A change-of-mind de facto has failed to overturn a settlement agreement she signed to resolve her claim for a further provision to be made from her spouse’s estate that had been left entirely to his children.
Teresita Ybanez and John Crawford lived together at Toorbul on Moreton Bay from 1990.
In 2012 John moved into residential aged care, but Teresita stayed in the family home and was still there when John died in 2017, aged 92.
Teresita received no benefit – apart from some small legacies – under John’s will which left his estate to his adult children Gillian and Scott.
In November 2017, Teresita applied to the District Court for further provision out of the estate, including the right to continue to reside in the Toorbul home.
The matter eventually proceeded to a mediation conducted by succession guru Tim Whitney in February 2019 where Teresita was represented by her barrister and was supported by Wayne Cross who was said to be a retired magistrate.
The executor, Matthew Love, attended with his solicitors as did both of John’s children.
A handwritten document that she signed in the presence of her barrister and Mr Cross recorded the agreement that she is paid $50k out of the estate without any right to remain in the Toorbul residence.
At the same time, she signed a payment direction presented to her by her barrister requiring the executor to pay $8k of the agreed settlement sum to himself for fees, $2k to Mr Cross and the remaining $40k to her.
In exchange for the 3 cheques, the barrister signed and handed over a Notice of Discontinuance ending Teresita’s claim against the estate.
This would ordinarily have been the end of the matter but it did not take long for Teresita to claim that her signature on the agreement was a forgery and that she had not agreed to accept a mere $50k.
She twice returned the $40k cheque to the estate’s solicitors and refused to present it to her bank after it was provided to her for the third time.
Exasperated, the executor applied to the District Court in June 2020 for orders to enforce the settlement agreement. Teresita – appearing without legal representation – swore that she did not recognise the handwritten agreement, had never seen it before, and that it did not contain her signature.
The substantive hearing got underway in July 2020 before Judge Ray Rinaudo.
Teresita who provided no evidence to support her claim of forgery attended on the first 2 days, but – despite being duly notified of the date and time it was to occur – not on the third.
Relying on the evidence from counsel as to her execution of the mediation agreement and that of the mediator about the terms that had been reached together with his observations of Teresita and the discrepancies in her various allegations, Judge Rinaudo had no hesitation in upholding the agreement and made orders accordingly.
His Honour was gravely concerned by the conduct of Mr Cross – who he noted was “not known to the court” – and his demand for a ‘success fee’ payment of up to 10% of the proceeds of the claim. Her ordered the estate’s solicitors to provide a copy of his judgment to the Legal Services Commission “for consideration of what, if any, steps ought to be taken arising out of Mr Cross’ conduct”.
Teresita appealed and in addition to seeking to set aside those orders applied in her Notice of Appeal for a greater provision out of John’s estate.
Noting that the only issue it was able to consider was whether the primary judge’s orders should be set aside for error, the Court of Appeal declined to consider the issue of adequate provision.
Justice Soraya Ryan, with whom Justices Philip McMurdo and John Bond agreed, held that no error of fact or law had been made by Judge Rinaudo, and that she “had not been denied been procedural fairness” when his orders were made in her absence from court.
Teresita’s appeal was refused, and she was ordered to pay the estate’s costs of her appeal. Judge Rinaudo had also ordered that Teresita pay the estate’s costs of the proceedings before him. Little if any of the $40,000 to be paid to Teresita pursuant to the mediation agreement will remain after these costs are paid.
She only had legal representation for the mediation and at all other times, she represented herself. This outcome clearly shows the dangers of such a strategy.
Ybanez v Love & Ors [2021] QCA 224 McMurdo and Bond JJA and Ryan J, 15 October 2021