Van Der Made v Crow

Correspondence and procedural history

1. It is evident that there had been at least some correspondence addressing issues regarding the plaintiff's occupancy of the Unit prior to the commencement of these proceedings. Without being exhaustive, I note that: 1. on 21 August 2023, Margaret sent an email to the plaintiff concerning payment of outgoings on the Unit; 2. on 5 December 2023, a strata manager for the Unit sent a letter to the plaintiff concerning alleged breaches of certain strata by-laws; and 3. on 6 June 2024, the defendant's solicitor, Mr Pogson, sent an email to the plaintiff's solicitor, Mr Bloom, informing him that probate had been granted and the defendant was proposing to take steps to sell the Unit, in order to progress the administration of the estate. It was foreshadowed that the plaintiff's cooperation would be required for the defendant to take such steps.
2. On 17 June 2024, two days prior to commencing these proceedings, the plaintiff affirmed an affidavit in chief in support of her summons.
3. On the morning of 19 June 2024, Mr Pogson sent an email to Mr Bloom noting that the plaintiff had previously ignored requests to either vacate the Unit or make it available for inspection by a selling agent. Mr Pogson foreshadowed that, in the absence of consent, the defendant proposed to commence proceedings to obtain a writ of possession, and sought instructions regarding the terms on which the plaintiff would agree to vacate the Unit.
4. Later that day, the plaintiff commenced these proceedings by the summons, seeking the following relief: (1) a family provision order for provision out of the deceased's estate; (2) an order that the defendant be restrained from distributing, or taking steps to distribute, the deceased's estate; (3) a declaration that the Will is invalid; (4) a declaration that the deceased lacked capacity at the time that he made the Will; and (5), by prayers 5 and 6, costs and such further or other orders as the Court considers appropriate. The plaintiff's affidavit was filed on the same day.
5. On 24 June 2024, Mr Bloom responded to Mr Pogson's email, noting that the defendant was at liberty to seek a writ of possession, to which his client would object. He further noted that the Unit was now subject to a family provision claim.
6. The summons was first returnable on 25 July 2024. On that occasion, the plaintiff was given leave to amend her summons by deleting prayers 3 and 4, which challenged the validity of the Will. Thus, in her amended summons, the only substantial relief sought by the plaintiff is based upon her family provision claim.
7. Other orders made on 25 July 2024 included directions for the filing and serving of evidence, referral of the matter to a court-annexed mediation for a half day on 29 November 2024, and consequential orders standing the matter over to before the Registrar in Probate on 12 December 2024.
8. Between 1 and 15 August 2024, there was further correspondence between the parties. That correspondence primarily related to requests by the defendant to be permitted access to inspect the condition of the Unit, following a compliance notice being issued by the strata manager which detailed complaints against the plaintiff of excessive noise and failure to supervise a pet.
9. One of the items of correspondence is an email from Mr Pogson to Mr Bloom dated 6 August 2024, to which Mr Bloom responded the following day. The responses were embedded in the email and highlighted in red. Relevantly, Mr Pogson noted that he was yet to receive responses to his emails of 19 June (9.25 am), 1 August (2.28 pm) and 1 August (5.31 pm), and Mr Bloom indicated that the plaintiff had informed him that she refuses anyone from accessing the Unit unless it is through either a warrant and/or a court order.
10. The above information has been primarily drawn from two affidavits of the defendant, both affirmed on 21 August 2024. The first affidavit is what is known as the "administrator's affidavit" (see Practice Note SC Eq 7 at [18]), which lists relevant details regarding the estate and otherwise replies to the plaintiff's affidavit. The second affidavit addressed the issue of access to the Unit and was evidently affirmed in support of an imminent application to the Court for the granting of access.

