Plaintiffs v Applicants/Defendants

PRACTICE AND PROCEDURE - Separate question as to standing of applicants to revoke the grant of probate - Separate question as to standing of applicants to bring claim on behalf of estate - Supreme Court (General Civil Procedure) Rules 2015, r 47.04(a) - Civil Procedure Act 2010, Parts 2.3, 2.4, 4.4

ZOE MAY SLES, a minor, by her litigation guardian KERRIE LOUISE SLES

1 Douglas William Gardiner ('the deceased') died on 26 June 2015. Probate of his will dated 6 May 2015 was granted to the plaintiffs on 25 January 2016.

2 The applicants are the niece and nephews of the deceased. They are the adult children of the deceased's brother, Robert Gardiner, who pre-deceased the deceased. They seek, inter alia, to revoke the grant of probate to the plaintiffs. They receive no benefit under the deceased's probated will or under his two prior wills made in 2012 ('the penultimate will') and 2008 ('the third will') respectively.

3 The first and second applicants depose to having reasonable concerns about the testamentary capacity of the deceased to make any of these wills and that all of them are invalid for want of testamentary capacity. In the event that all wills made by the deceased are invalid, the deceased's estate would fall to be distributed on intestacy. The deceased's intestacy beneficiaries are his brother, James Gardiner (senior) as to one half of the estate and each of the applicants as to one sixth of the estate.[1]

4 The applicants' initial application for revocation of the grant of probate was on the ground that the deceased lacked capacity to make the probated will. There being three wills made by the deceased, the applicants amended their summons to challenge all of them, seeking orders as follows:

(a) revocation of the grant of probate and consequential orders for delivery up and cancellation; and

(b) declarations that the deceased's probated will dated 6 May 2015 and his prior wills dated 29 May 2012 and 13 July 2008 respectively, are invalid for want of the deceased's testamentary capacity and a declaration that the deceased died intestate.

5 In the event that the grant of probate of the will dated 6 May 2015 is not revoked the applicants seek, in the alternative, the removal of the plaintiffs as the executors, pursuant to s 34(1)(c) of the Administration and Probate Act 1958, on the basis that the second plaintiff stood in a fiduciary position to the deceased thereby precluding her from benefitting under the deceased's will, as well as acting as an executor of the estate.

6 On 19 February 2016, the parties agreed that the question of the applicants' standing to seek the orders sought in their amended summons be tried as a separate question, pursuant to r 47.04(a) of the Supreme Court (General Civil Procedure) Rules 2015.

7 On 26 February 2016, orders were made joining the fourth defendant who is a minor, by her litigation guardian, to the proceeding as she is a beneficiary under the deceased's will and an interested party.

8 The applicants filed three lengthy affidavits in support of their application: an affidavit by James Alexander Gardiner sworn 16 February 2016 ('the Gardiner affidavit'), an affidavit by Sarah Jane Borrack sworn 16 February 2016 ('the Borrack affidavit') and an affidavit by Howard Roger Rapke sworn 16 February 2016 ('the Rapke affidavit').

9 At the hearing of the separate question, the applicants relied solely on paragraphs 1, 3, 4, 5 and 12 of the Gardiner affidavit, paragraph 4 of the Borrack affidavit and paragraphs 4 and 24 of the Rapke affidavit. These paragraphs set out the applicants' relationship as the niece and nephews of the deceased and that there are no other wills of the deceased apart from the deceased's three wills. This was the only evidence relied on by them for the separate question of their standing.

10 For the purposes of the separate question, the applicants accept that their standing would be the same for the claims seeking revocation of the grant of probate, the declarations of the invalidity of the deceased's three wills and the removal of the plaintiffs as executors of the estate of the deceased.

11 The written submissions of the plaintiffs and the fourth defendant dealt with the applicants' standing and also included submissions on the evidence as set out in the three affidavits filed by the applicants. As the applicants relied only on their relationship as the next of kin of the deceased on an intestacy and the deceased's three wills, and they accepted that their standing for both the primary claims and their alternative claim requires the same standing, it was unnecessary to consider the submissions that went beyond the matters that are relied on by the applicants for the determination of the separate question.

Applicants' case for revocation and declarations

12 The applicants submit they have standing to seek revocation of the grant of probate and the declarations of the invalidity of the deceased's three wills because, upon the declarations being made and, in the event that James Gardiner (senior) does not make an application for a grant of letters of administration of the estate upon intestacy,[2] they will make an application for a grant of administration on the basis of their standing as intestacy beneficiaries of the deceased's estate.

