mrs Milligan’s estate, it will only vary the terms of the will to an extent sufficient to repair any breach of moral duty. Beyond that point the wishes of the testatrix will prevail.  Ms Parker seeks a significant sum of money.  In our view the Court would be unlikely to award anything approaching the amount sought.   That being so, there is a strong possibility that even if the amount payable to Ms Parker is increased, such benefit will be outweighed by the cost to her of bringing the proceeding.

7.Notwithstanding all these factors, the Charities recognise that they too would incur costs in opposing Ms Parker’s application.   They also have instructed us that they wish to respond reasonably to Ms Parker’s request.   In all these circumstances the Charities propose that  Ms  Parker’s  bequest  be  increased  by  the  sum  of  $65,000 resulting in a total amount payable to her of $250,000.  In our view Ms Parker will not be awarded more than $65,000 by the Court. This offer includes a contribution to Ms Parker’s legal costs to date.

8.Please note that this letter is written “without prejudice except as to costs” and accordingly gives the Charities cost protection should Ms Parker choose to reject the offer and proceed to Court.

[18]     The letter contains no express reference to a deed of arrangement or of family settlement.

[19]     On 15 April 2011, Urlich McNabb Kilpatrick sent a pair of letters, both

expressing Ms Parker’s acceptance of the charities’ proposal.  One was to McLeods.

It also expresses Ms Parker’s consent to the distribution of the estate and invites advice “as to when distribution may be expected.” The other letter was to Buddle Findlay.    It  makes  no  express  reference  to  a  deed  of  arrangement  or  family settlement.  It states:

...Our client accepts the offer contained in clause 7 of your letter, being the sum of $65,000 from the Charities’ bequest.   This increases our client’s bequest to $250,000.

We have notified the Estate’s solicitor of the agreement reached.

[20]     On 29 April 2011, McLeods wrote to Buddle Findlay stating that they had advised the executor that Ms Parker and the plaintiffs had reached an agreement and, before a substantial distribution of the estate assets could be made, they required “a deed of family arrangement to be entered into between the executor and the affected beneficiaries”, which they would draft and forward to all beneficiaries for approval together with an interim release and indemnity form.

[21]     On 6 May 2011, McLeods sent a letter to Wilsons LLP and to Urlich McNabb Kilpatrick to which they attached a deed of settlement that named, as parties, Mr Gubb, Ms Parker and the plaintiffs. The letter states:

Further to correspondence of 15 April between Urlich McNab Kilpatrick and Buddle Findlay (copied to us) confirming the agreement reached between Ms Parker and the British Limbless Ex Servicemen’s Association and the Royal Artillery Association, we now enclose a deed of settlement for signature by the parties.

The intent is that the counterpart copies will be amalgamated into one document for signing by the executor, and then a full copy will be provided to all parties.

Please have your clients sign the document and return a full signed copy to us by email as soon as possible.

Once the document has been signed by all parties, and we have been instructed by the executor, we will begin the process of distribution of the estate assets in terms of the will and the deed settlement.

[22]     On that same day, having received McLeods’ letter electronically,  Urlich McNabb Kilpatrick emailed McLeods indicating that Ms Parker was “retracting her position   with   regard   to   the   $65,000   offer   of   settlement”.   McLeods   then communicated this stance to Wilsons LLP. Wilsons replied on 6 May recording

formally reading that the charities did not accept the “retraction” and that they would

consult further with Buddle Findlay.

[23]     Ms Parker has explained in her affidavit that she felt under pressure to accept the  $65,000  adjustment.  Her  affidavit  records  that  the  settlement  discussions occurred not long after the birth of her second child. She states that she felt rushed and that she was not provided with specific advice as to her prospects in a Family Court proceeding, but was simply advised that the proposal was a good one and that she should accept it. She further states that between the letter of 15 April 2011 and 6

May 2011, she began to have doubts about the settlement and wished to seek a second legal opinion. She therefore instructed her solicitors to “retract” the acceptance.

[24]     Ms  Parker  instructed  new  lawyers,  Haigh  Lyon.  After  correspondence between that firm and Buddle Findlay she filed proceedings at the end of May 2011 in the Family Court at Waitakere, under the Act.

Issues for determination

[25]     The   overarching   issue   for   determination   is   whether   Ms   Parker   has demonstrated that the sole cause of action in the plaintiffs’ statement of claim cannot succeed.  A defendant is entitled to summary judgment only if the plaintiff ’s claim is so hopeless that there is “no real question to be tried”.[1]

[1] E & E Developments Ltd v Housing New Zealand Ltd, CA 280/2010 [2012] NZCA 7 at [10].

