146No reseal of the Fijian probate is possible here. Probate and Administration Act s 107 allows for the reseal in New South Wales of probates and letters of administration granted in "Her Majesty's dominions" or the United Kingdom, upon production of the original probate and if necessary upon giving security. But Fiji is not a dominion and has been suspended from the Commonwealth of Nations: Mason and Handler at [5257.2]).
147But even without a reseal, the appointment of executors in New South Wales in respect of the deceased's property found in this State would be a common form of ancillary administration of Bhagwan's estate. If an ancillary appointment as executor may ultimately be made in this jurisdiction to administer local assets, then the appointment of an executor ad colligenda bona is reasonably arguable. And even if no in personam jurisdiction over the executor can be established, the Court may in its inherent jurisdiction still act in relation to any assets of the estate within the jurisdiction, to protect them from deprivation or loss: Nygh's Conflict of Laws in Australia, Lexis Nexis Australia 2010 at [37.24] ("Nygh's Conflict of Laws"). But in a case such as this where probate has been granted abroad, the Court's in personam jurisdiction over the executor is limited to the assets within the jurisdiction: Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) ("Permanent Trustee Co") 122 CLR 338.
148The evidence supports the following inferences: that substantial assets of Bhagwan's estate, assets of the order of A$700,000, were in this jurisdiction at the time of his death; and that a considerable portion of those assets appears to have been moved to Fiji leaving some $20,000 or so within the jurisdiction. But there is still considerable uncertainty as to exactly what part of Bhagwan's estate has been moved out of the jurisdiction, and by whom and under what claim of right. The defendants did not give a satisfactory account of any of these matters on the motion. It is quite open to the plaintiff in these circumstances, as one of her claims for relief, to seek an ancillary appointment of an executor of Bhagwan's estate in New South Wales.
149Who should take an ancillary appointment in New South Wales and on what terms may well be matters for contest at a final hearing of these proceedings. The plaintiff is only one of the three executors of Bhagwan's will. A single executor may seek such an appointment: Mason and Handler [1201.1]. Ordinarily the consent of the other executors would be required and they should join as co-applicants for the ancillary grant in this jurisdiction. But the plaintiff has joined the other executors as defendants, so they are present in the proceedings in any event.
150Looking ahead for a moment to considering choice of law issues; New South Wales law will govern the question of the local appointment of executors in this jurisdiction. Moreover, New South Wales law, as the lex fori will govern all aspects of the administration of the parts of Bhagwan's estate being administered pursuant to a grant of probate within this jurisdiction: Permanent Trustee at 342-343. This conclusion in my view has an important influence upon the ultimate application of the Voth test on the defendants' motion.
151The plaintiff's argument for the appointment of a local executor also draws attention to a fundamental contest between the parties about the administration of the estate in Fiji. The defendants argued that all aspects of the administration of the estate should take place in Fiji and that it was up to the executors in Fiji to bring proceedings on behalf of the estate to collect what remained of the deceased's property in New South Wales. And they said that until that happened and until the deceased's estate was fully administered in Fiji, the plaintiff had no basis as the beneficiary of the trust to bring proceedings for relief against her co-trustees in this jurisdiction, because she cannot yet establish that the executors have finished their administration of the estate and become trustees.
152This may possibly answer the plaintiff's claim as beneficiary of the trust against Nitin and Vinod. On that claim the plaintiff will in due course have to establish in these proceedings that the defendants, Nitin and Vinod, do hold some property as trustees of such trust. The plaintiff may be able to do that at trial. That is not something that has to be decided on this motion. But this argument of the defendants at least draws attention to an important dividing line between the plaintiff's probate claim and her trust claim against Nitin and Vinod. This dividing line will become important when considering the Voth test with respect to her trust claim against Nitin and Vinod.
153Executors to Trustees in Fiji. Probate of Bhagwan's will having been granted in Fiji and the administration of his estate having started there, the plaintiff did not vigorously contest on the defendants' stay motion the proposition that the administration of his estate should be completed in Fiji. Several years of estate accounts have been filed or prepared for filing in Fiji. The estate accounts filed in Fiji so far certainly show a considerable number of assets being administered in Fiji. The plaintiff acknowledged that the principal grant of probate was in Fiji, but contended that an ancillary grant in New South Wales was nevertheless appropriate for the purposes of ensuring that the New South Wales assets were collected and property accounted for. Moreover even in Fiji, the plaintiff contended, the executors would quite soon hold the assets they had there collected no longer as executors of the estate but as trustees under the trust, if that transformation had not already occurred.