13 The applicants' written submissions refer to the well established principle that probate litigation is interest litigation and that a sufficiency of interest is usually stated to depend upon whether the person seeking to challenge the document propounded will take a different, meaning greater or even lesser, benefit in the estate if that document is not admitted to probate, relying on the decisions of Re Culina; Poulos v Pellicer,[3] Van Wyk v Albon[4] and Griffiths v Lewis.[5] The applicants submit that they have sufficient standing to bring the application as their interest in the estate arises as beneficiaries of the deceased's estate in the event of an intestacy.

14 In their oral submissions, the applicants submit there is no authority that provides that an applicant must establish a prima facie case in order to establish standing. Specifically, the applicants do not rely on any evidence as to the deceased's lack of testamentary capacity at the time that each of his three wills were executed.

15 They submit that in Re Culina; Poulos v Pellicer and Griffiths v Lewis it was found that the challenger to the will did not have standing due to the existence of an unimpeachable will under which the challenger took no interest being interposed between the will sought to be challenged and the intestacy under which the challenger would take an interest. The applicants distinguished their situation from these decisions on the basis that all three wills of the deceased are affected by his testamentary incapacity which makes all of them impeachable and gives them sufficient standing as intestacy beneficiaries of the estate.

16 They submit that Van Wyk v Albon supports the proposition that, in principle, an applicant has standing to challenge multiple wills in one application, relying on the following statement of Habersberger J:

As I have previously stated, the death certificate notes that the deceased had been suffering from dementia for 10 years. That, arguably, might be sufficient to mount a prima facie case that the three wills, including the last will, that favoured the defendant could be challenged on the ground of lack of testamentary capacity. However, the 1997 and earlier wills are outside that stated period. Given that the first of those wills, the 1989 will, was some 21 years prior to the death of the deceased, there would seem to be no ground for challenging that will on the basis of lack of testamentary capacity. I note also that the will was prepared by solicitors and would appear to have been executed in the presence of a solicitor, although the occupations of the witnesses are not stated.

In those circumstances, the chance that the deceased would be found to have died intestate, which would give the plaintiff standing to attempt to set aside all of these wills, is virtually non-existent. In my opinion, this means that the plaintiff's claim that the deceased died intestate has "no real prospect of success" within the meaning of s 63(1) of the Civil Procedure Act 2010.[6]

17 In their oral submissions, the applicants' relied on the leading decision Onus v Alcoa Australia Limited on standing.[7] This case concerned whether a private right to the preservation of publically owned Aboriginal relics conferred by a Commonwealth Act could be enforced by a group of people of Aboriginal descent. Specifically, the applicants relied on the ratio of the case as espoused by Gibbs CJ:

A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public...[8]

18 The applicants stressed that the comments made in Onus v Alcoa by all the judges were about standing as a concept. It was submitted that there is no special rule of standing as it depends upon the claim that is being made and there has to be a sufficient claim to bring an action.

19 The applicants drew analogies between Onus v Alcoa and their application, relying on comments in Onus v Alcoa that the appellants might have established standing had further evidence been produced.[9] The applicants also emphasised the following statement by the Chief Justice as follows:

It is unfortunate that the question of the appellants' standing was determined as a preliminary issue in the present case, particularly on such scanty material... the court has a discretion whether or not it should determine the question whether the plaintiff has a sufficient interest to bring the proceedings before it proceeds to the merits of the case.[10]

20 The applicants also referred to the comments of Murphy J who noted that the appeal related only to the issue of standing and that standing was not relevant to the issues that the court would consider but rather, the means by which a party can bring their claim before the court, that is, whether the party has the right to invoke the jurisdiction of a court.[11]

21 Senior counsel for the applicants concluded by stating:

We clearly have standing because we have amended the summons to challenge all the existing wills, all the available wills. If the claim by the [applicants] is successful, they will inherit on an intestacy. That meets the test in Re Egan as to the sufficiency of the interest required to establish standing.

22 The primary function of the Court in exercising its probate jurisdiction is to make grants of probate or grants of letters of administration. A grant of probate or a grant of letters of administration is more than just a Court order: it is proof of the validity of the will that the applicant sought to propound.[12] A grant is an instrument of title that binds parties even if they are not party to the proceedings[13] and is therefore analogous in some respects to the concept of indefeasibility in property law. The fact that a grant will bind non-parties, as well as parties to any proceeding, reflects the focus of the jurisdiction: a legal personal representative upholding the wishes of a deceased in respect of the posthumous distribution of an estate and fulfilling his or her duties in respect of the beneficiaries of an estate under a probated will or the intestacy provisions.[14]

