Thomas v Aplitt & Anor

Supreme Court of NSW|2023-06-08|Before: Hallen J, Powell J

Janice Millicent Thomas (Plaintiff) Jeffrey Arthur Aplitt (first Defendant) James Robert Keith Aplitt (second Defendant) Representation: Counsel: E Glover (Plaintiff) F F F Salama (first Defendant) No appearance (second Defendant)

Introduction

These proceedings concern the estate of Bridget Agnes Aplitt (the deceased) and the application, made by the Plaintiff, Janice Millicent Thomas, who is one of the six children of the deceased. The Defendants, Jeffrey Arthur Aplitt and James Robert Keith Aplitt, are also children of the deceased, and the two substitute executors named in the copy of an undated Will made by the deceased in 1972. Hereafter, for convenience, I shall refer to the copy Will as "the Will".
The deceased died on 5 December 1997 aged 90 years.
The deceased's husband, Jack Vermont Aplitt, who was the instituted executor named in Clause 2(a) of the Will, predeceased the deceased. This Court granted Probate in common form, it would seem, of part of the deceased's Will to the two substitute executors on 17 November 2000. The grant was limited until the original Will, or a more authentic copy thereof, was proved.
I have written "part of the deceased's Will" because, at the commencement of the hearing, the Plaintiff tendered the second page of the Will (Ex. P1) which did not seem to have formed part of the copy of the Probate parchment included in the evidence.
However, I have inspected the Court's Probate file, which reveals that the whole of the Will, containing a copy of all 3 pages, was with the original Probate application and the grant. The original Will file should be retained as part of the file in these proceedings until orders are made, and entered, and the grant of administration is made.
Clause 3(b) of the Will provided for the whole of the estate to be left to the executors, on trust, to sell, call in, and convert into money, the estate, to pay all debts, funeral, and testamentary, expenses and succession duties, both State and Federal, "and to hold the balance of moneys then remaining UPON TRUST for my six (6) children Jack William Aplitt, Roslyn Jill Sharp, Jennifer Edith Serafini, Jeffrey Arthur Aplitt, Janice Millicent Thomas, and James Robert Keith Aplitt, or the survivors of them, in equal shares absolutely".
(Despite the terms of Clause 3(b), Clause 5 of the Will provided, that in the event any child predeceased the deceased "leaving a child or children him or her surviving, then such child or children shall take and if more than one equally between them the share in the [deceased's] estate which his, her or their parent would have taken in the [deceased's] estate if such parent had survived [the deceased]." Although this Clause of the Will appears inconsistent with Clause 3(b), any inconsistency is irrelevant in the events that happened since all of her children survived the deceased.)
In the Inventory of Property attached to, and placed inside, the grant of Probate, the deceased's estate was disclosed as having an estimated, or known, value of $320,496. It was said to consist of real property situated at Cary Street, Baulkham Hills (the Baulkham Hills property), as well as cash in bank and in a credit union ($20,496). (I have omitted a reference to cents and shall continue to do so.)
The evidence reveals that, despite the deceased's death over 25.5 years ago, the Baulkham Hills property has not been sold. The title remains registered in the names of the Defendants "as joint tenants". There seems to be no dispute that they hold the Baulkham Hills property in their capacity as trustees. It will be necessary to make an order that the Baulkham Hills property vest in the Plaintiff, as administrator, as part of the final orders, on the separate question, that I propose to make.
During the hearing, it was thought necessary to allow each party to file further evidence on the question of persons entitled to participate in the distribution of the deceased's estate, so as to establish whether all necessary persons had been served with notice of the Plaintiff's application.
The Plaintiff filed a further affidavit on 19 June 2023 as to service to which I shall refer below. On 23 June 2023, the Plaintiff's solicitor filed a further affidavit going to obtaining the consent of affected persons that had been foreshadowed.
The first Defendant's solicitors filed an affidavit on 15 June 2023 explaining the steps taken by them to effect service on the second Defendant.

Some background facts

All of the named residuary beneficiaries survived the deceased.
Jennifer played no part in the proceedings, even though she was advised of the hearing date. On 19, and 21, May 2023, she consented, in writing, to the orders sought by the Plaintiff on the separate question.
The deceased's daughter, Roslyn, died on 26 June 2003, aged 65 years. She left surviving her two children, Donna Shaw, and Kim Bradley. She left a Will dated 16 May 2003, probate of which Will was granted to Donna and Kim, by this Court, on 12 December 2003. They were the sole residuary beneficiaries, in equal shares, named in Roslyn's Will.
On 21 May 2023, each of Donna and Kim, consented, in writing, to the orders sought by the Plaintiff on the separate question.
Roslyn's third child, Daryl Sharp, predeceased her, having died, intestate, on a date between 28 and 29 November 2001. He left four children surviving him, being Belinda Anderson-Sharp, Brett Anderson-Sharp, Jeremy Dorset-Sharp, and Alexander Dorset-Sharp. On 23 June 2023, each of them consented, in writing, to the orders sought by the Plaintiff on the separate question.
(The evidence reveals that no grant of administration of Daryl's estate was obtained as his only property in New South Wales comprised the proceeds of a superannuation fund.)
The deceased's son, Jack, died, intestate, on 20 September 2008. The evidence reveals that he died without a spouse and without issue. The first Defendant obtained Letters of Administration in respect of Jack's intestate estate on a date not revealed in the evidence. However, the Court's Probate records reveal that on 20 July 2009, Letters of Administration on intestacy were granted to the first Defendant.
The four children of the deceased, being the three parties, and their sister, Jennifer, were alive at the date of the hearing. All, except for the second Defendant, have consented to the revocation of the grant and to the Plaintiff being appointed as the administrator to complete the administration of the deceased's estate.