Notice of motion

1. On 22 August 2024, the defendant filed a notice of motion seeking the following access orders: 1. An order that the plaintiff grant access to the defendant to [X]/[XX] Fern Street, Clovelly NSW 2031 (the Apartment) for the purposes of: a. Taking an inventory of estate property; b. Recording the condition of the Apartment or any other estate property; c. Removing any estate property about which there is no dispute as to the ownership or possession. 2. An order that the plaintiff is to grant to the defendant any other access to the Apartment upon 48 hours' notice for the purposes of the defendant fulfilling his duties and obligations as the executor of the estate of the late Stewart McLean Crow. 3. Any further or other order that this Honourable Court deems necessary. 4. The plaintiff to pay the defendant's costs.
2. The notice of motion was listed for directions before the Registrar in Probate on 29 August 2024.
3. On 27 August 2024 (after 4 pm), Mr Bloom filed with the Court a notice of intention of ceasing to act for the plaintiff. Mr Bloom subsequently sent an email to the Registrar in Probate drawing her attention to that fact and asking whether he could expedite the filing of a notice of ceasing to act. The Registrar responded later that afternoon, noting that it was not the practice of the Court to expedite (i.e. abridge) the time for a solicitor ceasing to act, and accordingly noted that Mr Bloom would be required to appear at the listing.
4. On 29 August 2024, Mr Bloom appeared for the plaintiff and Mr Parish appeared for the defendant. On that occasion, the Registrar listed the notice of motion for hearing before me on 6 September 2024.
5. On 29 August 2024, Mr Bloom emailed Mr Pogson giving contact details for the plaintiff, noting that he had not received either written or verbal communication from her since the directions hearing on 25 July 2024. (I pause to note that I infer that the content of Mr Bloom's response in the earlier email of 6 August 2024 was based on instructions from the plaintiff prior to 25 July 2024.)
6. On 4 September 2024, Mr Bloom filed a notice of ceasing to act.

Initial listing

1. On 6 September 2024, the matter was listed before me, in accordance with the Registrar's order. Mr Parish appeared for the defendant as the applicant on the notice of motion. There was no appearance on behalf of the plaintiff. The matter was called outside the Court and there was still no appearance.
2. In the circumstances, I requested that Mr Parish demonstrate adequate proof of service of the notice of motion, and he provided the Court with certain materials to attempt to establish that the notice of motion and affidavit in support had been served on the plaintiff.
3. In those materials was an email from a solicitor of the firm acting for the defendant to the plaintiff (copying Mr Bloom), sent on 3 September 2024 at 12.22 pm. In that email was enclosed the notice of motion and affidavit in support, as well as a letter from Mr Pogson which indicated that the motion was listed for hearing on 6 September 2024 at 9.30 am. The email also states that a copy of the letter and enclosures were sent to the plaintiff that day by express post.
4. Given the timing of the email, I was not satisfied that the notice of motion was served at least 3 days before the hearing, as required by r 18.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
5. In those circumstances, the hearing of the notice of motion was adjourned and the matter was stood over to 2 pm today, 27 September 2024.

Hearing of the motion

1. Mr Parish has appeared today for the defendant. When the matter was called there was no appearance by or on behalf of the plaintiff. The matter was also called outside the Court and there was no appearance to that call.
2. Mr Parish relied upon evidence both in respect of service of the plaintiff and substantively in support of the notice of motion. He sought to prove service by three affidavits.
3. The first affidavit is an affidavit of the defendant affirmed 4 September 2024. It is not necessary to detail the content of that affidavit because it primarily related to proof of service of the notice of motion for the listing on 6 September 2024, and events have moved on since then.
4. The second affidavit is that of Moira Lucy Moss, a solicitor of the firm acting for the defendant, affirmed 17 September 2024. The substance of that affidavit goes toward demonstrating the provision of a letter enclosing the notice of motion and other relevant court documents to the plaintiff on 10 September 2024, both by email and post (although there was evidence that the posted letter had been awaiting collection at Clovelly Post Office since 12 September). In the letter, Mr Pogson set out the orders made on 6 September 2024 and the details for the hearing today. In her affidavit, Ms Moss also states that on 17 September 2024 she called the plaintiff's mobile phone number, left a voicemail message and also sent a text message to the plaintiff's phone number, which noted the attempts to provide her with court documents and the timing of today's listing. The screenshot of the text message indicates that it had been successfully delivered.
5. The third affidavit is an affidavit of the defendant affirmed 25 September 2024, in which he indicates that on 11 September 2024 he personally delivered a copy of Mr Pogson's letter dated 10 September 2024, together with its enclosures, to the plaintiff's mailbox at the Unit.
6. On the hearing of the motion today, Mr Parish has tendered two further documents. The first (marked Exhibit A1) is a text message from Ms Moss to the plaintiff, sent at 9.09 am this morning, which notes that she had called the plaintiff, which call went unanswered, and reminds her that the matter was listed today at 2.00 pm. It further notes that the relevant court documents had been sent to the plaintiff by various means. The second (marked as Exhibit A2) is a tracking document issued by Australia Post, which indicates that, as at today at 8.11 am, the express post materials were awaiting collection at "Albury Post Shop". From that, Mr Parish asked me to infer, and I do infer, that what occurred was that the materials that had been awaiting collection at Clovelly Post Office had been, by result of the lapse of time in which they had not been collected, returned to the Albury Post Office.
7. In the above circumstances, I am well satisfied that the plaintiff has been given notice of the further listing of this matter for hearing today.