23 The usually irrevocable nature of a grant, whether in common or solemn form,[15] explains the existence of the caveat process: caveats act as a mechanism for notice to a person that an application for a grant of representation has been made. Upon receiving notice of such application, the caveator must then file particulars to establish not only that he or she has standing to lodge the caveat, but also a prima facie case before the application can proceed to contest. Standing is usually established by virtue of the caveator having a beneficial interest in the deceased's final will or under the penultimate will or the intestacy provisions where there is no penultimate will. This is because 'the Court must always keep in view...the due and proper administration of the estate and the interests of the beneficiaries entitled thereto'[16] and the task of the Court in carrying out the testator's testamentary intentions and to see that beneficiaries get what is due to them.[17]

24 The revocation of a grant of representation is equivalent to setting aside a Court order.[18] The Court in its probate jurisdiction has the power to revoke a grant, with such power exercised at the discretion of the Court having regard to all relevant circumstances in the case.[19] As in any proceeding, an applicant must have standing to make such an application. In the context of probate litigation, being interest litigation, an applicant for revocation of a grant must be able to show that his, her or its rights will, or may, be affected by the outcome of the proceedings.[20] The authorities establish that an interest sufficient to entitle a person to oppose a grant of probate or letters of administration is sufficient to entitle a person to apply for revocation of a grant of probate or letters of administration,[21] and, an applicant must show that he, she or it has:

(a) a reasonable explanation for the delay in bringing the application to revoke the grant; and

(b) a prima facie case to challenge the grant of probate or letters of administration.[22]

25 Both factors are inextricably linked to the issue of standing as an applicant has standing if he or she can demonstrate a prima facie case for an interest in the estate. Probate litigation is 'interest litigation' with standing measured by a person's interest in an estate.[23] In this proceeding, the applicants rely on being the next of kin of the deceased on intestacy to seek revocation of the probated will and declarations of invalidity of the deceased's three wills, where they are not beneficiaries under any of the wills and where all of the wills have the benefit of the presumption of validity.[24] Their claim as being the next of kin of the deceased on intestacy arises from their claim that the deceased lacked testamentary capacity at the time of execution of each of the deceased's three wills.

26 Whilst there is dicta to the effect that the 'bare possibility of an interest' is sufficient to establish standing,[25] what constitutes an 'interest' sufficient to bring a proceeding in the probate jurisdiction necessarily precludes an 'officious inter-meddler'[26] and 'outside busybodies'[27] in a contested hearing to determine whether the document propounded was the last valid will of a free and capable testator.[28] In Re Culina; Poulos v Pellicer Windeyer J referred to the question of whether the next of kin entitled on intestacy had sufficient interest to challenge a will, even if there was an earlier will not subject to dispute that did not benefit the next of kin. His Honour concluded that whilst in earlier times, referring to a decision in 1900, that might have been the case, it is no longer the position unless there was some evidence casting doubt on the earlier will or wills.[29]

27 As well as considering the applicable principles for an application seeking revocation of a grant of probate and declarations as to the invalidity of multiple wills for the purposes of the separate question of the applicants' standing, the Court must also consider the rules of court, as well as the Civil Procedure Act 2010, both of which emphasise case management principles in the context of the administration of justice and the just and efficient resolution of cases.[30] In this context, the precedential value of cases decided on the basis of different rules of the court may not necessarily be of assistance.[31]

28 In Victoria, the Court of Appeal has noted the influence of the Civil Procedure Act 2010 on litigation generally:

The CP Act has changed the litigation landscape. One of the main purposes of that legislation is to reform practice and procedure in civil proceedings... More than ever, the focus is now pointedly on efficiency and cost-effectiveness, albeit that they are not the only, nor the predominant, considerations ...[32]

29 The same considerations were referred to by Lindsay J in Re Kouvakas; Lucas v Konakas, where he noted:

Recent developments in court administration and techniques for the management of cases cannot be ignored upon the consideration of an application for revocation of an order of the Court (albeit an order in the character of a common form grant of administration) regularly made and entered in the records of the Court...the probate jurisdiction has its own dynamic, but it is not immune to broader concerns about the administration of justice.[33]

30 Part 2.2 of the Civil Procedure Act 2010 requires that certain persons, including parties to the proceeding and their legal practitioners, comply with the overarching obligations set out in Part 2.3 and further the overarching purpose of the Act, being 'the just, efficient, timely and cost-effective resolution of the real issues in dispute.'[34] First and foremost, all persons to whom the overarching obligations apply have a paramount duty to the Court to assist with the administration of justice.[35] Section 18 of Part 2.3 therein prescribes that, inter alia, any claim in a civil proceeding must have a proper basis on both the legal and factual material before the person to whom the obligations apply. The Court is empowered to police compliance with these obligations and s 29 of Part 2.4 provides that the Court may make certain orders where any of the overarching obligations have been contravened. Analogies have been drawn with the Court's power to deal with abuse of process where a person has engaged in a particularly egregious breach of any of the overarching obligations.[36]

31 The Court is further empowered under Part 4.4 to give summary judgment where it is satisfied that any part of a claim has no real prospect of success on the application of a party[37] or on its own motion.[38] Justice Habersberger utilised this provision in Van Wyk v Albon.[39] Conversely, even if the Court is satisfied that, despite having no real prospect of success, the proceeding should proceed to trial in the interests of justice or on the basis that the dispute is of such a nature that only a full hearing on the merits is appropriate, the Court may so order.[40]

Do the applicants have standing to revoke the probated will and seek declarations of the invalidity of the deceased's three wills?