The Proceedings

The Plaintiff filed a Summons on 16 November 2022 in which she sought different claims for relief. So far as is relevant to these reasons, it is only necessary to refer to Paragraphs 1 and 2 of the Summons, which are in the following terms: "1. That the First and Second Defendants be removed as Executors and Trustees of the Estate of the Late Bridget Agnes Aplitt ("the Deceased"). 2. That the Plaintiff be appointed the Sole Executor and Trustee of the Estate of the Deceased.
The other claims for relief relate to what is said to flow from the alleged delay in administering the deceased's estate. They include, in Paragraphs 3 to 7 of the Summons, relief in the nature of an occupation fee, for accounts, for payment of cleaning costs for the Baulkham Hills property, for sale of the Baulkham Hills property, equitable compensation for breach of fiduciary duties, and for costs of the proceedings, calculated on the indemnity basis.
The first Defendant filed an Appearance on 21 February 2023. He has appeared, by his legal representatives, at the various directions hearings in the Succession List. In addition, he filed, and read, affidavits on the Plaintiff's application.
The second Defendant has played no part in the proceedings. He did not file an Appearance, or appear himself, or by a legal practitioner, at any time during the directions hearings. In the circumstances, he is not an active party.
There is evidence to which I shall refer, which clearly demonstrates the efforts made by the Plaintiff, and, also, by the first Defendant, respectively, to bring the proceedings to his attention. Undoubtedly, the task of the Court has been made more difficult, and the costs have been increased, by his non-engagement in the proceedings.

Application for determination of separate question

On 22 May 2023, the legal representative of the Plaintiff, and of the first Defendant, respectively, joined in making what I understood to be an application that the matter, so far as it related to Paragraphs 1 and 2 of the Summons, be listed for hearing. I treated the oral application as one for the determination of a separate question. I did not require a notice of motion to be filed as there did not seem to be any opposition to it.
In determining the oral application, I had in mind the principles that I had set out in Southwell v Bennett [2010] NSWSC 1372 at [14]-[17], and Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593 at [15]-[20], in which Beech-Jones J (as his Honour then was) adopted those principles (and made five further points). It is unnecessary to repeat those principles.
Whilst the decision to order the determination of a separate question is one for the Court, the attitude of the parties is relevant to the exercise of the discretion to make an order. In this case, the first Defendant has joined in the application. The second Defendant is silent.
The exercise of the discretion to make an order for the determination of a separate question should be approached with an appropriate degree of care or caution. I am satisfied that the determination of the separate question will contribute to the prompt disposal of crucial issues in the litigation. The parties who appeared expressed the hope that once the Baulkham Hills property is sold, the other relief sought in the Summons might be able to be resolved between the members of the family. It will also achieve economies in time and expense in the determination of the balance of the proceedings if that is required.
Bearing in mind the date of death of the deceased, and the apparent failure to administer the deceased's estate, it seemed to me that the relief claimed could be dealt with in this way. To do so is in the best interests of the parties and the other beneficiaries. By contrast, to not make such an order will delay the completion of the administration of the deceased's estate.
I shall include an order that the questions in Paragraphs 1 and 2 of the Summons be determined as a separate question before the determination of the balance of the claims for relief sought by the Plaintiff. (It will also be necessary to make some orders consequential upon the revocation of the grant of Probate.)