[26]     The onus is on Ms Parker to prove that the cause of action cannot succeed.

[27]     At the hearing, counsel for Ms Parker submitted that whether or not there is a real question to be tried turns essentially on the answers to two key questions:

(a)      Whether, as the plaintiffs allege in  their sole cause of action, the parties concluded a binding settlement agreement to modify their respective entitlements under the will by an exchange of two letters;

and if it was

(b)Whether  the  Court  should  grant  the  equitable  remedy  that  the plaintiffs seek (orders requiring Ms Parker to specifically perform the agreement and directing her to so perform by executing a deed of arrangement that the solicitors for the deceased’s estate distributed to the parties).

[28]     Ms Parker insists that the two letters (dated 24 March and 15 April 2011) on which the plaintiffs base their claim did not give rise to a contractually binding settlement agreement, and that in any event there is no prospect that the Court would grant the orders sought for specific performance. Such orders would, she contends, be futile  as  the agreement  will  not preclude Ms  Parker from  lodging a Family Protection Act  claim  with  the  Court.  On  these  bases,  Ms  Parker  contends  the plaintiffs’ claim cannot succeed.

[29]     If I find it arguable that a binding settlement agreement was concluded by the two letters in question, Ms Parker’s application for summary judgment must be dismissed and the plaintiffs’ claim will then have to proceed to trial. That is, unless I find that the Court, at trial, will inevitably conclude that it would be futile to grant the orders that the plaintiffs seek.

Discussion

Is it reasonably arguable that the plaintiffs and the defendant concluded a binding settlement agreement?

[30]     It is common ground that the primary question is one of intention, to be determined by reference to the relevant context and factual matrix, including the correspondence  of  24  March  and  15 April  2011.  However,  the  parties  seem  to disagree as to the relevance of earlier correspondence from September and October

2010 in ascertaining intention.

Submissions for defendant

[31]     Counsel for Ms Parker submits that the correspondence of 24 March and 15

April, when viewed in the relevant context and factual matrix, cannot be consistent with an intention to enter into a binding settlement deed that did not include all parties, including the executor.   Rather, the correspondence was part of a wider negotiation in which it can only be viewed as the non-binding or incomplete prelude to a tri-partite formal agreement to be embodied in a form deed of arrangement on terms that the parties had  yet to agree with the executor.   He submits that the negotiations  were  incomplete,  as  the  clearly  expressed  intention  of  both  the defendant and the executor was that any agreement would have to be the subject of a formal  deed.   This,  he  says,  is  evidenced  by  several  statements  made  by their respective solicitors in the course of negotiations:

(a)       In their letter of 16 September 2010, Urlich McNabb Kilpatrick said:

If they are agreeable, we will draft a deed of family arrangement   to   be   signed,   confirming   the   adjusted distribution in full and final settlement, and

(b)      McLeods’ letter of 6 October 2010 states:

Claims of this type may be settled by negotiation, in which case the terms of settlement are to be recorded in a Deed of Family Settlement.

[32]     These communications, counsel submits, demonstrate that both the defendant and the executor expected and required a tripartite agreement.  He urges there can be no dispute who the parties to the deed were to be, as the executor expressly communicated to the plaintiffs in the initial correspondence:

The parties to that deed are the executor, the claimant, and any other affected parties.

[33]     Further, counsel argues, it is clear from the correspondence exchanged after

15 April 2011 that the three parties did not reach agreement on all the necessary terms:

(a)       McLeods’ letter of 29 April 2011 to Buddle Findlay states:

We have advised the executor that an agreement has been reached.  …We require a deed of family arrangement to be entered into between the executor and the affected beneficiaries…

(b)      McLeods’ letter of 6 May 2011 to the parties says:

Once the document has been signed by all the parties, and we have been instructed by the executor we will begin the process of distribution of the estate in terms of the will and the deed of settlement.

(c)      The  defendant  withdrew  her  consent  and  the  solicitors  for  the executor promptly followed suit, formally withdrawing both their correspondence and the deed:

We have received notification… that Ms Parker is retracting her position.   Please disregard out letter and deed of settlement attached.

[34]     In these circumstances, counsel argues it could not have been envisaged that an arrangement that did not include the agreement of the executor would be legally binding.   The execution of a deed by all parties, including the executor, was a prerequisite to legal validity of any arrangements made between the plaintiffs and the defendant.