32 The first limb of the test for standing in the probate jurisdiction is satisfied as there was no delay in the applicants bringing the application. Whilst an administrative error on their part meant that the caveat lodged by them against the making of a grant had lapsed before the grant of probate was made, the applicants were prompt in their application for a revocation of the grant of probate.

33 The second limb of the test for standing in the probate jurisdiction requires that the applicants show a prima facie case for the grant of probate to be set aside.[41] In their oral submissions the applicants referred to the decision of Re Egan.[42] They submitted that if their claims are successful, they would inherit on intestacy, thereby meeting the test in Re Egan as to the sufficiency of the interest required to establish standing. This submission cannot be accepted as it is clear from the decision of Re Egan that in order to obtain an order nisi for revocation of a grant of probate, as was the practice at that time, a caveator was bound to make out a prima facie case.[43] The applicants' submissions are premised on their claims as to the invalidity of all three wills being successful. This is their prima facie case, however, they do not have a sufficient interest under the three wills to establish their standing and do not rely on any evidence to cast doubt on each of the deceased's three wills.

34 The applicants relied on Van Wyk as authority for the proposition that an applicant seeking revocation of a grant could challenge multiple wills in one application. This was not the case in Van Wyk and the decision does not stand for such a proposition. In Van Wyk the applicant challenged the last will of the deceased, not multiple wills. The applicant sought a declaration that the deceased's final will was invalid on the basis of lack of testamentary capacity, alternatively that it was procured by the undue influence of the defendant. He also sought declarations that the deceased died intestate and that a 2004 transfer of land to the defendant was invalid. It was common ground that any will executed by the deceased in the ten years preceding her death was not valid because she had dementia and lacked testamentary capacity in that period. The applicant was not named as a beneficiary in the deceased's five prior wills, including some signed before the deceased was diagnosed with dementia. As the applicant did not have an interest in the last will of the deceased not tainted by lack of testamentary capacity, or indeed any will prior to that, he was unable to establish a prima facie case and his claim was dismissed summarily under s 63(1) of the Civil Procedure Act 2010.

35 A challenge to multiple wills could not be heard in one application as there will be different grounds relied upon in respect of separate wills and different parties in respect of each will. The usual procedure adopted by the Court where there are several wills in existence and it is uncertain which is the last valid will of a deceased person, is that the validity of all the contentious wills are usually heard and determined in one hearing, not in one proceeding or in one application. Each application for a grant of representation in respect of each will and/or under the intestacy provisions is made in a separate proceeding. A caveator's competing application for probate of a different will or for administration must be in a different proceeding. Subject to any other direction from the trial judge, the two proceedings are heard and determined at the one time. Where more than one will is being propounded, the validity of the last will is determined first. It is only if the Court finds the last will to be invalid that it become necessary to test the validity of the penultimate will.[44]

36 Where there are challenges to the validity of three wills, as is the case in this application, that procedure would apply with the applicants required to establish that they have a prima facie case to challenge the validity of each will for each application. If an applicant does not have an interest under a penultimate will, as is the case with the applicants, then the application to challenge the last will must fail. Equally, if an applicant does not have a sufficient interest under a third will, as is the case with the applicants, then the application to challenge the penultimate will must also fail for the same reason.

37 The decisions of Re Culina; Poulos v Pellicer and Griffiths v Lewis stand for the proposition that an intestacy beneficiary does not have standing where there is an unimpeachable will under which they take no interest interposed between the will sought to be challenged and the intestacy under which the challenger would take an interest. Adopting the same analysis as in Griffiths v Lewis, the applicants do not have any interest in the deceased's three wills and, therefore, they do not have standing to challenge the probated will or the penultimate will. These wills have the benefit of the presumption of validity and are interposed between the probated will and an intestacy. Re Culina; Poulos v Pellicer and Griffiths v Lewis do not stand for the proposition that an applicant can challenge all wills made by a deceased in a broad brush challenge as to their validity. This is consistent with the decision in Nicholson v Kollias that a mere allegation of a lack of testamentary capacity that is a broad brush against all wills executed by a deceased, all of which have the benefit of the presumption of validity, is not sufficient to give an applicant standing to challenge a will.[45] In the affidavits of the first and second applicants, their statements concerning their reasonable concerns about the deceased's testamentary capacity to make each of his three wills fit well within the description of a broad brush challenge.