154No party tendered any evidence on the motion as to the legal principles under the law of Fiji governing the administration of assets issues in Fiji and governing when the administration is complete so that the executors hold property only as trustees. So the Court should presume the law of Fiji on this issue is the same as the law in New South Wales: Murakami at [78].
155The law on the subject may be shortly stated. A person acts as executor while performing executorial duties but as soon as all of those duties are performed he or she may become a trustee: Pagels v MacDonald (1936) 54 CLR 519 at 526; and Easterbrook v Young (1977) 136 CLR 308 at 320.
156The personal representative may change from executor to trustee in a number of common situations. For example, when the same person is appointed as an executor and all that remains outstanding in the administration of the estate is the transfer of the assets to the beneficiaries, then the executor holds as a trustee: Re McPhail (decd) [1971] VR 534 at 538; In the Estate of Dunn (decd) [1963] VR 165 at 166 ("Dunn"); Stokes v Churchill; Estate of Fryer (1994) NSW ConvR 55-694 at 59-697 ("Stokes"); Easterbrook v Young [1974] 1 NSWLR 676 at 682 ("Easterbrook") reversed by Easterbrook v Young (1977) 136 CLR 308 but approving the established principles on change in the capacity of the personal representative, (at 320).
157Executorial duties which have to be finalised before transformation from an executor to a trustee typically include getting in all the estate and paying all debts of the estate: Brown v Holt [1961] VR 435 at 441 ("Brown"); Juul v Northey [2010] NSWCA 211 at [237] and [240] ("Juul"); Stokes at 59-967; Wood v Inglis [2008] NSWSC 1427 at [3]. But an executor may become a trustee even though some of the estate assets are affected by a mortgage, or that the estate is still burdened by a contingent liability resulting from a guarantee: Martin v Martin (1903) 3 SR (NSW) 156.
158Executorial duties may be dormant for a while and then revive. A new asset of the deceased may be discovered after the estate was thought to be fully distributed: J D Heydon, M J Leeming, Jacobs' Law of Trusts in Australia LexisNexis Butterworths, Australia, 2006 at [240] ("Jacob's Law of Trusts"). A will establishing a trust for the term of life of a person and providing what should happen to the remainder on his or her death may mean the personal representative acts as a trustee during the life of the beneficiary and returns to being an executor after the beneficiary's death: Re Pratt (decd) [1964] NSWR 105; (1963) 80 WN (NSW) 1416 per McLelland CJ at 1422 ("Pratt"). But some have said the personal representative acts as an executor throughout the whole period (see Burke v Dawes [1938] HCA 6, (1938) 59 CLR 1 at 13-14 per Starke J).
159How does the Court establish that all executorial functions have been performed? The Court will take into account all the circumstances. The length of time since the death of the testator, when no executorial duties have needed to be performed is relevant: Australian Olympic Committee Inc v The Big Fights Inc [1999] FCA 1042 at [413] ("Big Fights"); Dunn at 166; Easterbrook at 682. So is the personal representative's subjective understanding of his or her role: Dunn at 166; Stokes at 59-968; George Attenborough & Son v Solomon [1913] AC 76 at 83 ("Solomon"). Preparing and filing of the final accounts in respect of the estate is also relevant but not decisive: Big Fights at [413] and [415]; Re Claremont [1923] 2 KB 718 at 721; Stokes at 59-968.
160It has been suggested that a personal representative's duties as an executor and as a trustee may also overlap. The transformation from an executor to a trustee may occur at different times in relation to different estate assets: Hutchinson & Anor v Bank of Scotland Plc [2012] QSC 28 at 1-10; Brougham v Poulett (1855) 19 Beav 119; 52 ER 294 at 300, see also Jacob's Law of Trusts at [240]. If a will expressly creates a trust, the executor, from the time of the death of the testator, is subject to both the duties as executor and fiduciary duties in respect of the trust, despite the fact that he or she is not in fact a trustee at all: In the estate of Constantinous [2012] QSC 232 ("Constantinou") at [34] and [50].
161On the evidence tendered on the motion it is safe to assume that some administration of the estate is still to be completed in Fiji. But apart from the assets in New South Wales the subject of these proceedings, few if any estate assets can be identified as still requiring collection for the estate, and fewer estate liabilities could readily be identified as requiring discharge before the administration would be complete. It is reasonable to infer that, leaving aside the New South Wales assets, the administration of the estate in Fiji should conclude in the next one to two years. When the administration of the estate in Fiji does conclude, plaintiff Nitin and Vinod will be well aware that it has so concluded with the discharge of the final estate liabilities. Whether they make any formal declaration or not, it should not be particularly difficult to ascertain whether they continue to hold assets as executors or as merely as trustees under the trust. This has important implications for the application of the Voth test on this motion.
