Court refuses undue influence estate caveat removal

A caveat can be lodged in the court registry against the issue of a grant of probate or letters of administration. The applicant for the grant then needs to decide whether to apply for an estate caveat removal order or to go to a trial to have the deficiencies alleged by the caveator decided. Similar measures apply in all Australian states.

A Victorian court was recently asked to remove two caveats lodged in the context of allegations of testamentary incapacity and undue influence over the period during which a testator made two wills.

Clarice Robustelle died aged 91 in March 2021, having never been married and with no children.

Clarice had been actively involved in farming on her property near Wangaratta for many years. From 2004 she was assisted in those endeavours by Stephen Atkins and his son Bryden who were allowed to occupy another residence on Clarice’s property.

Other than some small pecuniary gifts, Clarice’s will in March 2018 left the bulk of her estate to Stephen, or his son Bryden if the former did not survive her.

Steven died in February 2020.

Bryden applied for a grant of letters of administration for Clarice’s 2018 will.  At the time of the application, the estate was valued at approximately $7.25m and at the time of hearing, at $8.6m.

Before a grant was issued, Clarice’s niece Jeanette Clarke filed a caveat against the grant on the basis that Clarice lacked the requisite testamentary capacity to make the 2018 will and that – alternatively – she made the will as a result of Stephen’s undue influence.

Jeanette sought to impugn that will and an earlier will made in August 2012, also on the ground of Stephen’s alleged undue influence.

In response, Bryden promptly applied to the Supreme Court for removal of the caveat on the basis that Jeanette – not being a beneficiary under either will – had no standing to make it.

Justice Kate McMillan observed though – when the matter came before her – that Jeanette would have standing if she sought to propound a will made in July 2008 under which she was the major beneficiary. She directed Bryden to also seek a grant of the 2012 will, in the alternative.

As expected, Jeanette caveated that will thereby allowing consideration of Bryden’s application for the removal to the caveats in the context of the validity of all wills.

That argument came before Justice Steven Moore who had to decide whether Jeanette had established a prima facie case sufficient enough to warrant full consideration and determination at a trial or whether the caveats should be summarily removed.

He noted Jeanette’s contention that Clarice’s cognitive abilities had been in long-term decline since 2012 when she reported difficulties remembering names, culminating in a VCAT declaration in 2017 (later revoked in 2018) that she was unable to make judgements about herself or her assets.

He also pondered allegations of Stephen’s coercive conduct – starting in 2006 and continuing until his death in 2020 – and whether they might establish Clarice was subject to his control when the 2018 and 2012 wills were made.

Bryden contested the allegations and asserted that they failed to prove actual coercion as opposed to a mere opportunity for coercion.

The court observed though that Jeanette – to successfully resist the removal of the caveats – did not have to prove the alleged coercive behaviour but rather, only had to establish a prima facie case.

His honour also concluded that evidence of mental disorder 9 months before the 2018 will was sufficient to warrant a trial in relation to that will’s validity.

He refused to order removal of the caveats and the dispute will go to trial where a judge will decide whether or not to accept each of Jeanette’s allegations.

Re Robustelle (No 2) [2023] VSC 72 Mooe J, 24 February 2023

 

source https://qldestatelawyers.com.au/court-refuses-undue-influence-estate-caveat-removal/

One month apart ends de facto spouse intestacy status

Does a temporary separation by a unmarried couple end their de facto spouse intestacy status in relation to either one of their deceased estates?

Liam Dillon died in September 2020 aged 29 years with no will, survived by his mother Virginia Maiden and by Jane Grimley, his de facto partner.

Virginia made an application for letters of administration in intestacy shortly after his death, claiming Liam’s long term de facto relationship with Jane had ended in August 2020, only one month before his death.

Jane responded with a caveat against that grant in the Supreme Court in Rockhampton and sought her own grant on the basis that she was Liam’s surviving spouse.

The matter for determination by Justice Graeme Crow was whether Jane was Liam’s de facto spouse at the time of his death which in turn depended on a finding as to whether they were living together on a genuine domestic basis for a period of at least 2 years ending on Liam’s death.

The couple had been living together in rented premises in Rockhampton since 2011. Jane’s evidence was that one of Liam’s several emotional issues was that he was “possessive” and that “later in the relationship” their frequent fighting made things “not good” .

She decided she needed to leave the relationship temporarily.

There was no dispute that their relationship was that of genuine de facto spouses. In contention was whether that relationship had ended before Liam’s death.

Jane swore she told Liam in late August that she needed some time apart but it was not her intention to separate indefinitely.

All of this was accepted by the Court but it was Jane’s further assertions that they continued to reside together and shared the same bed that were not.

Liam had lost his employment as a bulldozer operator at BMA Blackwater just a week earlier but concealed this from Jane who only learnt of it from her father who also worked there.