Submissions for plaintiffs

[35]     Counsel  for  the  plaintiffs  submits  that  the  legal  requirements  for  the formation of a contract have been met as follows:

(a)      In the letter dated 24 March 2011, the plaintiffs made a clear offer to settle the intended claim that was capable of acceptance;

(b)By way of her solicitors’ letter dated 15 April 2011, Ms Parker clearly and unequivocally communicated her acceptance of the plaintiffs’ offer;

(c)       There was clearly an appearance of consensus on sufficiently certain

terms.     Ms  Parker’s  bequest  would  be  increased  by  the  sum  of

$65,000 to a total amount payable to her of $250,000 to the plaintiffs’ detriment.  There were no further essential terms to be agreed between the parties; and

(d)      There can be no question that valuable consideration has been given. [36]     Counsel for the plaintiffs contends that it is material that:

(a)      No mention was made of a deed of arrangement in the Ms Parker’s acceptance letter of 15 April 2011.  Her acceptance was unequivocal and was not expressed to be conditional upon a deed of arrangement being executed by the parties and the executor;

(b)There was nothing in the wider negotiations (express or implied) to suggest an intention to postpone contractual liability, as between the plaintiffs and Ms Parker, until a formal contractual document had been executed. At no point did Ms Parker say or imply that she would not be bound until such a deed was executed.

[37]     Counsel acknowledges that a deed of arrangement, to which the executor

would be a party, was at least contemplated in Urlich McNabb Kilpatrick’s letter of

16 September 2010. However, he submits that it does not necessarily follow that the parties did not intend to make a concluded agreement in March/April 2011. The earlier letters predate the later correspondence by some five or six months and he infers that arguably they should not form part of the factual matrix for the purposes of assessing contractual intention.

[38]     Counsel also acknowledges that the standard practice may be to record an agreement to vary a will in a deed of arrangement.  He submits that this too does not necessarily mean that the parties did not intend to make a concluded bargain until such a deed was signed.  Even if they did hold that intention, such a deed would be prepared  merely  to  record  the  agreed  adjusted  distribution,  and  to  meet  the

executor’s standard requirements arising out of s 47(3) of the Administration Act

1969 before he or she proceeds with distribution.[2]

[2] S 47(3) of the Administration Act 1969 states:

47 Protection of administrator against certain claims

(3)   No person who may have made or may be entitled to make an application to which this section applies shall be entitled to bring an action against the administrator or trustee by reason of his having distributed any part of the estate if the distribution was properly made, in accordance with subsection (2) of section 48 of this Act, by the administrator or trustee after the person (being of full legal capacity has advised the administrator or trustee in writing or acknowledged in any document that the person either –

(a)    Consents to the distribution; or

(b)   Does not intend to make any application that would affect the proposed distribution.

[39]     When the question of intention is so viewed it is arguable, counsel submits, that   the   parties   to   this   proceeding   intended   that   the   March/April   2011 correspondence would create legal relations and oblige them to do what is usually required to give effect to such an agreement, namely enter into a standard form deed of arrangement with the executor.   Such a deed, he contends, need go no further than:

(a)       The  parties’  own  agreement  that  the  agreed  adjustment  be  in settlement of the claim; and

(b)      The consent to distribute in accordance with the agreed adjustment

already given to the executor in the defendant’s letter of 15 April

2011, as required by s 47(3).

[40]     Counsel for the plaintiffs submits that on this view, the plaintiffs’ claim may

yet succeed and should go to trial.

Assessment

[41]     In assessing the parties’ intention, I agree with counsel that the relevance or

otherwise of the September and October 2010 correspondence is pertinent. If this

correspondence is a relevant part of the matrix of fact, I agree with Mr Illingworth’s

interpretation that it suggests that the parties intended to execute a formal deed and

to obtain the executor’s consent before the agreement would be binding.

[42]   On the other hand, the plaintiffs have an arguable case that the earlier correspondence is not relevant given that this correspondence is remote by some five or six months from the date of the correspondence that is plainly material.

[43]     Moreover, it may be that it is a matter of course that deeds of arrangement are standard in their terms, and simply record the adjusted distribution as agreed by the claimant  and  affected beneficiaries,  and  otherwise  incorporate usual  or  standard terms that executors invariably require before implementing the essential agreement of the affected parties. However, there is no evidence before me that pertains to this issue.

[44]     I  do  not  therefore  accept  Mr  Illingworth’s  submission  that  there  can  be nothing more of a factual nature that could assist in the determination of the vital question of what the parties intended. Once all relevant evidence is established, it may affect the way the Court construes the parties’ intentions.

