The Estate of Max Hall

Before: Slattery J

Decision: Directs the executors and beneficiaries to show cause as to why an independent administrator should not be appointed to facilitate the efficient administration of the estate. Proceedings are adjourned for further directions.

Catchwords: SUCCESSION — Executors and administrators — Rights, powers and duties – deceased appoints executors who will encounter conflicts of interest in the administration of the estate – executors have delayed in seeking probate of the estate and have not yet taken steps to administer the estate – whether the Court should appoint an independent administrator to administer the estate – whether the Court should take some other course, including accepting an undertaking from the executors to retain an Australian legal practitioner to assist them in the administration of the estate.

Legislation Cited: Succession Act 2006, ss 6, 8

Cases Cited: Nil

Texts Cited: Nil

Category: Procedural rulings

Parties: First Plaintiff: Lucas John Gooley
Second Plaintiff: Lynda Kay Gooley
Beneficiaries:
James Warwick Gooley
Jarrod Regan Gooley
Roberta Else Emanuel

Representation: Solicitors:
For executors: Ms M. Turnbull, Turnball Law Pty Ltd t/as 0414Lawyer
Beneficiary: Ms Roberta Else Emanuel in person

File Number(s): 2023/470207

Publication restriction: No

EX TEMPORE JUDGMENT

1. The late Max Hall, a long-term resident of Windsor near Sydney, died in November 2023. Little progress has been made in the administration of the deceased’s estate in the almost two years that has passed since his death. This judgment explains the Court’s latest orders and directions attempting to expedite the administration of the deceased’s estate.

2. Without intending any disrespect to any party, the Court adopts in these reasons the convention of referring to the parties and their immediate family members by their first names, as they did among themselves before the Court. Other persons are referred to by their surnames.

Recent Procedural Events, the Deceased’s Will and His Estate

3. These proceedings came before the probate judge on a motion filed by a daughter of the deceased, Ms Roberta Else Emanuel (“Roberta”) on 1 April 2025, and returnable on 6 June 2025. The motion joined as respondents the executors of the estate of the deceased, Mr Lucas John Gooley (“Lucas”), a son of the deceased, and Lucas’ wife, Mrs Linda Kay Gooley (“Linda”). The motion sought a range of relief to speed up administration of the estate, including an order appointing Roberta as tutor for Mrs Maureen Hall (“Maureen”), the widow of the deceased and a person under legal disability.

4. Ms M. Turnbull of Turnball Law Pty Ltd appeared on behalf of Lucas and Linda. Roberta appeared for herself. She was given leave to appear by AVL from Western Australia.

5. During the hearing of the motion, it became evident that the administration of the estate had not progressed since the deceased’s death due to conflict between the executors and the beneficiaries. On 21 July 2025 the Court appointed Roberta as Maureen’s tutor for these proceedings. There was no conflict between Roberta’s interests and her mother’s interests in the Court was satisfied that it was appropriate to make such an appointment it to ensure that Maureen’s interests in these proceedings were adequately protected. Maureen’s estate affairs outside the scope of these proceedings are being managed by the NSW Trustee, with Lucas acting as her financial manager.

6. The Court, of its own motion, also made orders on 21 July 2025 granting probate of an informal will dated 29 October 2020 (“the will”) to Lucas and Linda. The deceased executed the will during the pandemic, in a form will which was technically non-compliant with the provisions of the Succession Act 2006, s 6, but in a form and in circumstances which satisfy the Court that he intended it to be his last will. The Court ordered that it be declared his last will under Succession Act, s 8.

7. The will appoints Lucas and Linda as the executors and trustees of the deceased. It provides Maureen with a life tenancy in his estate, and thereafter makes gifts to Lucas and Linda, being Maureen’s son and daughter-in-law, of the deceased’s property in Windsor (“the Windsor property”). The will accounts for this gift of the Windsor property to them alone, as being in gratitude for the care Lucas and Linda provided to the deceased and Maureen during his lifetime. The will gave the residue of the estate in equal shares to all the four children of Maureen, namely Lucas, Mr James Gooley (“James”), Mr Jarrod Gooley (“Jarrod”), and Roberta.