Numerous text messages that followed the fallout from those events between Jane, Virginia and Liam’s sister, Shannon recorded that Liam wasn’t dealing well with their relationship having ended. Among other things, Jane has messaged that she had put a lock on her bedroom door.

Various text messages between the pair themselves made it clear that although they still resided together, they occupied separate bedrooms and were living separate and apart. Against Liam’s protests, Jane reiterated the relationship had ended and told him he must accept it and move on.

What’s more, in her police statement after Liam’s death, Jane is recorded as saying “Approximately six weeks ago, Liam and I separated.”

It transpired that Jane had emailed a notice of tenancy termination to their landlord in early September and neighbours observed she appeared to have vacated the property many weeks before her partner’s death.

Justice Crow conceded that physical separation or a short term break up does not of itself end a de facto relationship but had no hesitation in concluding  a permanent breakup had occurred in that the pair no longer had a commitment to a shared life.

Both parties had, the judge reasoned, “publicly acknowledged to their friends that the relationship had ceased”.

He observed that de facto relationships are by nature “fragile” and “much more easily ended” than marriage which requires formal dissolution by divorce, regardless of a relationship having long-ago ended.

Although the continuation or termination of a de facto relationship is something “that is harder to pin down”, courts will need to adjudicate such issues well into the future.

Estate Liam Rowan Dillon [2023] QSC 27 Crow J, 22 February 2023

source https://qldestatelawyers.com.au/one-month-apart-ends-de-facto-spouse-intestacy-status/

Denial of court authority warrants administrator’s removal

Even minor beneficiaries are entitled to apply to the court for an administrator’s removal to ensure the prompt and impartial administration of a deceased estate when this does not occur.

Stan Tream died in November 2018, having made his last will in February 2015 dividing his estate into shares.

He left 30% to meet the estate expenses including a funeral in Poland, 40% for his de facto spouse Blossom, 15% to Blossom’s daughter Helen and the remaining 15% to be shared among 5 others.

Stan’s home at Edmonson Park in Sydney’s south-west was eventually sold in May 2021 for $1.25m but his other residence in leafy Killara on the North Shore that Blossom had occupied since August 2019 – valued at $3.25m – remained unsold.

The two executors appointed in the will – Diana Kuitkowski and Mick Wywrota – who were also gifted a 3% share of the estate between them, renounced their roles and allowing Blossom to obtain a Grant of Letters of Administration in August 2020.

Tomasz Kuitkowski – entitled to a 2% share – applied to the NSW Supreme Court in February 2022 with the support of two other beneficiaries to have an independent administrator appointed in Blossom’s place.

Tomasz’ was concerned about the delay in finalising the relatively simple estate and that Blossom appeared to have decided to stay put in the Killara home where she was living rent-free.

He also demanded Blossom reimburse the estate for rent of that home totalling more than $189,000.

Despite the estate receiving the sale proceeds from the Edmonson Park property, Blossom had by the date of the application only made interim distributions to three of the beneficiaries (including Tomasz) of just under $50,000 each.

Justice Steven Robb accepted the contention that Blossom had no intention of leaving Killara and was endeavouring to appropriate it to herself as her share of the estate.

He also found in favour of Tomasz’ assertions that she had – without in any co-beneficiary consent – used estate funds to pay her own Telstra bills and for unrelated services provided by her daughter and her friends.

Blossom – who was self-represented at the final hearing – failed to argue any grounds on which she ought to be permitted to remain in her role. Rather her contention was that the court had no jurisdiction to order her removal.

Justice Robb thought otherwise.

The 2.5 year delay in the stated ministration was untenable in his view; as was her failure to make appropriate distributions promptly following the sale of the first property.

His Honour went on to say that Blossom’s continued occupation of the Killara property created a conflict with the other beneficiaries and was not consistent with her fiduciary obligations to the estate.

“The Court can not safely allow her administration to continue,” he observed.

He also noted that Blossom’s denial of the Court’s undoubted jurisdiction to consider her removal was of its own, enough to warrant her removal.

Notwithstanding her manifest confusion and that she was “acting upon the basis of fantasy and irrationality”, her denial of the authority of the court from whom she had received the grant meant she “was no longer a fit and proper person to administer the estate”.

An independent administrator was ordered to be appointed so that the estate administration could be promptly completed.

The judge ordered that Tomasz’ considerable legal costs –  there had been 13 separate directions hearings –  be paid from the estate but reserved the right for him to seek to have Blossom made personally responsible for such costs at a later date.

Removal of an executor or estate administrator is likewise allowed for in Queensland pursuant to section 6 of the Succession Act 1981 (Qld).

Kuitkowski v Tream [2023] NSWSC 145 Robb J, 27 February 2023 Read case

source https://qldestatelawyers.com.au/denial-of-court-authority-warrants-administrators-removal/