Evidence of service or attempted service on the second Defendant

Both the Plaintiff and the first Defendant gave evidence of service on the second Defendant.
The Plaintiff effected personal service of the Summons, and the Plaintiff's affidavit affirmed 14 November 2022 in support of the Summons, on the second Defendant on 20 December 2022 at his residence in Yamba: Affidavit, Stephen Geoffrey Colman, 21 December 2022. Mr Colman deposed that the second Defendant confirmed his identity and said that he would not be "able to attend".
Ms Belinda Nixon, the Plaintiff's solicitor, chronicled the subsequent attempts at service on, and attempted contact with, the second Defendant: Affidavit, Belinda Lee Nixon, 7 June 2023. She wrote that she had dictated letters addressed to the second Defendant, which were subsequently mailed out by the receptionist on the same day, on 24 January 2023 (enclosing an affidavit of service of Mr Colman affirmed 21 December 2022), on 30 January 2023 (regarding the orders made by Registrar Walton following the first directions hearing), and on 17 May 2023 (serving a copy of the Plaintiff's affidavit affirmed 17 May 2023).
Ms Nixon had also dictated a letter on 28 April 2023, which was mailed on the same day, sent via Express Post, and marked as delivered according to Australia Post's tracking, on 1 May 2023: Affidavit, Belinda Lee Nixon, 19 June 2023 at pars 6-7, Annexures C-D. A further letter informing the second Defendant of orders made by the Court on 1 May 2023 was dictated and mailed on 8 May 2023 via Express Post. It was marked as delivered on 10 May 2023: Affidavit, Belinda Lee Nixon, 19 June 2023 at pars 9-10, Annexures E-F.
Ms Nixon gave evidence that mobile telephone numbers that had been provided by the second Defendant had been disconnected. She stated that she had, to date, received no response from the second Defendant, or any legal representative on his behalf, to any correspondence.
The first Defendant's solicitor, Mr Yu-Sun Tang, deposed to forwarding correspondence and Notice of Renunciation of Probate documents, via registered post, to the second Defendant on 7 March 2023 and again on 5 April 2023. A further letter, enclosing a copy of the first Defendant's affidavit sworn 19 April 2023, was also said to have been sent by registered post: Affidavit, Yu-Sun Tang, 15 June 2023 at pars 4-8. (There may be a typographical error in the affidavit as to the date the letter was sent.)
No response to any correspondence was received, and the registered mail item dated 7 March 2023 was returned by Australia Post on 29 March 2023 as it had not been claimed: Affidavit, Yu-Sun Tang, 11 May 2023 at pars 4-5.
An affidavit sworn 5 June 2023 by Mr Colman deposed to attempted service of further documents on the second Defendant at his residence on 25 May 2023. Despite hearing noise from inside the residence, which Mr Colman believed to be from a television, and seeing a grey Toyota Camry vehicle parked in the driveway, there was no response from any person inside. In the circumstances, Mr Colman placed the documents (which included the Summons, the Plaintiff's affidavit affirmed 14 November 2022, the first Defendant's affidavit sworn 19 April 2023, an affidavit of the first Defendant's solicitor sworn 11 May 2023, a further affidavit of the Plaintiff affirmed 17 May 2023, a Renunciation of Probate by the first Defendant, and a letter addressed to the second Defendant dated 24 May 2023) in a sealed envelope addressed to the second Defendant and secured the envelope to the front door of the residence.
Personal service, again, was unsuccessfully attempted by a process server company, POLO CPI, on behalf of the first Defendant, on 31 May 2023. It was again noted that a Toyota Camry vehicle was parked in the driveway, but there was no response to the knocking on the door by, or calling out to, any occupant: Ex. D1.
There seems to have been a complete lack of interest in the administration of the estate by the second Defendant.
It was then necessary to consider whether the hearing of the separate question should proceed as the second Defendant did not appear.
In Watson v Hannover Life Re of Australasia Limited [2018] NSWSC 877 at [41]-[43], I wrote: "UCPR rule 29.7 applies when a trial is called on. If any party is absent, the Court may proceed with the trial generally, or so far as concerning any claim for relief in the proceedings or may adjourn the trial. There has been no application by the Defendants to proceed with the trial or to adjourn it. … A party is relevantly absent only if he, she, or it, had knowledge, or notice, of the hearing date, and is neither present, nor represented, when the matter is due to be heard. In NSW Trustee and Guardian as executor of the Will of Michael Robert Walsh (Dec'd) v Gregory (2012) 18 BPR 35,153; [2012] NSWSC 681, I wrote, at [18] - [22]: 'The clear purpose of UCPR r 29.7 is the efficient dispatch of court business. However, in dispatching court business, I cannot ignore the right of a defendant to be informed, or, at least, to be made aware, of a trial date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589): It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside, and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside … In such a case there has been no valid trial at all. In the circumstances, the first issue to address is whether I am satisfied that it is appropriate to proceed in the absence of the Defendant or of anyone representing her. A party is 'absent' within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial. … Finally, on the question, I have not forgotten what I said in Smirski v Macander [2010] NSWSC 929 at [34]: It is to be remembered that the primary considerations on whether to proceed ex parte concern whether there is urgency; whether irreparable damage would flow from making an ex parte order; whether hardship would flow to a party against whom an order is made and whether such an order can be set aside: Ndjamba v Toyota Finance Australia Ltd [2010] NTSC 23, per Blokland J at [8].'"
I also had regard to the obligations imposed by s 56 to s 60 of the Civil Procedure Act 2005 (NSW). Section 56 emphasises that the overriding purpose of the Act and the rules of court, in their application to civil proceedings, is to facilitate the just, quick, and cheap resolution of the real issues in the proceedings. The Court is required to give effect to the overriding purpose when it exercises any power given to it by the Act or by the rules of court. Section 57, in turn, requires the Court to have regard to specified matters, namely the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings. Section 58 requires the Court, in deciding whether to make any order or direction for the management of the proceedings, to act in accordance with the dictates of justice, and to have regard to the provisions of sections 56 and 57. Section 59 requires the Court to, as far as possible, eliminate delay between the commencement of proceedings and their final determination. Section 60 requires the Court to endeavour to resolve issues in such a way that the cost to parties is proportionate to the importance and complexity of the subject-matter in dispute.
In the present case, there is some element of urgency in dealing with the application. The deceased died over 25 years ago, and the proceedings have been on foot for some months. Furthermore, in my view, the second Defendant has been given enough opportunities to be heard, but he has chosen not to take advantage of those. Nor has he filed an Appearance, sought the leave of the Court to take any step in the proceedings, or provided to the Court, or, it appears, to the legal representatives of the Plaintiff or the first Defendant, any adequate explanation for his non-appearance.
I considered whether the Court should adjourn the proceedings to give the second Defendant one further opportunity to appear. However, it seems to me that there was no utility in doing so, in the absence of any reasons why he has not filed an Appearance, or any affidavits, and also why he has not appeared at the hearing. There is simply no reason to believe that he would be more likely to appear on any subsequent occasion to which the hearing is adjourned, than on the hearing. As Black J wrote in In the matter of Central Management (NSW) Pty Ltd (in liquidation) ACN 139 989 852 [2017] NSWSC 1258 at [2], the right to be heard is "a right to an opportunity to be heard, and not a right to frustrate the hearing of proceedings by not attending them".
In the circumstances, I determined that the hearing of the separate question should proceed.