38 The applicants' position that they rely only on their relationship as the next of kin of the deceased and the deceased's three wills for the purpose of the separate question is not their actual position. This is because their claim to an entitlement on intestacy is based on and assumes that the deceased did lack testamentary capacity and that each of the deceased's three wills invalid. It is the deceased's lack of testamentary capacity that is the fundamental underlying basis of their claim to being the deceased's intestacy beneficiaries and is their prima facie case. On the separate question, the applicants do not rely on any evidence of the deceased's testamentary capacity to support their prima facie case and are unable to establish that they have a sufficient interest in any of the deceased's three wills to challenge them.

39 The applicants' reliance on the comments by the Court in Onus v Alcoa to the effect that the applicants may have established standing had further evidence been produced and that it was unfortunate that the appellants' standing was determined as a preliminary issue fails to take into account that the separate question as to standing was agreed to by the applicants, making it inconsistent for them to rely on those statements in Onus v Alcoa on this application.

40 Their reliance on the comments of Murphy J that the issue of standing is not relevant to the issue of whether a party has the right to invoke the jurisdiction of a court was made in the context of a public interest case. In the probate jurisdiction, a jurisdiction that deals with private rights and special interests such as the disposition of private assets of a deceased person, the authorities are clear that to invoke that jurisdiction, an applicant must establish a prima facie case for an interest in an estate.

41 The application of the ratio of Onus v Alcoa as espoused by Gibbs CJ, namely, that 'a plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public' can be seen in the decision of Environment East Gippsland v VicForests.[46] In that case, the plaintiff sought an interlocutory injunction against the defendant restraining it from logging in certain forest areas, asserting that the logging was unlawful given the defendant's environmental obligations to protect native fauna, in particular, to protect the endangered and threatened long footed potoroo and sooty owl that had both been detected in the forest areas. The Court considered the plaintiff's standing to bring the claim against the defendant, applying the principles set out by Sackville J in North Coast Environment Council Inc v Minister for Resources.[47] J Forrest J stated that the standing of a particular organisation will depend on the facts of the case and, most importantly, the nature of its relationship with the subject matter of the dispute. His Honour was satisfied of the plaintiff's standing, mindful of the fact that he needed to be satisfied only on a prima facie case for the purposes of the interlocutory injunction. He found that the plaintiff's level of membership, constant activities in the relevant area, including conducting fauna surveys, regular communications with government concerning the areas and that it appeared to be the only body directly interested in the preservation of the area's natural habitat demonstrated that it had an arguable case or prima facie to bring the proceeding.[48]

42 It is relevant to note that the applicants rely on only part of what Gibbs CJ stated as the ratio in Onus v Alcoa. In the same sentence relied on by the applicants, his Honour continued saying 'if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action.'[49] The relevance of the full quotation can be seen in the context that the case concerned the standing of individuals in a public interest case. In this application, the applicants seek revocation of the grant of probate and declarations as to the invalidity of the deceased's three wills, all matters that are concerned with private rights in the probate jurisdiction of a deceased estate. Accordingly, applying the ratio in Onus v Alcoa to this application, an applicant must establish that his or her private rights might be or will be interfered in order to establish standing. In the probate jurisdiction, this is achieved by establishing that he or she has or may have a beneficial interest in the estate.[50] The applicants' reliance on being the intestacy beneficiaries of the deceased does not establish any private right to revoke the grant of probate being the subject matter of the action, nor does it establish any private right to challenge the deceased's two prior wills.

43 What constitutes a 'special interest' under the ratio in Onus v Alcoa will differ depending on the nature of the proceeding. What is a special interest for standing in public interest cases will differ from what is a special interest in private interest cases. This can be seen readily from Onus v Alcoa itself and Environment East Gippsland v VicForests where there are no 'natural parties' or private interests compared to the applicants' case brought in the probate jurisdiction where they are individuals with no private rights interfered with and have no special interest in the subject matter of the action.

44 In this case, the applicants are not beneficiaries under the probated will of the deceased, nor are they beneficiaries under the deceased's penultimate will or his third will. Accordingly, they are unable to establish a prima facie case for an interest in the deceased's estate and do not have standing to seek to revoke the grant of probate or to seek the declarations as to the invalidity of the deceased's three wills.