[45]     As the Privy Council in Jones v Attorney-General cautioned, it is enough if there is a “theoretical possibility” that supports the plaintiff’s claim and which might be open to the tribunal of fact on the evidence. [3]  The question whether the parties intended to form an agreement once the offer was accepted, or once a deed of arrangement was executed, is a question that is best dealt with by the court when all the  evidence  is  before  it.  To  my  mind,  summary  judgment  is  inappropriate  to

[3] Jones v Attorney-General [2004] 1 NZLR 433 at [10].

determine the issue of intention.

[46]     In reaching this view, I do not overlook Mr Illingworth’s submission that the

Court, at trial, will inevitably conclude it would be futile in any event to grant the orders for specific performance that the plaintiffs seek. I turn now to that submission.

Is an order for specific performance futile in any event?

[47]     Counsel for Ms Parker advances two grounds for his futility argument. First, he argues that, even if the Court were to determine that a binding contract was concluded between the parties, such an agreement does not preclude Ms Parker from bringing a claim under the Act for further provision from Mrs Mulligan’s estate, or oust the Court’s jurisdiction to make such a provision. Accordingly, an order for specific performance, and therefore the substantive proceedings, would be futile.  He

relies on Re Julso to support these contentions.[4]

[4] Re Julso [1975] 2 NZLR 536.

[48]     I do not unequivocally accept this submission.  On the one hand, Somers J in Julso referred to a number of cases showing that persons entitled to claim under the Act may not contract out of their rights; that a purported release is not binding on them.

[49]     On the other, it is plain that that court should retain an ability to review an agreement. As Somers J said:[5]

[5] At 539.

The Court is not obliged as of course to consent to an order or to stay an action in terms of a scheduled compromise once the jurisdiction under s 4(1) has been established. In my view, the Court has a jurisdiction to approve or not approve the order which is sought.

[50]     Following such a review, the court may approve an agreement as being either consistent with the principles laid down in the Act, or as wise in the particular circumstances.[6]  The plaintiffs seek such an approval in applying for an order for specific performance.

[6] At 539.

[51]     Once such approval is given, the terms of the agreement can in fact become binding.   On this point, Somers J quotes Smith J in Public Trustee v Dillon with

approval when dealing with consent orders for such agreements:[7]

[7] Public Trustee v Dillon[1940] NZLR 874.

Again, beneficiaries who compromise claims in an estate may agree to a division of the estate which is not in accord with the principles laid down for the  administration  of  the  Family  Protection  Act  1955,  but  which  is considered wise in the particular circumstances.   Such a deed is usually brought before the Court under the provisions of the code of civil procedure for the Court’s approval: CR538 (f).  When such approval has been given it cannot be the law that any parties to a compromise who would have claims under the Family Protection Act 1955 can thereafter assert them in the face of the court order.

[52]     Hence, while an agreement does not oust the Court’s jurisdiction if Ms Parker has a claim under the Act, it may still be arguable in that outcome that the agreement she has arguably reached with the plaintiffs, should be binding on her.  Otherwise, reaching such a deed or executing a deed to reflect that agreement would serve no purpose. It is arguable that the legislature, in granting the court a discretion to make provision out of a deceased’s estate under s 4, did not intend to enable an applicant to disregard any agreement reached.

[53]     Accordingly, I find that it is arguable that an order for specific performance would not be futile. Rather, it may even bind Ms Parker in the Family Court.

[54]     Counsel for Ms Parker’s second futility argument is that it would be futile for

Ms Parker to sign the agreement because:

(a)      It has been withdrawn by the executor’s solicitors; and

(b)      The executor has not approved it.

[55]     In effect, the submission is that there is no longer a deed in circulation and, even if Ms Parker was required to sign the deed, there is no certainty that the executor would approve and sign it.

[56]     The submission begs the question whether the executor will sign the deed assuming Ms Parker is ordered to do so.  The question is one that might readily be determined on further evidence, the need for which is itself another further militating reason against summary judgment. Certainly, there is evidence to suggest that the executor was happy to abide by any agreement that the parties reached.

Result

[57]     The  defendant’s  application  for  summary  judgment  is  declined.     The Registrar is requested to allocate a case management telephone conference for timetabling purposes.

[58]     Costs should follow the event in accordance with the statutory costs regime. The plaintiffs are entitled to costs on a 2B basis, plus disbursements as fixed by the

Registrar.

Associate Judge Sargisson