Tuohey v Tuohey [2002] VSC 180

Tuohey v Tuohey [2002] VSC 180 - VSC 2002 case summary — Zoe

[33]

Anthony Tuohey has deposed to, in his affidavit, the facts and circumstances relating to the administration of his mother's estate and the circumstances in which he made application for a grant of probate of the wills of both his mother, Mercia Tuohey, and his father, Patrick John Tuohey. It is not necessary to refer to those matters at this time. He has deposed that after the house, forming the major property comprising his father's estate, was sold no resolution had been reached concerning the issue of the ownership of the piano and that the plaintiff, Patrick Gerard Tuohey, was not willing to give the piano up, and his sister, Denise, was not willing to relinquish her claim. He has deposed that he was of the view that as an executor he had a moral and legal obligation to ensure that the estate of his mother was finalised in accordance with her wishes and he consulted his solicitor, Mr Dwyer, who advised him that while it was open to commence proceedings in this Court to have the matter resolved, given the value of the piano, which was approximately $750, it would not necessarily be the most appropriate course of action given the likely costs which would be incurred. He has deposed that he was advised by his solicitor that the likely costs of seeking resolution of the matter in the Magistrates' Court would be in the vicinity of $3,000 whereas the estimated costs of a contested application in this Court would be in the vicinity of $25,000. He has deposed that having regard to these matters he instructed his solicitor to issue proceedings in the Magistrates' Court to seek to have the matter relating to the piano resolved. Those proceedings were issued in October 2000. He has deposed that whereas he remains of the firm view that the piano was intended by his grandfather and his father and mother to pass to Denise Rafter that, in his capacity as executor, he has made it clear that his priority has been to finalise the estates as expeditiously and inexpensively as possible. He has deposed that he sought to identify and access a process by which the dispute in relation to the piano could be resolved and had the matter been allowed to proceed to arbitration in the Melbourne Magistrates' Court, the issue of the ownership of the piano could have been resolved and both estates could in all likelihood have been finalised in an inexpensive manner.

[36]

In an affidavit sworn by Phillip Dwyer, a barrister and solicitor of this Court, and the solicitor acting on behalf of the defendant, Anthony Tuohey, in these proceedings, he has deposed that in or about June 1982, in his capacity as a partner of Coady Dwyer & Associates, he was approached by Mercia Tuohey and Patrick John Tuohey, the mother and father, and requested by them to prepare their wills. He has deposed that they both attended his office together and he took instructions from them jointly. He has deposed that in the course of receiving instructions from them both, Mercia Tuohey made it clear that she wanted to include specific bequests in her will in relation to her gold necklet marked "Mizpah" and her Rick Lipp piano which were both to pass to her daughter, Denise. He has deposed that Mercia Tuohey gave those specific instructions to him in the presence of her husband, Patrick John Tuohey, who made no comment in relation to the specific bequests. Dwyer has deposed that acting in accordance with the instructions that he had received from each of them he prepared wills for Mercia Tuohey and John Patrick Tuohey and sent the wills to them for their approval. He has deposed that the wills were signed by Mercia Tuohey and Patrick John Tuohey on 11 July 1982 in the presence of witnesses, Eileen A. Costigan and Winifred M. Costigan. He has deposed that both wills were executed at the same time before the same witnesses and returned to him for safe keeping. Dwyer has further deposed that following the death of Mercia Tuohey and on ascertaining that the estate was simple and straightforward and it was not necessary to obtain probate to collect the assets, he wrote to Patrick John Tuohey care of the Airlie Special Accommodation Home, at which he was then residing, sending to him documents to be signed by him and returned, being a withdrawal from the Commonwealth bank passbook account of Mercia Tuohey and an application by him as surviving proprietor of their home, for it to be transferred into his name. He has deposed that the letter was returned to which there was attached a "with compliments" card with the name of the plaintiff, John Gerard Tuohey, printed on it. In his affidavit Dwyer deposed to the facts set out in paragraph 4 of this judgment, that on 7 November 1996 he sent to Patrick John Tuohey a statement of position of the estate of Mercia Tuohey together with a cheque for $3,246 which was accompanied by a letter containing that set out in that paragraph.