Applicants' alternative claim for removal of the plaintiffs as executors of the estate

45 In their written submissions, the basis of the applicants' amended summons seeking removal of both plaintiffs as the executors under s 34(1)(c) of the Administration and Probate Act 1958 is that, as a result of the second plaintiff being in a fiduciary position vis-a-vis the deceased, the estate would have a claim to recover any benefit conferred upon her under the deceased's will and, in the event that any benefit were recovered in that claim, it would pass to them and James Gardiner (senior) by way of a partial intestacy.

46 In their oral submissions, the applicants submitted that the second plaintiff committed a breach of fiduciary duty that belonged to the estate and that she is not a suitable person, in effect, to sue herself and that both executors should be removed because of their breach of fiduciary duty. The applicants did not make it clear what fiduciary duty the first plaintiff had breached but said the fiduciary duty breached by the second plaintiff was not to put her own interest ahead of the interests of the deceased. Their submission was that because there is no operative gift over under clause 3(d) of the last will, the second plaintiff not having predeceased the deceased, if any benefit were recovered, it would pass by way of partial intestacy, under which the applicants would share.

47 The applicants' senior counsel developed these submissions further by reference to the decision of Bridgewater v Leahy[51] where the High Court left open the question of whether the equitable principles of undue influence regarding inter vivos gifts might be applied in the probate jurisdiction. If those equitable principles were applied in the probate jurisdiction, it was submitted that there would be a constructive trust over property received in breach of a fiduciary's duty to a testator. In further clarification, senior counsel stated that the claim for the removal of the executors is:

... predicated on one of the wills being found to be valid but having been infected by undue influence in the general sense that equity uses that term, not in the narrow sense that the probate jurisdiction uses that term.

48 The applicants submit that the fact their written submissions relying on s 34(1)(c) of the Administration and Probate Act 1958 do not set out a claim as articulated in their oral submissions does not matter for the purpose of their standing as they accept that their alternative claim requires the same standing as for the primary relief sought by the applicants.

Consideration of the alternative claim for removal of executors of the estate

49 An application for removal of a legal personal representative of a deceased is exercised in either the probate jurisdiction or the equitable jurisdiction of the Court, depending on the state of the administration of the estate. Section 34 of the Administration and Probate Act 1958 deals with the discharge or removal and appointment of executors or administrators and an application is heard by the Court in its probate jurisdiction. Where an applicant seeks to remove a trustee of an estate after the executorial duties have been completed, the application is dealt with by the Court in its equitable jurisdiction[52] and any such application would be made pursuant to s 41 of the Trustee Act 1958.

50 Section 34(1)(c) of the Administration and Probate Act 1958 provides for the removal of executors of an estate on the grounds of their unfitness to act in such office. It gives the Court power to order the removal of an executor who is 'unfit to act in such office'. As to trustees, courts of equity have asserted and applied, over many years, an inherent jurisdiction to remove a trustee. Where an executor is unfit to perform the duties of trustee (if he or she is also appointed to that position), the Court can exercise its inherent jurisdiction to address this issue.[53]

51 The relevant principles as to whether a court will remove a trustee or executor and substitute another are generally consistent and demonstrate that a trustee will not necessarily be removed because of a position of conflict between duty and interest, although in some cases it may be sufficient. Proof of actual misconduct is not required for the removal of a trustee. Each case depends on the facts with such a judgment being largely discretionary. In exercising the jurisdiction to remove a trustee or executor, the general rule and guiding principle is the welfare of the beneficiaries.

52 In Monty Financial Services Ltd v Delmo, Ashley J (as his Honour then was) considered what 'unfitness' means within the context of s 34(1)(c) of the Administration and Probate Act 1958, concluding that unfitness could be demonstrated by misconduct or neglect of duty in the administration of the estate constituted by:

... matters such as unwarranted delay in administration of the estate, failure to communicate with beneficiaries, failure to account, and unreasonable delay in paying beneficiaries their entitlement. ... I find it impossible to accept that serious dereliction of duty as an executor does not make that person unfit to hold the office. It cannot matter whether the dereliction is born of intent, of carelessness, or of incompetence. In each case the actual or potential deleterious effect upon the estate and the beneficiaries is the same.[54]

53 Ashley J referred to the leading authority of Miller v Cameron with approval and emphasised that 'the only guide is the welfare of the beneficiaries'[55] and concluded that whilst proof of actual misconduct is not necessarily required for the removal of a trustee, unfitness to act may comprehend circumstances where executors have a conflict of duty and interest.[56] His Honour's analysis of the authorities has since been repeatedly approved, including by the Court of Appeal in Dimos v Skaftouros.[57]

54 An application for removal of an executor is ordinarily made by originating motion with a summons on originating motion, supported by affidavits so that the executors know what case they have to meet. The procedure adopted by the applicants in making the application for removal of the executors by summons in the revocation application does not comply with the usual procedure.

