Conners v Conners; Estate of Conners

Judgment 1HIS HONOUR: This application concerns the estate of Mavis Ellen Alberta Conners who died on 10 April 2008. By her last will of 25 October 2001 she appointed her daughter, Joan Margaret Conners, as her executrix and trustee and gave the whole of her estate to Joan Margaret Conners. The deceased also had two sons, Robert Alan Conners and Kevin Ronald Conners. 2Two proceedings were commenced in relation to whether probate should be given of the will of 25 October 2001. All parties also made claims for orders for provision out of the estate pursuant to the Family Provision Act 1982. All of the proceedings were settled on or about 31 March 2010. 3The parties agreed that probate of the will of 25 October 2001 would be given to Joan Conners and the claims of all parties for orders under the Family Provision Act would be dismissed, Robert and Kevin Conners would bear their own costs of the proceedings they commenced and Joan Conners would be entitled to her costs out of the estate on an indemnity basis. 4In consideration of Robert and Kevin Conners agreeing to those orders, Joan Conners agreed that upon obtaining a grant of probate she would appoint a real estate agent and enter into a written agreement with the real estate agent to market and sell the deceased's property in [xxxxxxx xxxxxx], Waratah. There were detailed provisions to regulate the way in which that sale should be conducted. Joan Conners also agreed that upon orders being made in the various proceedings and a grant of probate in solemn form being granted to her, she should, by no later than 60 days after the date on which a notice of intended distribution of the estate of the deceased was published, pay to each of Kevin and to Robert an amount equal to 23.5 per cent of the net distributable estate. Probate in solemn form of the will of the deceased of 25 October 2001 was granted to Joan Conners on 31 May 2010. 5Joan Conners occupies the deceased property in [xxxxxxx xxxxxx], Waratah. Title to the property has been transmitted to her. She has taken no step to fulfil her part of the agreement for the property to be sold and the proceeds of the estate to be distributed as to 23.5 per cent share to each of her brothers. 6In May, June and August 2010 the solicitors for Robert and Kevin Conners pressed Joan Conners' solicitor, Mr Williams, for information as to what action she was taking to list the property for sale. On 17 September 2010 Mr Williams advised that he had forwarded correspondence of 23 August 2010 to his client on 25 August, requesting that she provide him with written instructions as a matter of urgency and had no response. 7On 20 September 2010 Mr Williams filed a notice of intention to file a notice of ceasing to act. On 28 September 2010 he filed a notice of ceasing to act and certified that the notice of intention to file that notice had been served on Joan Conners on 17 September 2010. That notice of intention to file a notice of ceasing to act advised Ms Conners that she should either file in Court and serve on Robert and Kevin Conners a notice stating the name and address of a solicitor who was to act for her, or, if she did not have a solicitor, who was to act for her, and a notice of stating her address for service of documents. No such notices have been filed. However, service of all relevant documents has been effected on Joan Conners, either personally or by the documents being posted to, or left at, her place of residence in [xxxxxxx xxxxxx], Waratah. 8On 8 February 2011 Robert and Kevin Conners filed a notice of motion in which they sought amongst other orders, orders that the Registrar appoint a real estate agent and enter into a written agreement for the sale of the property, or in the alternative, that an accountant be appointed in lieu of the defendant to act as trustee for the sale of that property. That application came before Hallen AsJ on 6 May 2011. In the absence of appearance for Ms Conners his Honour stood the matter over to the Registrar's list on 3 June 2011. Joan Conners appeared in person on 3 June 2011. Rather than proceed with the application in the notice of motion, Kevin Conners has filed a statement of claim on 1 September 2011 seeking an order for the revocation of the grant of probate of the deceased's will and an order that probate of the will be granted to him. That statement of claim has been personally served on the defendant, Joan Conners, on 14 September 2011. She was personally served with a letter from the plaintiff's solicitor advising that the application to remove her as executor of the estate had been adjourned for hearing before the Supreme Court in Sydney today. 9The plaintiff's solicitor stated that on 13 February 2012 his client would be asking that the matter be listed before a judge to be finally disposed of and would object to any further adjournments. The defendant was advised that if she did not appear, or was not represented, the matter might be disposed of in her absence. 10I was advised that when the matter was called on in the Registrar's list, the matter was called and there was no appearance for the defendant. The matter was referred to me this morning. The matter was again called and there was again no appearance for the defendant. Having regard to the long delays in this matter and the repeated adjournments, it is essential that the matter be dealt with. 11When probate was granted to the defendant, it was on the basis of her swearing in her affidavit of 5 November 2009 that if probate were granted to her she would administer the estate of the deceased according to law. That was, in effect, an undertaking to the court making the grant ( Bates v Messner [1967] 67 SR (NSW) 187 at 191-192). Having regard to the agreement Joan Conners made with her brothers, the due and proper administration of the estate in this case required that the principal asset of the estate, namely the house in Waratah be listed for sale promptly after the grant of probate and that the proceeds of sale and the balance of funds in the estate be distributed in accordance with the parties' agreement. The defendant has ignored those obligations and I am satisfied that the due and proper administration of the estate is being prevented by her intransigence, which establishes that she is not a fit and proper person to carry out her duties ( Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 at 108). 12Robert Conners is not a party to the present application for revocation of the grant. Leave will be reserved to him if he thinks fit to come in and apply for probate at some future date ( Probate and Administration Act 1898, s 41). 13Upon a grant being made to Kevin Conners he will hold the estate on the trusts of the will pursuant to which Joan Conners is the sole beneficiary. However, by her agreement with her brothers to distribute 47 per cent of the net distributable estate in equal shares to them, Joan Conners holds her beneficial interest in the estate on trust for her brothers in those shares. Kevin Conners would be justified in distributing the estate accordingly. 14The costs of this application for probate will be payable out of the estate. The application has been necessary because of Joan Conners' failure to adhere to her agreement and I will direct that the costs be payable out of her share of the estate. It would not be just that either Kevin or Robert bear those costs from the shares of the estate to which they are entitled under the agreement of 31 March 2010. 15For these reasons and subject to any submissions that counsel for the plaintiff may have as to the form of the orders, the orders I propose to make are as follows.