[38]

Dwyer has deposed in his affidavit that the assets of the estate of Patrick John Tuohey were collected and that the family home was sold on 28 February 2000. He has deposed that he prepared a final account being an Account Sales and Statement of Position, that he sent the same to the defendant, Anthony Tuohey, on 1 March 2000 and on his approval cheques for $55,000 were sent to each of the four beneficiaries by way of an interim distribution with a copy of the Account Sales and Statement of Position. Dwyer deposed that he understood that the defendant had not proposed to seek to charge any executor's commission in respect of the administration of the estates of his parents and that the sum of $4,788.11 was retained in the estate of Patrick John Tuohey pending "finalisation of the outstanding matter being the piano". Dwyer has deposed to the fact that as the plaintiff, Patrick Gerard Tuohey, and Denise Rafton were equally insistent upon their respective positions and given the dispute which had developed in relation to the piano's ownership, on instructions of the defendant a Complaint was issued in the Magistrates' Court on 23 October 2000. He has expressed his view that the only other choice would have been to bring an application to this Court under Order 54, which he has deposed was considered, but that having regard to the value of the piano, estimated to be between $750 and $1,000 that course could not be justified. He has deposed that as to the Complaint filed in the Magistrates' Court, the defence initially taken by the plaintiff, Patrick Gerard Tuohey, in the proceedings, was, that at no material time was the testatrix, Mercia Tuohey, the sole beneficial owner of the piano, that the piano was gifted to Patrick Gerard Tuohey by his parents subsequent to the date of the will and that such facts were relayed both verbally and in writing to the plaintiff in those proceedings, Anthony Tuohey, on a number of occasions. Dwyer has exhibited the undated amended defence of the plaintiff, Patrick Gerard Tuohey, to the proceedings in the Magistrates' Court. To his affidavit, Dwyer has exhibited an application made by the plaintiff, Patrick Gerard Tuohey, in the Magistrates' Court proceedings which was filed on 27 July 2001 whereby Patrick Gerard Tuohey sought an order that those proceedings be stayed pending the determination of the present proceedings and a further order that Anthony Joseph Tuohey, the plaintiff, to those proceedings, personally or alternatively Denise Rafton provide security for the costs of the Magistrates' Court proceedings.

[69]

On behalf of the defendant it was submitted that in this proceeding the question of the ownership and the right to possession of the piano can not and should not be determined. This matter was not disputed or put in issue on behalf of the plaintiff, Patrick Gerard Tuohey. It was submitted on behalf of the defendant that in the administration of the estate of Mercia Tuohey, on the question having arisen, as to the ownership of the piano, that is whether it was owned by Mercia Tuohey at her death and given by her will to Denise Rafton or whether at that time it was owned by the plaintiff, Patrick Gerard Tuohey, that having regard to the value of the piano, the manner and forum in which such issues could best be determined, were in the proceedings as issued by the defendant in the Magistrates' Court. It was submitted that by such proceedings the defendant, Anthony Tuohey, as executor of the will of the deceased Mercia Tuohey and as trustee of her estate, was doing no more than performing his duty to "get in" the assets of the estate in circumstances where Patrick Gerard Tuohey resisted the endeavours of Anthony Tuohey to have him deliver up possession of the piano to him. It was submitted on the material before the Court that it could not be said that the proceedings in the Magistrates' Court were of a nature that could be classified as being fruitless and, in such circumstances, it should not be held that by instituting and prosecuting such proceedings the defendant, Anthony Tuohey, was unfit to be the executor of the will and/or trustee of the estate of Mercia Tuohey. It was submitted that, when, in the circumstances of this case, regard is had to the amount or size of assets of the estate of Mercia Tuohey, the fact that Anthony Tuohey had not obtained an indemnity from Denise Rafton for the costs of the Magistrates' Court proceedings, before issuing the proceedings, and he may not have been obliged to issue such proceedings, it should not be held that by issuing and prosecuting such proceedings he is unfit to be the executor of the will and/or trustee of the estate of Mercia Tuohey. It was submitted that this was particularly so when, as it now appears in this proceeding, Denise Rafton has sworn that she is prepared to indemnify Anthony Tuohey against the costs incurred by him in the conduct of such proceedings. It was submitted on behalf of Anthony Tuohey that, as the personal representative of Mercia Tuohey, there was no obligation on him to obtain the consent of the beneficiaries of either estate before issuing the proceedings. Although counsel for the plaintiff, John Gerard Tuohey, accepted the proposition that, as a matter of principle, a personal representative of an estate did not need to obtain the consent of beneficiaries before bringing legal proceedings relevant to the estate, she submitted as previously referred to that, in the circumstances of this case, consent should have been obtained by the defendant, Anthony Tuohey, before commencing the Magistrates' Court proceedings.