55 Notwithstanding this procedure adopted by the applicants, the only evidence relied on by the applicants for the separate question of their standing on their alternative claim is their relationship as the next of kin of the deceased and the deceased's three wills. They accept for the purposes of their alternative claim that their standing requires the same standing as for primary relief sought by them.

56 The applicants' alternative claim appears to be, and must be, premised on the probated will. The applicants do not rely on any evidence that suggests that the second plaintiff, as an executor of the estate, has breached any fiduciary duty and they do not specify what fiduciary duty that has allegedly been breached by her. They also do not rely on any evidence that suggests any breach of fiduciary duty against the first plaintiff and do not assert any basis for his removal on the grounds of his unfitness to act as an executor of the estate.

57 Even if the second plaintiff were in breach of a fiduciary duty, any cause of action would inhere in the estate and would be brought by the legal personal representative of the estate. [58] The plaintiffs, or the first plaintiff alone, if the second plaintiff contested the claim, would be the proper plaintiff to vindicate the estate's rights, even if the applicants' submission that there is no operative gift over under clause 3(d) of the probated will is correct.

58 The applicants' oral submissions addressed the removal of both plaintiffs based on equitable undue influence, principles that have never been applied in the probate jurisdiction. Whilst it may be said that the High Court in Bridgewater v Leahy left open the application of the equitable principles of undue influence in the probate jurisdiction, it is notable that the Victorian Law Reform Commission's report dated 15 October 2013 did not recommend that the equitable principles should be applied in the probate jurisdiction but recommended that the issue should be kept under review for further consideration in the future.[59]

59 Finally, any claim for a breach of fiduciary duty and equitable undue influence would ordinarily be brought in a separate proceeding with a properly pleaded claim, including particulars, not only for fairness to the plaintiffs, but also for the Court's management and orderly conduct of any proceeding and to comply with the applicants' overarching obligations, as well as those of their legal advisers under the Civil Procedure Act 2010.

60 On their alternative claim, the applicants do not have standing to seek the removal application under s 34(1)(c) of the Administration and Probate Act 1958.

61 The answer to the separate question of the applicants' standing to seek the orders sought in their amended summons is that they do not have standing to bring their application for revocation of the grant of probate of the will of the deceased, for the declarations of the invalidity of the deceased's three wills, or to bring their alternative claim for the removal of the plaintiffs as the executors of the estate.

[1] Administration and Probate Act 1958, s 52(f).

1. [2] James Gardiner (senior) has the majority interest in the intestate estate of the deceased. No evidence was before the Court as to whether he has been informed of the application to revoke the grant of probate by the applicants although counsel for the applicants stated that he would be informed.

[3] [2004] NSWSC 504 (11 June 2004).

[4] [2011] VSC 120 (24 March 2011).

[5] [2013] VSC 609 (11 November 2013).

[6] Van Wyk v Albon [2011] VSC 120 (24 March 2011) [9]-[10] (Habersberger J).

[7] [1981] HCA 50; (1981) 149 CLR 27 ('Onus v Alcoa').

[9] Ibid 36 (Gibbs CJ), 41 (Stephen J), 43 (Mason J).

[10] Ibid 38 (Gibbs CJ). Aickin J was also critical of the trial judge as the issue of standing was determined at the same time as the application to strike out the statement of claim and dismiss the action: Ibid 46. See also, ibid 63 (Wilson J).

[11] Ibid 43. Murphy J relied on a 1968 decision of the United States Supreme Court in which it was held that taxpayers have standing to issue proceedings against the government to prevent unconstitutional uses of taxpayer money: Flast v Cohen [1968] USSC 133; (1968) 392 US 83, 99.

[12] Whicker v Hume [1858] EngR 991, 7 HLC 124; Ex parte Brown (1869) 8 SCR 332.

[13] Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153.

[14] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [228]-[233].

[15] For a learned discussion of the distinction between the implications for an application for revocation of a grant in common form and solemn form, see: Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014).

[16] In the Goods of William Loveday [1900] P 154, 155-156. Applied in In the Goods of Galbraith [1951] P 422. See also, Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 337; Estate Wight: Wight v Robinson [2013] NSWSC 1229, [17]-[20] (30 August 2013) ; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 [211] (16 July 2014); Estate Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [52].

[17] Boyce v Bunce [2015] NSWSC 1924 (17 December 2015) [45].

[18] In the Will of Lamont [1881] VicLawRp 179; (1881) 7 VLR (IP&M) 86, 93, 98. See also, Estate Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53] (Lindsay J).

[19] In the Will of Lamont [1881] VicLawRp 179; (1881) 7 VLR (IP & M) 86; In re Goode (1890) 11 NSWLR (Eq) 281; In re Gillard [1949] VicLawRp 67; [1949] VLR 378; Re Egan [1963] VicRp 46; [1963] VR 318.