Evidence

1. In support of the notice of motion, Mr Parish relied upon the two affidavits of the defendant, both affirmed 21 August 2024, to which I have referred above.
2. Mr Parish did not object to me having regard to the plaintiff's affidavit in chief, at least for the purpose of understanding the context of the plaintiff's claim and her contentions in the proceedings, as distinct from constituting evidence which proves or establishes the matters asserted in the affidavit.
3. In her affidavit, the plaintiff relevantly contends as follows: 7. … We were in a relationship for over 20 years. We lived together at three (3) separate properties around Eastern Suburbs. 8. … The deceased owned a property for approximately the last 9 years prior to his death and provided accommodation for me and would also pay all the bills. … 26. … I was the homemaker in the relationship, I would amongst other things cook and clean for him; help him get dressed every single day while he was living at home; I would also regularly take him to medical appointments. I would also do all the shopping. … 29. … The deceased maintained me up to the date of his death as I was living in his apartment, and I am currently living in his apartment. He was also paying for my living expenses shortly before he died but stopped paying for my expenses when he no longer had personal control over his finances. … 32. … About 1 year prior to the death of the deceased, he went to hospital for diabetes related complications including severe obesity, and immobility. He then needed to live in wheelchair access accommodation as he could no longer live in our apartment. When he started living in Mascot, his sister Margaret Crow, and his brother Ian Crow began to control most aspects of the deceased life [sic]. They would make it difficult for me to see the deceased, and they were aggressive to me and would restrict my access, and would often not allow me to enter the Mascot apartment. Whenever I would call the deceased his sister Margaret Crow would answer the telephone and not allow me to speak to the deceased. The deceased sister [sic] and brother were usually at his apartment and were very aggressive and rude to me so that I was too scared to go there. Approximately 2 weeks prior to his death, he was admitted to hospital and neither his sister or brother informed me of his admission.
4. The plaintiff discloses in her affidavit that she is the registered proprietor of a property at Glenwood, said to be valued at approximately $800,000. However, the plaintiff says that she holds that property on trust for her mother, and she has no equitable interest in the property.
5. Further, in one of the annexures to the plaintiff's affidavit, there is a letter from a consultant psychiatrist in which it is said that the plaintiff suffers from significant mental health issues including anxiety disorder, depressive disorder and complex post‑traumatic disorder.

Power of an executor to gain access to estate property

1. Thus far, the defendant has attempted to achieve access to the Unit by means of communication with the plaintiff's solicitor, until he ceased to act for her. The evidence demonstrates that access has been refused. Indeed, the material to which I have referred above indicates that the plaintiff will not grant access to the Unit without either a warrant or form of court order.
2. I should make it abundantly clear that there is no suggestion that Mr Bloom himself, while he acted for the plaintiff, had in any way sought to impede access or otherwise acted inappropriately.
3. In the above circumstances, the question arises as to what entitlement the defendant has to obtain the orders which he seeks on the motion. The answer to that question requires an understanding of the power of an executor to access estate property in the face of opposition from a person who is occupying that property.
4. Estates are to be administered according to law. The powers and duties of an executor to administer an estate are sourced in the Will of the deceased, statute and the general law.
5. It is first appropriate to turn to the terms of the deceased's Will to examine what powers are conferred on the defendant as executor.

Powers under the Will

1. The Will appoints the defendant as executor and trustee of the deceased's estate: see cl 3.
2. Clauses 6 and 7 give direction to make requests of the deceased's "executor".
3. Clause 8 relevantly provides for the "executor and trustee" to sell, call in or convert into money any part of the deceased's estate, and pay all duties, debts, funeral and testamentary expenses and any other costs, fees or expenses associated with the deceased's death or the administration of the estate: see cl 8(a).
4. Significantly, cl 9 lists various powers which the deceased's "trustees" may exercise in their discretion. Whilst the prefacing words in cl 9 only refer to the "trustees", as distinct from the "executor", it is not evident to me that the proper construction of cl 9 is such that the deceased intended to give the defendant the powers listed in that clause only in his capacity as trustee, not executor. The fact that no post-administration trusts are expressly created under the Will (i.e. leaving aside the cl 8(a) "trust" for sale and conversion) supports that view.
5. Notably, there is no express power in cl 9 which specifically addresses the executor having direct access to the deceased's property, including the Unit, to inspect its condition or otherwise take an inventory of items within the property.
6. Relevantly, cl 9(a) provides: 9. My trustees may in their discretion: (a) Exercise any powers given to them by law and have all the powers, authorities and discretions of a natural person, including but not limited to the power to invest and change investments freely as if they were beneficially entitled to them; …
7. Thus, cl 9(a) indicates that, on the construction preferred above, the deceased had expressly contemplated that the defendant may exercise any powers given to him by law and have all the powers, authorities and discretions of a natural person, for the purposes of administering the estate. Self‑evidently, a natural person may generally have access to or inspect their own property, unless they have bargained away such rights by, for example, leasing the property to a tenant. In that case, any rights of inspection or access will be regulated under the lease agreement or otherwise under general law or relevant statutory provisions.

