Bear v Bear; Jordan v Bear [2022] NSWSC 1687

Having considered evidence of the deceased's cognitive decline and inconsistent behaviour, there is sufficient doubt to pass over the 2019 Will and revoke the existing probate grant. The 2016 Will, though only a copy is available, is admitted to probate as the last valid Will, and is rectified to correct clerical errors so as to reflect the deceased's intentions that Aliza Golshani be beneficiary and executor. Time for rectification is extended as necessary given no distribution. Robert Bear and Monty Leventhal may renounce their executorship despite prior intermeddling due to parties' agreement and context. An attorney grant to David Stuart Taylor is appropriate based on the parties'...

Parties: Plaintiff in 2020/170777; Cross Defendant to First and Second Cross Claims: Lance Bear; Plaintiff in 2021/309778: Annie Jordan; First Defendant in Both Matters; Second Claimant to First Cross Claim; First Cross Defendant to Third Cross Claim: Robert Bear; Second Defendant in Both Matters; First Claimant to First Cross Claim; Second Cross Defendant to Third Cross Claim: Monty Leventhal; Third Defendant in Both Matters; Claimant in Third Cross Claim: Aliza Golshani; Fourth Defendant in 2020/170777; Claimant Under Second Cross Claim; Second Cross Defendant to Third Cross Claim: Raymond Bear
Jurisdiction: Australia
Judgment Date: 09 December 2022
Procedural Posture: Contested Probate; Equity; Cross Claims / Orders on Proposed Settlement Following Partial Hearing
Outcome: Orders made revoking 2019 probate; 2016 Will (as rectified) admitted to probate with copy annexed; orders on rectification, renunciation, grant to attorney, costs, and other terms per settlement.
Legal Topics: Validity of Wills, Rectification of Wills, Proof of Lost Wills, Probate Settlement, Executor Renunciation, Attorney Grants, Administration Bonds, Costs Orders

Equity Probate Estate Administration Validity of Wills Rectification of Wills Proof of Lost Wills Probate Settlement Executor Renunciation +3 more

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Parties

Lance Bear

Plaintiff in 2020/170777; Cross Defendant to First and Second Cross Claims

Annie Jordan

Plaintiff in 2021/309778

Robert Bear

First Defendant in Both Matters; Second Claimant to First Cross Claim; First Cross Defendant to Third Cross Claim

Monty Leventhal

Second Defendant in Both Matters; First Claimant to First Cross Claim; Second Cross Defendant to Third Cross Claim

Aliza Golshani

Third Defendant in Both Matters; Claimant in Third Cross Claim

Raymond Bear

Fourth Defendant in 2020/170777; Claimant Under Second Cross Claim; Second Cross Defendant to Third Cross Claim

Procedural Posture

Contested Probate; Equity; Cross Claims / Orders on Proposed Settlement Following Partial Hearing

Legal Issues

1 Whether the 2019 Will should be passed over and probate revoked
2 Whether the 2016 Will (a copy) should be admitted to probate as the deceased's last Will
3 Whether the 2016 Will should be rectified to reflect the testatrix's intentions

Ratio Decidendi

Court Disposition

Orders made revoking 2019 probate; 2016 Will (as rectified) admitted to probate with copy annexed; orders on rectification, renunciation, grant to attorney, costs, and other terms per settlement.

Orders

Grant of Probate to First and Second Defendants in respect of the 16 May 2019 will revoked.
First and Second Defendants to deposit Grant of Probate in Registry.