McKerracher v McKerracher

Judgment 1HIS HONOUR : These proceedings concern the estate of the late Daniel McKerracher. He died on 6 July 2010. By his will he appointed his two sons as the executors and trustees of his will. They are the plaintiff and defendant. He gave two pecuniary legacies and the residue of the estate to his sons in equal shares. Probate of the will was given to the plaintiff and the defendant on 4 January 2011. In support of the application for probate both executors swore that if they were granted probate of the will of the deceased they would administer the estate according to law. 2The plaintiff seeks orders, amongst others, for the grant of probate made on 4 January 2011 to be revoked and that " administration of the estate be granted to the plaintiff ." Orders are also sought to require the defendant to account to the plaintiff, as the new executor, for all money and property of the estate received by him, to vacate the deceased's property in Werri Beach, New South Wales, and to deliver the deceased's ashes to the plaintiff's solicitor. 3An executor may be removed where it clearly appears that the due and proper administration of an estate has been put in jeopardy or has been prevented by reason of acts or omissions on the part of an executor, or by virtue of matters personal to him, such as mental incapacity or ill health, establishing he is not a fit and proper person to carry out the duties of an executor ( Bates v Messner (1967) 67 SR (NSW) 187 at 191 to 192; Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 at 102). 4The defendant has been served with the statement of claim and supporting affidavits. He has been notified by the plaintiff's solicitor of the hearing today. There has been no appearance today by the defendant. 5The plaintiff deposes that with his agreement the defendant moved into their late father's home at Werri Beach after his death. The defendant said that he would do that in order to sort things out and pack up the house. The defendant has made representations from time to time of his intention to clean the property, including the swimming pool attached to it, and to arrange for the furniture and other contents to be cleared. However, it appears the defendant has not done anything substantial in order to put the property in a condition which the real estate agent advises is necessary in order for it to be sold. 6The plaintiff's evidence is that although the defendant has promised to clean the property and to move from it, he has not done so. According to the plaintiff, his brother told him that he had done everything he needed to do, but that is not the fact. The plaintiff's evidence is that the defendant is holding the deceased's ashes. 7The plaintiff's solicitor, Mr Lewis, has written letters to the defendant on 12 January, 16 February, 28 February, 29 March and 5 July 2011. In the letters of January, February and March Mr Lewis sought instructions to enable the Werri Beach property to be sold. He also sought instructions from the defendant to enable other assets to be dealt with. The defendant also told Mr Lewis in January 2011 that he had cleaned everything out of the house, except for a few items still to be removed and that the house was ready to be sold. That is not the fact. 8The defendant has made various promises to Mr Lewis to attend to matters the subject of the solicitor's correspondence. Mr Lewis has not received instructions as sought in that correspondence. It appears there has been silence from the defendant. 9As matters stand the Werri Beach property cannot be sold. There are also paintings that cannot be sold. The administration of the estate is presently stultified. This is a clear case in which the defendant should be removed as executor, it having been shown that he has not carried out the duties he swore to carry out when he sought the grant of probate. The due and proper administration of the estate is presently being prevented by his continuation in office. 10The question is what order should be made to give effect to that conclusion. In Profilio v Profilio [1999] NSWSC 657 Bryson J considered a like case in which a grant of probate was made to two executors and where one had to be removed pursuant to the Court's inherent jurisdiction having regard to the principles in Bates v Messner and Mavrideros v Mack . Bryson J said (at [33]-[34]): " [33] It is not known to me that there has ever been a case in which the Court's power to remove an executor has been applied to a grant of probate which was first made to two executors, so that one of them is to be removed while the other is to continue under the earlier grant of probate. Counsel have not been able to refer to any case in which that has been done. Discussion in texts and judgments tends to fall into dealing with the matter in hand as the revocation of the grant of probate, and revocation of the grant has been the outcome in the case law which I have seen. It seems to me however that revocation of the grant of probate is not the essential subject matter. The essential subject matter is the removal of an executor. Where the Court's inherent power is brought to bear on a grant which was originally made to more than one executor there is no departure from the real object of the inherent power, but rather a fulfilment of it if one executor is removed while the other is left to act under the earlier grant. [34] There is some practical convenience in doing this, as it would obviate any need for the continuing executrix to make a fresh application, which would not be contentious and would only establish matters again which she earlier established. " 11His Honour ordered that the second named executor, the defendant, be removed from the grant of probate with effect from the date of his Honour's orders without prejudice to the continuing executorship of the plaintiff (at [37]). 12In Morgan v MacRae [2001] NSWSC 1017 Young CJ in Eq (as his Honour then was) said (at [21]): " [21] The only way one can remove an executor is by revocation of the grant and the making of a fresh grant. I note there is a decision of Bryson J in Profilio v Profilio [1999] NSWSC 657 which appears to go to the contrary, but, with respect, it must have been decided per incuriam. In Mavrideros v Mack (16 June 1997, unreported) I decided this point. Although my decision was reversed in the Court of Appeal, see (1998) 45 NSWLR 80, the present point was in no way questioned by the Court of Appeal. " 13With respect, Young CJ in Eq did not decide this point in Mavrideros v Mack . The point was not in issue in that case. His Honour's reasons contain no discussion of the question whether the Court in its inherent jurisdiction can make an order for the removal of one of two executors. I think it clear that Bryson J's decision in Profilio v Profilio was not made per incuriam . I agree with Bryson J's observations that in such cases the revocation of the grant of probate is not the essential subject matter. The essential subject matter is the removal of the executor. 14In my view, the Court can and should make the order directly for the removal of one of the two executors, rather than by achieving the same outcome indirectly. 15I order that the defendant (being the first named executor in the grant of probate made 4 January 2011) be removed from that grant of probate with effect on and from 17 October 2011 without prejudice to the continuing executorship of the plaintiff. 16I order that within 21 days the defendant deliver to the Registry of this Court an affidavit describing his administration of the estate and identifying estate assets which are unadministered and that are under his control. 17I order that within seven days of being served with notice of these orders the defendant deliver to the plaintiff or his solicitor all accounts, receipts or other documents in his possession, custody or control relating to the assets of the estate. 18I order that within 28 days the defendant vacate the property at [xx yyyyyyy zzzz], Werri Beach, New South Wales. 19I order that within 14 days the defendant deliver the deceased's ashes to the office of the plaintiff's solicitor. 20I order that the defendant pay the plaintiff's costs of the proceedings. I direct that if the amount of those costs has either been agreed or assessed prior to the time that distribution of the defendant's share of the estate is to be made to him, the plaintiff would be justified in withholding from the defendant's share of the estate the amount of such costs as agreed or assessed. 21These orders may be entered forthwith. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2011