Powers under general law

1. The principal tasks of an executor or administrator at general law include ascertaining the assets of the deceased and getting in those assets: see e.g. Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508 at [42] per Campbell J (as his Honour then was).
2. That general law duty has been generally understood to be complemented, by necessary implication, with a power to gain access to estate property to facilitate the identification and securing of the deceased's assets.
3. Generally, legal personal representatives have the same property in the estate devolving upon them that the deceased had when living. Consequently, they have the same power to bring actions in that respect: see Alexander Learmonth KC et al, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (22nd ed, 2023, Sweet & Maxwell) (WMS) at [46-08].
4. Even at a time before the Land Transfer Act 1897 (UK), when the deceased's real property did not vest in their legal personal representative, the representative had power, within a convenient time after the deceased's death or the grant of administration, to enter the deceased's house in order to remove the personal goods of the deceased, provided the representative did so without violence: WMS at [46-12]. However, that power is arguably of less significance nowadays, given that the deceased's real property vests in their legal personal representative: s 44(1) Probate and Administration Act 1898 (NSW).
5. The existence of an available power for a legal personal representative to seek access to property must be distinguished from the practical ability of the representative to exercise that power.
6. Historically, as a practical matter, if a representative could not take possession of the effects without force, the representative had to desist, and resort to the right to bring an action seeking possession: WMS at [46-12], citing Wentworth's Office of Executor (14th ed, 1832) at 81, 202.
7. Where a party proceeds curially to obtain possession of or access to property, on one view, that is seen as an election against resorting to self-help remedies and physically attempting to obtain possession, at least until the court proceedings have been determined: see e.g. Argyle Art Centre Pty Ltd v Argyle Bond & Free Stores Co Pty Ltd [1976] 1 NSWLR 377 at 386C-F per Needham J.
8. Should there be any doubt as to whether the defendant is empowered under the provisions of cl 9 of the Will or the general law to access the Unit for his stated purposes, the Court has power to make orders to direct access to and inspection of the property.

The Court's powers to order inspection of property

1. Without being exhaustive, it may be noted that, for the purposes of enabling the proper determination of any matter in question in any proceedings, the Court may make orders for various matters, including the inspection of any property and the making of any observation of any property: r 23.8(1) UCPR. Further, if an order for inspection of property is made, the Court may authorise any person to enter any land, or to do any other thing, for the purposes of getting access to the property: r 23.8(2) UCPR.
2. I pause to note that the Court is not to make an order under r 23.8 of the UCPR unless it is satisfied that sufficient relief is not available under s 169 of the Evidence Act 1995 (NSW) (Evidence Act): r 23.8(4) UCPR.
3. Section 169 of the Evidence Act falls within the provisions of Pt 4.6, dealing with ancillary provisions. In particular, Div 1 deals with requests to produce documents or call witnesses.
4. It is not evident to me that the provisions of s 169 of the Evidence Act have any application to a matter such as this. I raised the question with Mr Parish and he did not suggest that it had any such application.
5. Accordingly, r 23.8 of the UCPR appears to be an available power under which to order the relief sought by the defendant. It may be exercised for the purpose of enabling the proper determination of any matter in question in any proceedings. One of the matters in question in these proceedings is the nature and extent of the deceased's estate (indeed, that is a fundamental question in any family provision proceedings). Granting the relief sought by the defendant will enable the proper determination of that matter.
6. In addition, I note that in proceedings brought under r 54.3 of the UCPR, the Court may make orders directing any act to be done in the administration of an estate that the Supreme Court could order to be done if the estate were being administered under the direction of the Court: see r 54.3(4)(b) UCPR.