[20] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [212]-[216].

[21] In re Gillard [1949] VicLawRp 67; [1949] VLR 378, 381.

[22] See, eg, Offley v Best [1793] EngR 778; (1667) 83 ER 361; In re Gillard [1949] VicLawRp 67; [1949] VLR 378,381; Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VicRp 46; [1963] VR 318, 320; Van Wyk v Albon [2011] VSC 120 (24 March 2011); Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [285]-[288]; Swalwell v Swalwell (Needham J, unreported, 15 July 1988) cited in Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [310]; Estate Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53].

[23] See, eg, In re Gillard [1949] VicLawRp 67; [1949] VLR 378; Re Egan [1963] VicRp 46; [1963] VR 318; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014); Van Wyk v Albon [2011] VSC 120 (24 March 2011).

[24] Blake v Knight (1843) 3 Curt 547, 561, 564; (1843) 163 ER 821, 826; Gornall v Masen (1887) 12 PD 142; Palin v Ponting [1930] P 185, 188.

[25] In re Gillard [1949] VicLawRp 67; [1949] VLR 378, 381 citing Kipping & Barlow v Ash & Ors [1845] EngR 1034; [1845] 1 Rob. Ecc. 270.

[26] In the Will of Finn (dec'd) [1916] VicLawRp 21; [1916] VLR 165; Re Seymour [1934] VicLawRp 24; [1934] VLR 136.

[27] Re Culina; Poulos v Pellicer [2004] NSWSC 504 (31 May 2004) [10] (Windeyer J).

[28] Woodley-Page v Symons (1987) 217 ALR 25, 35.

[29] Re Culina; Poulos v Pellicer [2004] NSWSC 504 (31 May 2004) [12] (Windeyer J).

[30] See, eg, Moran v Place (1896) LR 21 PD 214, 218 (Lopes LJ). His Honour discussed the effect of changes to the rules of the court on the precedential value of cases decided prior to the relevant legislation coming into effect. These statements remain true today: Tobin v Ezekiel [2012] NSWCA 285 (13 September 2013) [13] (Campbell JA); Expense Reduction v Armstrong [2013] HCA 46; (2013) 250 CLR 303, 317-319 [36]-[42] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[31] Expense Reduction v Armstrong [2013] HCA 46; (2013) 250 CLR 303, 317-319 [36]-[42] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[32] Mandie v Memart Nominees [2016] VSCA 4 (5 February 2016) [42].

[33] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [202].

[34] Civil Procedure Act 2010, s 7(1).

[35] Ibid s 16.

[36] Actrol Parts v Coppi (No 3) [2015] VSC 758 (23 December 2015) [82] (Bell J).

[37] Civil Procedure Act 2010, ss 63(2)(a)-(b).

[38] Ibid s 63(2)(c).

[39] Van Wyk v Albon [2011] VSC 120 (24 March 2011) [10].

[40] Civil Procedure Act 2010, s 64.

[41] See, eg, Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VicRp 46; [1963] VR 318, 320; Swalwell v Swalwell (Needham J, unreported, 15 July 1988) cited in Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [310]; Estate Cockell; Cole v Paisley [2016] NSWSC 349 (4 April 2016) [53].

[42] Re Egan, deceased [1963] VicRp 46; [1963] VR 318.

[44] Re Barlow [1945] VicLawRp 33; [1945] VLR 193; Re Grey Smith [1978] VicRp 56; [1978] VR 596; Brown v Guss [2014] VSC 251 (2 June 2014).

[45] [2005] VSC 473 (30 November 2005) [4]-[5] (Harper J).

[46] [2009] VSC 386 (14 September 2009).

[47] [1994] FCA 1556; (1994) 55 FCR 492 having reviewed Australia in Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 and Onus v Alcoa.

[48] Environment East Gippsland v VicForests [2009] VSC 386 (14 September 2009) [71] (J Forrest J).

[50] Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 337 citing Baskcomb v Harrison [1849] EngR 1262; (1849) 2 Reb Ecc 118.

[51] [1998] HCA 66; (1998) 194 CLR 457, 474-475 [62]-[63] (Gaudron, Gummow and Kirby JJ).

[52] Estate Webster [2016] NSWSC 580 (11 May 2016) [22] (Lindsay J).

[53] Monty Financial Services Ltd v Delmo [1996] VicRp 7; [1996] 1 VR 65, 73-6 ('Delmo').

[55] Ibid 78, quoting Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 579 (Starke J).

[57] Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584, 592-3 (Winneke P), 606 (Dodds-Streeton AJA).

[58] Supreme Court (General Civil Procedure) Rules 2015, r 9.08.

[59] Report dated 15 October 2013 [2.75]-]2.83]