The Plaintiff's evidence

The Plaintiff filed two affidavits in the proceedings: the first, affirmed 14 November 2022, comprising 57 paragraphs, spanning 9 pages; and the second, affirmed 17 May 2023, comprising 25 paragraphs, spanning 7 pages. (I shall only refer to the evidence that goes to the separate questions as the evidence going to other parts of the relief claimed is not relevant.)
She was born in November 1941 and is currently 81 years old. From her evidence, it is clear that she shared a close relationship with the deceased.
On about 27 April 2000, the Plaintiff received correspondence from Shephard & Shephard, the then-solicitors of the Defendants, enclosing an affidavit and a consent to Probate being granted of the unsigned copy Will. She was asked to provide a cheque for $300 to pay for the expenses of Roslyn, Jennifer, and herself. She responded with the paperwork and the cheque on 16 June 2000: Affidavit, Janice Millicent Thomas, 14 November 2022 at Annexure D.
Probate was granted on 17 November 2000. The Plaintiff did not recall receiving a copy of the grant. On 18 December 2000, she received a distribution from the estate of $2,058.
She noted that the second Defendant vacated the Baulkham Hills property in December 2019 and moved to Yamba, without any discussion.
The Plaintiff said that she had not thought much about the sale of the property, as she believed it was the Defendants' duty, as executors, to organise this, and she had already attempted several times to engage with the Defendants, via their solicitors, with regards to selling the property. She was not aware that she could apply to the Court seeking their removal as executors: Affidavit, Janice Millicent Thomas, 14 November 2022 at par 38.
It appears that no benefit has accrued to the estate by way of income from the rental of the Baulkham Hills property since the deceased's death.
In early 2021, the Plaintiff observed that the Baulkham Hills property was in poor condition and began attending there, with her husband and daughter, to mow the lawns and clean up some of the rubbish. She telephoned the first Defendant, who agreed that the estate needed to be finalised and the property sold and arranged to attend the property with the Plaintiff in April 2021.
On this occasion, which the Plaintiff said was the first time she had been inside the house since the deceased's wake, the Plaintiff described the interior of the property as "almost unrecognisable" and "a devastating sight": Affidavit, Janice Millicent Thomas, 14 November 2022 at par 42, Annexure I. She said that there was mould throughout the walls and ceiling, holes in the roof, water leakage, damage to furniture and carpets, and debris and rubbish everywhere. The Plaintiff sent photographs of the interior, along with the outstanding water and council rates to the second Defendant.
In August 2021, the first Defendant forwarded a letter from his solicitor stating that a Contract for Sale would be prepared after $300 was paid into their trust account.
In September 2021, the Plaintiff telephoned the second Defendant, who said that he would not sign a Contract for Sale until the first Defendant compensated him for missing property.
In July 2022, the Plaintiff instructed Karen Haga & Associates to act on her behalf and to correspond with Shephard & Shephard regarding the finalisation of the administration of the estate. She stated that this was when she first became aware she could seek to have the Defendants removed as executors.
In September 2022, the Plaintiff attempted to call the second Defendant, but his number had been disconnected. She also paid outstanding council rates of $3,994 and noted outstanding water rates of $1,492. She was unable to contact him when she attempted to call again in October 2022 and December 2022. She noted that the second Defendant did not respond to any correspondence sent to him by her solicitors.
The Plaintiff stated that she and her husband had been undertaking the work of mowing and clearing rubbish from the Baulkham Hills property since February 2021, without payment. She also continued to collect mail and forward copies of bills to the Defendants. She said that the property remained uninhabitable.
Importantly, the Plaintiff gave evidence of the steps she intended to take to administer the estate if a grant were to be made to her. She stated that she wished to have a real estate agent list the Baulkham Hills property for sale by auction in mid-August 2023. Market appraisals for the Baulkham Hills property had been obtained, indicating that it should be sold as a "knock down" due to its uninhabitable condition: Affidavit, Janice Millicent Thomas, 17 May 2023 at Annexure G.
She said she would engage rubbish removalists and cleaners to improve the state of the property, and deal with any requests from beneficiaries as to keeping any items from the property. She would then follow the recommendations of the real estate agent and auctioneer in respect to setting a reserve price and auction date and selling the Baulkham Hills property at the best achievable price. After the sale of the property, she intended to pay any outstanding bills, legal costs, agent's commission, cleaning costs, and auction and marketing costs. The net proceeds of sale would be deposited into the trust account of her solicitors pending the resolution of her claim. She stated that she intended to follow up on the cash components of the estate by liaising with Shephard & Shephard, and with the bank and credit union at which the funds had been held. She stated that she would carry out these steps in a timely manner: Affidavit, Janice Millicent Thomas, 17 May 2023 at par 20.
I accept her unchallenged evidence.

