March 2020

Deceased estate law and litigation update - March 2020

Contested Probate

It was foreshadowed by the NSW Supreme Court (Court) at the end of 2019 that a new form of case management for contested probate cases would be introduced in 2020.  The aim was to introduce a more rigorous form of case management to facilitate the quick, just and cheap resolution of contested probate cases.

In early 2020, the Court website advised that from 3 February 2020, the Probate List would be case managed by the Probate List Judge (who would take over the List from the senior deputy registrar in probate).

The Court website also published in its probate section a practice guide titled Probate List Guidelines.  Appendices to the Guidelines provide a form of Disclosure Statement (Appendix A) and Standard Form Orders (Appendix B).

All new matters filed on or after 1 January 2020 must follow the Probate List Guidelines.

Each party to a contested probate case must prepare, file and serve a Disclosure Statement prior to the first directions hearing.  This will involve careful consideration and analysis of the legal issues in dispute from the commencement of matters.  There have already been several versions of the Disclosure Statement published on the Court’s website and one needs to ensure the current version is being used.

The rigorous case management of the Probate List also requires the legal practitioner to agree on the form of orders prior to a directions hearing.  Administrative adjournments by prior email to the Probate List Judge’s tipstaff or associate will not be granted unless there are exceptional circumstances.  At directions hearings it is important that matters are dealt with in the most efficient manner by practitioners so as to assist the Court.

Recent NSW Court of Appeal cases

There have been a number of recent Court of Appeal decisions dealing with contested probate and family provision cases.  This provides useful higher court commentary on such cases which often, because of the increased risk of personal liability for the appeal costs, do not proceed past decisions at first instance.

The Court of Appeal decision in Rodny v Weisbord [2020] NSWCA 22 involved an appeal from a decision from Robb J. at first instance relating to an informal testamentary document.

The document was a draft of a Will prepared in mid-August 2008 (document).  A declaration under s8 of the Succession Act 2006 (NSW) was made that the document was intended by the deceased to form her last Will.  The document was admitted to probate.

On appeal, one of the issues looked at was whether the deceased intended that specific document to form her Will.  Allowing the appeal, the Court held that the facts found by Robb J. at first instance did not support a conclusion that the deceased intended the propounded document to operate as her Will.

Probate in solemn form of a formal Will dated 19 December 1997 was granted to the appellant.  Interestingly, the Court also ordered that the costs of both the appellant and respondents, assessed on the ordinary basis, be paid out of the estate.

The Court’s decision in Robinson v Robinson [2020] NSWCA 4 involved an appeal from orders made in chambers at first instance by Pembroke J.  The orders made by the primary judge approved releases under s95 of the Succession Act 2006 (NSW) in respect of any further claim by parties including the appellant.  The releases given by the appellant were part of a Deed of Release dated 6 April 2018 and were given with the benefit of legal advice.

The Court essentially decided that the primary judge correctly approved the releases by reference to s.95(4) of the Act and there was a proper evidential basis for the making of the orders.  The appeal was dismissed with costs.

Recent Cases – Judicial Advice for Trustees

In appropriate circumstances, trustees (which includes Court appointed executors and administrators) can apply to the Court for judicial advice pursuant to s.63 of the Trustee Act 1925 (NSW).  The legislative and case law policy behind judicial advice is to protect trustees and beneficiaries.

In Application by Muhammad Elias Attia [2020] NSWSC 94, a Court appointed administrator ad litem, being a solicitor, sought judicial advice on whether it was reasonable to continue appeal proceedings on foot in the Court of Appeal involving a deceased estate.  It was held by Ward CJ in Eq the administrator ad litem would not at present be justified in continuing the proceedings.  The costs of the judicial advice application were ordered to be reimbursed out of the assets of the estate.

The more recent case of Application of Lewis; Estate of the late Shirley Jean Coleman [2020] NSWSC 192 involved an application for judicial advice in the context of a deceased estate.  The application was overtaken by events and did not proceed.  However, the executrix of the estate sought orders dismissing the application and that her costs be paid out of the estate on the indemnity basis.  The application was dismissed because beneficiaries of the estate were not represented to argue the issue of costs.  The requested indemnity costs order was not made so that the costs could be discussed by the executrix with the beneficiaries.

Author: Gerard Basha