8. The deceased and Maureen had lived for many years at the Windsor property. Lucas and Linda had lived there as well, assisting in the care of the deceased and Maureen. Prior to the death of the deceased, Maureen and the deceased moved from the Windsor property into rooms at a nearby nursing home.

9. The deceased’s estate consists of the following assets: the Windsor property, the refundable accommodation deposit from the nursing home, various other investments (the precise value of which is currently uncertain), and a bank account with an estimated value between $165,000 to $180,000. The Court does not have sufficiently reliable material before it to describe the rest of the estate, but it is said to comprise other financial assets that could be also worth about $50,000 and possibly more. The residuary estate is not a large estate. The estate does not appear to have any substantial liabilities. The precise value of the Windsor property is also unknown, but it comprises a freestanding dwelling on suburban land in Sydney and would be quite valuable.

10. Today, 22 October 2025, some three months after the Court’s orders granting probate and appointing the executors, no steps have yet been taken on behalf of the executors to obtain the probate that the Court granted on 22 July. This unsatisfactory situation has given the Court an opportunity to pause and consider the conflicts which have caused past delay in the administration of this estate and to consider whether the best course is for an independent administrator to be appointed.

11. The executors have conflicts of three kinds in administering this estate. The first conflict arises from the need to protect the financial interests of the life tenant, Maureen, in the administration of the estate. This will involve the recovery of rent from the executors for their occupation of the Windsor property since the death of the deceased. The second conflict relates to recovery for the benefit of the estate of monies said to have been applied by Lucas and Linda during the lifetime of the deceased. The third conflict relates to the need for the executors to apportion expenditure on the Windsor property to the current account of the life tenant or to the capital account of the executors who will inherit the remainder of the Windsor property.

12. But not all the beneficiaries have notice of these proceedings. James and Jarrod should be given notice that the Court is considering the possibility of making an appointment of an independent administrator. They should have an opportunity to make submissions in favour of or against this proposal which affects their interests, or to advance any other proposal.

Appointing an Independent Administrator

13. Established authority indicates that executors known to the deceased will not be passed over or removed merely because they have a conflict of interest in administering the estate, a conflict of which the testator was presumably aware. Executors who have conflicts of interest can still be appointed, and it is not ordinarily a disqualifying factor. Courts often appoint beneficiaries to administer estates.

14. But delay has already occurred in obtaining probate and commencing the administration this estate. There is a demonstrable lack of trust in between Roberta and the executors, and no clear consensus has yet emerged about dealing with the executors’ identified conflicts of interest. Further delays therefore are on the horizon, creating a substantial risk of the estate being consumed in costs, legal fees and expenses.

15. The three kinds of conflict of interest exist for these executors and this estate:

16. While they cared for the deceased and Maureen, Lucas and Linda lived at the Windsor property. Before the deceased's death they agreed to pay rent for their occupation of the premises at a rate of $190 per week - a situation which has continued after his death. But there is a conflict between the estate and the executors about whether the rent for the Windsor property from the death of the deceased should be a market rent of more than $190 per week and whether and when any arrears of rental should be paid to the estate.

17. Roberta alleges that Linda and Lucas applied funds from the deceased's estate prior to his death and used those funds for their own benefit, such that these monies should now be recovered from them on behalf of the estate, ultimately for the benefit of the residuary beneficiaries. The question raised is whether Lucas and Linda were properly authorised to undertake this expenditure.

18. Some expenditure has also taken place on the Windsor property for its upkeep. The parties cannot agree whether this expenditure is of a capital nature, which should be borne by Lucas and Linda, as the beneficiaries of the Windsor property in remainder, or whether this expenditure is merely in the nature of repairs and maintenance and should be to the account of the life tenant.

19. After the appointment of the executors on 21 July 2025, the Court made the following orders after noting (notation 8) the various conflicts of interest identified above:

“9. ORDERS that the executors provide to the beneficiaries of the estate and the life tenant by her tutor 14 October 2025,

a. the ordinary executors and trustee accounts that they have kept in discharge of their duties in respect of all estate expenditure and income incurred and earned up to 30 September,

b. to the extent that they are not otherwise revealed in the trustee accounts pursuant to subparagraph a hereof, a concise but complete explanation of how the estate is dealt with in proposes to deal with each of the matters referred to in NOTE 8 a, b and c above.”