[70]

It was further submitted on behalf of the defendant, Anthony Tuohey, that, on the evidence before this Court, it was established that from the estate of Mercia Tuohey there had come into the hands of Patrick John Tuohey, the executor of her estate as named in her will, the total sum of $5,342.32 which after the payment of funeral expenses, fees and legal expenses there remained $3,204.32 with respect to which his solicitors, Dwyer & Co, accounted to him. It was submitted that, as is now apparent, there then existed a dispute concerning the ownership of and right to possession of the piano, which gave rise to a contingent liability in the estate of Mercia Tuohey in relation to costs and expenses to resolve or have determined that dispute. It was submitted that in such circumstances that have occurred, the obligation to resolve or have determined that dispute passed to Anthony Tuohey on him obtaining a grant of probate of the will of each of Mercia Tuohey and Patrick John Tuohey and, when considering the fact that the dispute was between siblings, it was reasonable for Anthony Tuohey to not distribute this sum but retain it in the event that he was entitled to be indemnified by the estate of Patrick John Tuohey against costs incurred by him in the Magistrates' Court proceedings. It was submitted that Anthony Tuohey acted in good faith and for real or genuine reasons in not distributing this sum, that it did not cause him to be in a position of conflict as between the two estates and, further, it gave rise to no matter which should cause the Court to hold that Anthony Tuohey is unfit to be the executor and/or trustee of the will or estate of either or both Mercia Tuohey or Patrick John Tuohey. It was submitted that on the material before this Court the Court should not make an order as sought by Patrick Gerard Tuohey removing Anthony Tuohey from his position as executor of the will and/or trustee of the estate of either or both of Mercia Tuohey and Patrick John Tuohey. It was submitted that, in the circumstances as revealed by the evidence in this case, Anthony Tuohey had no other real or reasonable choice, but to issue the proceedings in the Magistrates' Court, that he did so for bona fide reasons, and in good faith, and that by selecting such a forum to have the dispute determined he chose the least expensive forum in which the dispute could be determined and that, having regard to all the circumstances, the proceedings of the plaintiff should be dismissed.

[87]

Following the death of Mercia Tuohey, it was the solicitors for Patrick John Tuohey, the executor named in her will, who attended to the administration of the simple estate on his behalf and after collecting the small amount held in bank accounts by Mercia Tuohey and attending to the meeting of expenses including the payment of the account of the funeral director and deducting $300.00 for costs accounted to Patrick John Tuohey for the sum of $3,204.32. At that time, as appears from the letter of the solicitors to Patrick John Tuohey, it was not known by them, as solicitors for Patrick John Tuohey, that Patrick Gerard Tuohey claimed absolute ownership of the piano and the right to possession of the same, although from the evidence now before the Court it appears that such was the position at the date of the death of Mercia Tuohey on 19 August 1996. It further appears from evidence before this Court that Patrick John Tuohey received from his solicitors their letter dated 7 November 1996 which was written within the "executors year" that he had on 29 March 1996 made the aforesaid declaration in the presence of Helen Gartland, that he had given the piano to Patrick Gerard Tuohey. From the letter of the solicitors it does not appear that they were aware of any fact which should cause the disposition of the piano as provided by the will of Mercia Tuohey not being carried out. The circumstances in which Patrick John Tuohey made that declaration are not apparent on the evidence before this Court. However, on the face of the declaration, the will of the deceased Mercia Tuohey, and the letter of the solicitors to Patrick John Tuohey, it ought to have been reasonably understood by him that there existed a reasonable likelihood that there would need to be resolved the issue as to who owned the piano and whether the will of Mercia Tuohey effected a disposition of it to Denise Rafton. In the circumstances and having regard to what has occurred, as is apparent from the evidence in this case, it ought to have been appreciated by Patrick John Tuohey that the resolution of such matter was not likely to be simple, and that it was likely to cause him, as the executor named in the will of Mercia Tuohey, to incur costs. In such circumstances there existed a contingent liability in the estate of Mercia Tuohey to meet the costs which were likely to be incurred in having this matter either resolved or determined in proceedings undertaken by Patrick John Tuohey, which would probably have necessitated further costs being expended to obtain a grant of Probate.

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