The first Defendant's evidence

The first Defendant swore one affidavit in the proceedings on 19 April 2023, comprising 47 paragraphs, spanning 9 pages. (Again, I shall only refer to the evidence that goes to the separate questions as the evidence going to other parts of the relief claimed are not relevant.)
He was born in June 1940 and is currently 83 years old.
He noted that the second Defendant refused to sign any paperwork regarding the sale of the Baulkham Hills property due to a belief that the first Defendant held some of his possessions. The first Defendant had delivered some of the second Defendant's possessions to his Yamba residence with his car and trailer, but other possessions remained at the Baulkham Hills property. Apparently, the second Defendant had asked the first Defendant to pack up and bring the remainder of his possessions to him: Affidavit, Jeffrey Arthur Aplitt, 19 April 2023 at pars 12-14.
In 2019 and 2020, the first Defendant received two letters of demand from a solicitor for the second Defendant regarding his refusal to deliver the second Defendant's possessions. He responded explaining that the items were still at the vacant Baulkham Hills property, that no particular person currently had possession of them, and that the second Defendant had not returned to the property to collect his items and to assist in cleaning up the property in accordance with his role as executor.
The first Defendant recalled that the second Defendant's daughter attended the property and removed the rest of his belongings. He believed that she still had possession of those items and had not delivered them to the second Defendant: Affidavit, Jeffrey Arthur Aplitt, 19 April 2023 at par 19.
He claimed that he attended the Baulkham Hills property, on a monthly basis, following the death of his father, and that he continued to undertake yard maintenance, including mowing lawns, trimming trees, and removing garden debris, after the deceased's death, until he became ill in 2020: Affidavit, Jeffrey Arthur Aplitt, 19 April 2023 at pars 16, 43-45, Annexures A-M. He wrote that the second Defendant had removed rubbish such as old refrigerators from the house but had left them in the backyard. He claimed that the second Defendant had told him, upon moving to Yamba, that he would return to clean up the interior of the property but had subsequently refused to do so.
In March 2020, the first Defendant became severely ill and was diagnosed with Stage 4 cancer. He underwent surgery and immunotherapy to treat his cancer but developed arthritis as a side effect. His health was poor enough to require full-time care from his daughter.
In January 2022, the first Defendant contracted COVID-19 and suffered a minor stroke. Though he recovered from these conditions, his cancer returned in May 2022, requiring further surgery to remove his lymph nodes. This caused him to develop lymphoedema in his arm, which he now manages by wearing a compression sleeve and glove that limit his physical movement.
As a result of these health issues, he stated that he had been unable to finalise the administration of the deceased's estate and could not undertake any maintenance or cleaning of the Baulkham Hills property. Additionally, in 2021 he was attending to some remaining matters relating to the administration of the estate of his late wife, which he prioritised over the deceased's estate as they concerned the property in which he resided.
However, he annexed receipts evidencing his continued payment of energy and water rate bills for the Baulkham Hills property, after the second Defendant ceased paying them in 2019-2020: Affidavit, Jeffrey Arthur Aplitt, 19 May 2023 at Annexures O to Z inclusive. He said that he had contacted the Baulkham Hills Shire Council to inform them of his intention to sell the property, and the Council had agreed to waive immediate payment of outstanding rates.