17. No accounts have yet been provided to the beneficiaries in accordance with this order. Ms Turnbull, who appears for Linda and Lucas, says that she was awaiting the issue of a grant of probate before formal accounts were provided. Some material has been provided, which Roberta complains is disorganised and difficult to follow. That material has certainly not satisfied the beneficiaries.

18. The immediate issues to be addressed are: (1), the preparation of proper accounts; (2), determination of what proper rent should be charged for and recovered in respect of the Windsor property on behalf of the estate from Lucas and Linda; (3) how expenditure on the Windsor property should be apportioned; and (4) whether any other expenditure on behalf of Max, or of Max's funds, should be recovered from either Linda and Lucas or other persons.

19. The Court is not confident from the performance of the administration of this estate so far that these issues can be dealt with quickly and efficiently by these executors. The Court therefore gives notice in the directions below to all the beneficiaries and through these reasons, for the executors to show cause why an independent professional administrator should not be appointed to administer this estate.

20. But in an estate of this modest size, the Court is hesitant to make an order appointing an independent administrator which is likely to become expensive for the estate. Ms Turnbull has said on behalf of Lucas and Linda that her instructions will end upon the executors receiving the grant of probate ordered by the Court in July, and that the executors had planned to appoint an accountant, a Mr Chalker, with experience in estate administration to consult about the administration of the estate.

21. This is a step in the right direction and raises several other options. It may perhaps be useful for the Court to formally appoint Mr Chalker as the independent administrator of the estate, if he is willing to take such an appointment, rather than for him to be engaged effectively as a consultant to the executors. If he is not willing, someone else may have to be appointed, and the Court will allow the parties to nominate, by the provision of a biography and the hourly charge-out rates, any competing candidates for this role.

22. But if an independent administrator is not appointed, the Court is not prepared to allow this estate to be administered by Lucas and Linda on their own without legal assistance. They have not so far demonstrated sufficient insight into resolution of the conflicts of interest that beset them for the Court to be confident that they could administer this estate without the benefit of continuing properly qualified legal assistance. When the Court raised this matter, Lucas and Linda indicated that they were prepared to undertake to engage an Australian legal practitioner to finalise the administration of the estate. If the Court does not appoint an independent administrator to this estate, it will require that undertaking to be given formally to the Court.

23. Roberta voiced concern on behalf of the residuary beneficiaries that the costs of appointing an independent administrator would have to come out of the residuary estate. Roberta is at liberty to apply later for costs to be shared more equitably.

24. Roberta has also raised the possibility of mediation. That is a positive idea, and a Court annexed mediation is appropriate in this case. But the Court is only likely to order mediation, when there is someone (an independent administrator or a solicitor advising the executors) who has control of the somewhat chaotic documentation in this case and who is accountable to the Court. The parties can only fruitfully mediate their differences in this case when the facts are clearer than they are at present.

Conclusions and Orders

25. For these reasons, the Court makes the following orders and directions, which have been varied in chambers from the orders pronounced in open Court:

26. DIRECT the executors to provide a copy of this judgment and these orders to James Warwick Gooley and Jarrod Regan Gooley by 4.30pm on Tuesday, 28 October 2025, either via email or to be posted to a postal address of those beneficiaries by that time.

27. ADJOURN these proceedings for further directions to 10 November 2025 at 9.30am, or at such other date as is arranged through my Associate.

28. DIRECT any party wishing the Court to appoint an independent executor, whether it be Mr Chalker or an accredited probate specialist, should provide the biographical details in charge out rates of such proposed independent executor to the Court by no later than Tuesday, 4 November 2025.

29. NOTE that if the Court decides not to appoint an independent administrator, that the executors will be required to undertake to the Court to continue to retain an Australian legal practitioner to assist them in the administration of the estate.

30. NOTE that whoever is appointed the independent executor in this case or if the estate is administered by the executors with the assistance of a solicitor in the future, the costs of the administration of this estate should be limited to a definite percentage of the remaining assets of the estate to ensure that the residuary estate is not consumed by legal and administration fees.

31. NOTE that the residuary beneficiaries are at liberty to argue that the costs of appointing an independent administrator will not be borne by the residuary beneficiaries.

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