Determination

1. The plaintiff is not given any right to occupy the Unit under the terms of the Will, let alone any right of exclusive occupation. In the absence of any specific evidence bearing upon the circumstances by which the plaintiff came to reside in the Unit, and having regard to the contentions of the plaintiff that I have outlined earlier, the position appears to be that the plaintiff resided in the Unit for some time up until the deceased's death. I infer that the arrangement likely resembled an implied revocable licence from the deceased. If that be the position, which prima facie appears to be the case, technically any such licence would have been automatically terminated by the death of the deceased. Thus, from the date of the deceased's death, on termination of the licence, the plaintiff essentially became a trespasser in the estate property: see e.g. Public Trustee v Bellotti (1986) 4 BPR 9196 at 9203 per Cohen J, citing Terunnanse v Terunnanse [1968] AC 1086 at 1095 per Lord Devlin for the Board.
2. In her summons, the plaintiff has not expressly sought any right to reside in the Unit, nor has she sought (as far as I can ascertain) any interim relief to be able to remain in the Unit, whether pursuant to s 62 of the Succession Act 2006 (NSW) or otherwise.
3. There is no express indication in the evidence as to why the plaintiff has refused to grant the defendant access to the Unit. I do not know, for example, whether there is any aspect of the plaintiff's health or mental health issues which may provide some context for why she has acted in the manner in which she has.
4. That all being said, it is not strictly necessary for me to make any particular finding at this stage about the plaintiff's right (if any) to remain in the Unit.
5. In any event, an executor has a statutory power to sell assets of the estate for the purposes of administration, whether or not any such power is conferred under the Will of the deceased: see s 46 Probate and Administration Act 1898 (NSW); s 153(1)(a) Conveyancing Act 1919 (NSW).
6. It is evident from the evidence that there is likely an imperative for the Unit to be sold for the purposes of administration. However, I do not at this stage need to specifically make a determination about that.
7. In a context in which the plaintiff has resisted access to the estate property, the mere existence of relevant powers of access to property is practically insufficient for the executor's purposes.
8. Commendably and appropriately, the defendant has not resorted to self-help remedies to exercise rights of access to the Unit and estate property. Consistent with the above principles and orderly conduct, the defendant seeks not a declaration of rights of access but enforceable orders directing access to be given and permitting access.
9. In light of all of the above, I consider there is ample basis to grant the access orders sought by the defendant for the purposes stated in his notice of motion, which I propose to make. Rule 23.8 of the UCPR is the appropriate source in this case to underpin the defendant's enforceable rights of access.
10. Whilst the orders that I propose to make will have the usual binding effect of court orders, I am nonetheless mindful that, in the context of estate claims and in particular in circumstances akin to the present, often a degree of sensitivity will need to be exercised in implementing court orders.
11. In that regard, I have no reason whatsoever to doubt that the defendant's solicitor will act appropriately in attempting to carry out the orders for access that I propose to make. However, mindful of the context in which the motion has been brought and the plaintiff's staunch resistance to allowing access to date, I propose to make an additional order that will allow for consequential or ancillary orders, for the purpose of further giving effect to or supplementing the access orders, if need be.

Costs

1. The defendant asks for the costs of and incidental to the notice of motion. In light of all of the above circumstances, that appears to me to be an appropriate order to make.
2. I note that, ordinarily, unless the Court orders otherwise, the costs of interlocutory applications do not become payable until the conclusion of the proceedings: r 42.7 UCPR. Mr Parish has not sought an order otherwise.

Orders

1. The orders of the Court are as follows: 1. Orders that the plaintiff grant access to the defendant to X/XX Fern Street, Clovelly NSW 2031 (the Apartment) for the purposes of: 1. taking an inventory of estate property; 2. recording the condition of the Apartment or any other estate property; and 3. removing any estate property about which there is no dispute as to the ownership or possession. 1. Orders, subject to Order 3, that the defendant and or his solicitor is authorised to enter the Apartment for the purpose of getting access to the Apartment and non-disputed estate property. 2. Orders that the plaintiff is to grant to the defendant and or his solicitor any other access to the Apartment upon 48 hours' notice to the plaintiff (which notice may be given by email or text to the plaintiff) for the purposes of the access permitted under Orders 1 and 2, and otherwise for the defendant fulfilling his duties and obligations as the executor of the estate of the late Stewart McLean Crow. 3. Grants liberty to any party to apply to Meek J for consequential or ancillary orders for the purposes of, or with respect to, or giving effect to and implementing these orders. 4. Orders that the plaintiff pay the defendant's costs of and incidental to the defendant's Notice of Motion filed on 22 August 2024. 5. Notes pursuant to r 42.7 UCPR that the costs the subject of Order 5 may be assessed but will not become payable until the conclusion of the proceedings.

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