The Law

The court is possessed of an inherent power, by reason of the conferral of the power to make a grant of probate or administration, to revoke or suspend its own grant for just cause.
As is also well-known, Probate litigation is "interest litigation": Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [49] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631 at 634B-C (Powell J). To commence, or to be a party to proceedings relating to a particular estate, a person must be able to show that her, or his, rights will, or may, be affected by the outcome of the proceedings.
The Plaintiff must establish her standing to seek revocation of the probate. Generally speaking, an interest sufficient to entitle a person to oppose a grant is sufficient to entitle the same person to apply for revocation of a grant: In re Gillard deceased [1949] VicLawRp 22; [1949] VLR 378 at 381 (Barry J); Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [213] (Lindsay J).
The interest of a beneficiary, before completion of executorial duties, is an entitlement to due administration of the estate, rather than an interest in particular assets of the estate: Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 at 717; [1964] UKPC 2; Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411 at 435, 451 and 459; [1960] HCA 94 at [111], [139] and [154].
In this case, the Plaintiff relies upon her standing as one of the six residuary beneficiaries named in the Will. In the circumstances, she has standing to seek an order revoking the grant of probate.
In Estate of Philip Mack (Deceased) [2022] NSWSC 1629, I wrote at [16]-[20]: "A grant of Probate, or administration, is a judicial act, and becomes an order of the Court. A grant in common form, or a non-contentious grant, is usually, and in this case, was, made by a Registrar of the Court. The grant provides an authority to the executors who are named in the testamentary instrument to deal with the assets of the deceased's estate as directed in the deceased's Will and to exercise the powers of the office of executors. However, a grant in common form is not a final judgment and it is open to a Court, exercising probate jurisdiction, to revoke the grant, at any time, upon a proper case being established. That the Court possesses an inherent power, by reason of the conferral of the power to make a grant of probate or administration, to revoke its own grant for just cause cannot be disputed: Bates v Messner (1967) SR (NSW) 187. The grant of Probate in common form is in the nature of an interlocutory judgment: Caldar v Public Trustee [2003] NSWCA 187 at [5] (Handley JA, Ipp and Tobias JJA agreeing), followed in Mullins-Trnovsky v Adams (2014) 121 SASR 155; [2014] SASC 116 at [8] (Gray J); Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [223] (Lindsay J); Pye v Pye [2021] NSWSC 686 at [63]. The sorts of situation that may reflect a "proper case" are not rigidly confined. As was written by Asprey JA in Bates v Messner at 191-192: "The exercise of this Court's jurisdiction to revoke a grant of probate, unlike the Court's power to revoke a grant of letters of administration, depends upon the inherent jurisdiction of the Court …. I shall make no attempt to define all circumstances which may attract the exercise of the court's jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill-health, or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant." Also see Richardson v Rearden [2006] NSWSC 1252 at [16] (Campbell J). However, as was noted in Neilson v Public Trustee - The Estate of Ellen Letitia Neilson (Supreme Court (NSW), Powell J, 8 May 1992, unrep), it was written that: "the classes of case in which the power has, in the past, been exercised being usually described as being: 1. where the grant is, in effect, a nullity; 2. where the surname or first Christian name, of the deceased in the grant is seriously incorrect; 3. where the grant has been obtained on a false, or incorrect, basis; 4. where, by reason of supervening events, the grant has become defective"."
In The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 at [23], E M Heenan J wrote: "There is a wide variety of circumstances under which revocation of a grant of probate or letters of administration, which have not been the subject of proof in solemn form, may be made. Broadly, these may be divided into two categories. The first being where it is discovered that there is some error which has been made in the grant of representation or where the particular grant should not have been made (for example, the discovery of a later will, or of a subsequent marriage which revoked the will in question). The second category includes revocations made necessary or desirable to ensure the due administration of the estate such as, for example, where the grantee becomes sick or disabled, or has disappeared. The ultimate purpose of the court is to ensure the due and proper administration of the estate and of the interests of the parties beneficially entitled to it." (Citations omitted)
Before leaving the citation of authority, I refer to In the Goods of Loveday [1900] P 154, in which Jeune P wrote, at 156: "After all, the real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto … If the Court has in certain circumstances made a grant in the belief and hope that the person appointed will properly and fully administer the estate, and if it turns out that the person so appointed will not or cannot administer, I do not see why the Court should not revoke an inoperative grant and make a fresh grant."
Any order made to revoke a grant is discretionary: Bramston v Morris (Supreme Court (NSW), Powell J, 20 August 1993, unrep): "It should, however, be noted that, although the power to revoke a grant undoubtedly exists, it is not exercised as a course, or even as a matter of right; rather, the question whether, in a particular case, the power ought to be exercised is one which lies in the discretion of the Court, having regard to all the circumstances of the case."
The significance of delay in an application for revocation was explained by White J in Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [135]-[136] (citations omitted): "It is an inherent feature of a grant of probate in common form that the grant is revocable. The grant does not create a res judicata, but is subject to later challenge ... Delay in seeking revocation of a grant of probate in common form can be a bar to such a claim. However, so far as the authorities cited to me show, where a claim for revocation of a grant of probate has been barred by reason of the applicant's delay, there have been other features beyond mere delay. There has been not only delay, but acquiescence in the grant, or the delay has been such that there would be no utility in revoking the grant."
One must remember the basic rule when the court is considering whether to revoke a grant and to make a new grant is that to do so must be for a reason, or reasons, that advances, or advance, the real object of administration, that is, the due and proper administration of the estate. Therefore, I have also considered the consent of the beneficiaries in the exercise of discretion to revoke the grant.
I next turn to the method of providing the relief sought. Where Probate has been granted to more than one person, and where one, or more, of the other executors to whom Probate has been granted is to be removed for proper reasons, the usual practice of the Court is to recall, and revoke, the original grant, and make a fresh grant of administration, with the deceased's Will annexed to the remaining executor or executors, or to the administrator. The revocation of the grant is a revocation in toto, not a partial revocation, and the fresh grant to the person fund to be entitled, entirely supplants the former grant: Sandra Elizabeth Lester v Terrence Myles Brown [2022] NSWSC 716 at [112]. Also see Gorman v McGuire: Estate of J.M. Gorman [2002] NSWSC 1089 at [6] (Palmer J).
In this regard, I repeat what was written by Lindsay J in Riccardi v Riccardi [2013] NSWSC 1655 at [8(a)], that "the appropriate (and traditional) form of relief", is an order for the revocation of the grant of Probate, coupled with an order making a fresh grant of letters of administration with the Will of the deceased annexed. Consequential orders are also appropriate.
Respectfully, I also agree with his Honour's view, expressed at [9], that: "(a) an order for grant of administration (whether by way of a grant of probate or a grant of letters of administration) is in the nature of an instrument of title; (b) an order the revocation of a grant, coupled with orders for delivery up of the revoked grant and for the issue of a fresh grant, is likely, in this as in most cases, to facilitate the due administration of an estate by removing a spent grant from circulation or, at least, making express, clear provision for its removal from circulation; and (c) there remains utility in the distinction (albeit sometimes difficult in practice to differentiate) between the office of an executor (or administrator), on the one hand, and, on the other hand, the office of a trustee following completion of executorial duties: Estate Wight; Wight v Robinson [2013] NSWSC 1229 at [11]-[22]. (d) in a case in which, as here, the grant sought to be revoked is a grant of administration with a will annexed (rather than a grant of administration in respect of an intestate estate) there is no material distinction between the process involved in revocation of a grant of probate and that involving revocation of a grant of administration. In each type of estate, in decision-making about the identity of a legal personal representative, allowance may need to be made for any expression of testamentary intention in a will of the deceased."
To ensure that the former executors can no longer deal with estate property, it may be noted that the original grant of Probate should be recalled and be delivered up for cancellation. That the original grant should be recalled and revoked, and that a fresh grant should be made, is necessary because a grant of probate is a public document and, often, must be produced to third parties so that the executors can get in, and administer, the property of the deceased. The grant must be, and must appear to be, complete on its face so that third parties may act upon it without concern that it may have subsequently been varied as to the continuance in office of one of the named executors: Gorman v McGuire: Estate of J.M. Gorman at [7].

Conclusion

These are proceedings concerning the administration of the estate of a will-maker who died over 25 years ago. The deceased's estate was, and is, hardly complex, and its administration ought to have been completed well before now. The delay in the completion of the administration appears extraordinary, considering the nature and value of the deceased's estate and, on the current evidence, no satisfactory explanation for that delay has been given.
Indeed, I am satisfied that the process of administration of the estate has not passed from the performance of executorial duties to the holding of estate property on trust for the beneficiaries. There has been no formal declaration (pursuant to s 11 of the Trustee Act 1925 (NSW) or otherwise) that all executorial duties with respect to estate property have been duly performed and that the Defendants hold the Baulkham Hills property as trustees.
I am conscious that the Court should not readily replace executors identified by the deceased to manage her estate. However, "this approach cannot be taken in relation to conduct or circumstances which have arisen since the death of the testator or about matters which the testator could not have been expected to have had knowledge": Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 at [61].
The evidence given by the Plaintiff, going to the issues, which has not been contradicted, and which I accept, clearly demonstrates that the due and proper administration of the deceased's estate has been delayed by the failure of the Defendants to carry out the duties of executors. Any inertia and delay in having the administration of the estate completed has gone on long enough.
Whilst there is no statutory limitation period on seeking revocation of the grant of Probate, whether the lapse of time should be treated as a bar must be decided in light of all the circumstances. In this case, the making of an order is necessary and proper. There is also utility in making the orders.
The first Defendant does not resist the orders sought by the Plaintiff. Others affected, or who may be affected, with the exception of the second Defendant, consent to those orders. The second Defendant has not appeared to answer the Plaintiff's allegations. He is on notice of the proceedings, as well as on notice of the date for the hearing of the separate questions; he has been afforded the opportunity to appear and to be heard. He has chosen not to do so. Whether through stubbornness, confusion, misunderstanding, fear of costs, or other emotions, he has not taken advantage of the opportunity to participate in the proceedings. He must abide the consequences.
The first and foremost consideration concerns the extraordinary, and apparently, undue, delay that has so far taken place. That delay could not have been in the interests of the estate or any of the beneficiaries, except, perhaps, for the second Defendant. The grant of Probate has become ineffective, and, in all the circumstances, the proper administration of the estate is being prevented, or frustrated. Indeed, little or no progress, or substantive progress, has been made in the administration of the estate since probate was granted.
There is also no point in allowing the Defendants an opportunity to repair, or remedy, any defects in, and to progress promptly with, the administration. The Plaintiff and the first Defendant are no longer able to communicate, meaningfully, with the second Defendant, to work out a practical way to enable the sale of the Baulkham Hills property, and/or to determine the steps to be taken to enable the final distribution of the deceased's estate. The irreducible fact is that the grant of Probate has become inefficient.
The Plaintiff is entitled to prove her claim for revocation of the grant and seek a grant of administration with the copy Will annexed to her, and she has done so. She has established that she is entitled to the relief claimed, and as such the Court may proceed to make final orders on the separate questions. I am satisfied that the continued appointment of the Defendants would not advance the due and proper administration of the deceased's estate.
In addition, I am unable to see any irreparable disadvantage to the estate which would be incurred if the order for revocation were made and administration granted to the Plaintiff, who seems committed to completing the administration of the estate.
In all the circumstances, I consider that it is in the interests of the due administration of the deceased's estate to make an order revoking the grant of Probate and making a fresh grant of administration with the copy Will annexed to the Plaintiff so that she can complete the administration of the deceased's estate.
Part 78 rule 49 of the Supreme Court Rules 1970 (NSW) empowers the Court to order the persons in whose possession, custody or control is the original grant of Probate to deposit the grant in the Probate registry if, relevantly, proceedings for the revocation of the grant have already commenced, on the application of the plaintiff, or of its own motion. In this case, it would be appropriate to make such an order requiring the Defendants to do so.
Costs are in the discretion of the Court. The only fetter on the exercise of that discretion is that it must be exercised judicially and by reference to considerations relevant to the proceedings. The proceedings were necessary as a consequence of the Defendants' conduct, although, since the proceedings commenced, the first Defendant has co-operated with the Plaintiff.
In my view, the Plaintiff's costs of the proceedings should be borne out of the Defendants' shares of the residue of the deceased's estate. Merely because the first Defendant has participated in the proceedings, does not mean that he should be excused from not complying with his obligations as an executor. It will be a matter for the Plaintiff and the other beneficiaries to decide whether they seek to enforce the order for costs against him.
To the extent that there is a difference between the Plaintiff's costs calculated on the ordinary basis, and her costs, calculated on the indemnity basis, the difference should be paid out of the residue estate of the deceased.
At the hearing, the Court stood the balance of the proceedings over to 18 August 2023.
The Court: 1. Orders pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), that the question whether the grant of Probate issued by the Court on 17 November 2000 in respect of the estate of Bridget Agnes Aplitt to the Defendants should be revoked and whether there should be a grant of letters of administration with the copy Will dated 1972 of Bridget Agnes Aplitt annexed, to the Plaintiff, be determined separately from, and prior to, any other question in the proceedings. 2. Orders that the grant of Probate issued by the Court on 17 November 2000 in respect of the estate of Bridget Agnes Aplitt to the Defendants be revoked. 3. Orders that letters of administration with the copy Will dated 1972 of Bridget Agnes Aplitt annexed, be granted to the Plaintiff. 4. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 5. Orders that any requirement for an administration bond be dispensed with. 6. Orders that the first Defendant, the second Defendant, or both Defendants, in whose possession, custody or control, is the original grant of Probate, deliver up, or cause to be delivered up, that grant to the Probate Registry, marked to the attention of the Senior Deputy Registrar in Probate, within 7 days of the service of a copy of these orders and notations upon each of him. 7. Orders that, in the event that the original revoked grant is not produced to the Court, by the Defendants, or either of them, in accordance with these orders and notations, the Senior Deputy Registrar in Probate proceed to completion of the grant of Probate to the Plaintiff, notwithstanding non-compliance with the order in (6) above. 8. Orders that each of the Defendants is, under a continuing obligation to deliver up the revoked grant to the Court. 9. Orders, subject to further order, that the first and second Defendant, by himself, his servants, and agents, be restrained: 1. from using, or dealing with, the grant of Probate made on 17 November 2000, other than by delivery up of the grant to the Court. 2. acting, or purporting to act, as a legal personal representative of the deceased; and 3. holding himself out as entitled to act as a legal personal representative of the deceased. 1. Orders that the Plaintiff serve a copy of these orders on the second Defendant, personally, no later than 10 days after these orders and notations have been taken out and entered. 2. Orders that upon the grant of administration being issued by the Court, the deceased's real estate situated at Baulkham Hills, currently registered in the names of the Defendants as joint tenants, be vested in the name of the Plaintiff as administrator of the estate of the deceased. 3. Orders that the Defendants personally pay the Plaintiff's costs, calculated on the ordinary basis, of these proceedings out of their share of the residuary estate; and that if there is any difference between those costs, and her costs calculated on the indemnity basis, that difference be paid out of the residuary estate of the deceased. 4. Grants liberty to the Plaintiff to apply for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, these orders. 5. Orders that these orders 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: 29 June 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (28)