162But before leaving the plaintiff's claim for the appointment of an executor in this jurisdiction, the Court notes that the plaintiff's current claim for relief may enliven the Court's probate jurisdiction in another way, under doctrines of executor de son tort.
163Executor de son tort. On the evidence the plaintiff advances and on the material indirectly available from the defendants, it is open to be inferred that the defendants, or some of them, have dealt in a capacity as executors with estate assets within this jurisdiction. The defendants Nitin and Vibha, and perhaps Vinod, or some of them, must have been involved in arranging the transfer out of this jurisdiction of funds held to the credit of the ANZ bank in Sydney. In doing so the defendants who were active in these funds transfers have, at least arguably, conducted themselves as executors de son tort in relation to these funds. This exposes the defendants to liability to account under New South Wales law (being the lex fori governing the administration of the estate within the jurisdiction) to creditors and beneficiaries of Bhagwan's estate (such as the plaintiff) as executors de son tort. The availability of this right to the plaintiff is another important influence in the application of the Voth test in this case.
164Although Vibha, Nitin and Vinod have a grant of probate of Bhagwan's will in the High Court of Fiji, through that foreign grant of representation they have no authority to take possession of or deal with assets in New South Wales: New York Breweries Co Limited v Attorney-General (1899) AC 622 and Re Ricketson (1917) SR (NSW) 233. Nor can the Court entertain an action against a person whose only title is given by a foreign grant unless that person has become an executor de son tort: Commissioner of Succession Duty v Hargrave (1972) 3 SASR 118 and Cash v The Nominal Defendant (1969) 90 WN (NSW) (Pt 1) 77 ("Cash"). So it is necessary for a local grant of probate to be obtained to deal with assets within the jurisdiction, unless the executor de son tort doctrine is engaged.
165Though infrequently encountered, executors de son tort are a well established part of New South Wales law. An executor de son tort can be traced back to the reign of Edward II: F.C.Hutley, "The Executor De Son Tort in the Law of New South Wales", 25 ALJ 716 ("Hutley"). The doctrine evolved in medieval England when many local ecclesiastical authorities had authority to grant probate, and when the right to act as executor could not be easily determined. The essential principle is that if a person meddles with the goods of a deceased estate that action is notice to the creditors (and beneficiaries) of the estate that the intermeddler is an executor and the creditor (or beneficiary) is not thereafter bound to inquire as to the executor's title; the intermeddler is liable to pay the debts: Parker v Kett (1701) 12 Mod 466, at 471; 88 ER 1454. And the modern rationale for the doctrine is that no one should be permitted by refraining from taking out probate or administration to obtain possession of the deceased's property free from its liabilities: Williams, Mortimer and Sunnucks, Executors Administrators and Probate, 16th Edition, Sweet and Maxwell, p93 ("Williams").
166Despite academic criticism (Hutley), the executor de son tort doctrine is well established in this State: Nagel v Hough (1927) 27 SR (NSW) 418, at 422; and Ex parte The Public Trustee; Re Birch (1951) 52 SR (NSW) 345. The doctrine operates before assets within the State have actually vested in the executors by a grant of probate; and it operates for the benefit not only of creditors but of beneficiaries: Cash at 80, 81.
167The executor de son tort doctrine is arguably engaged here on the evidence. The defendants' case implies that the defendants or some of them were involved in transferring out of this jurisdiction the proceeds of the ANZ Bank account held on the deceased's behalf at the time of his death. That may be sufficient intermeddling with the ANZ Bank funds to infer that the defendants so involved in the transfers were executors de son tort. Queensland executors selling the wreck of the deceased's motor vehicle in New South Wales, was sufficient intermeddling to attract liability in Cash. Demanding, receiving or releasing a chose in action such as a debt due to the deceased can also be sufficient intermeddling to attract liability: Hooper v Summersett (1810) Wight. 16 at 19. Although the mere transfer of funds without a change in title is not necessarily intermeddling: IRC v Stype Investments Limited (1981) 3 WLR 426. Although, more recent authority from England and Victoria on the doctrine should be applied cautiously as in those jurisdictions, unlike New South Wales, the doctrine is regulated by statute: cf Nolan v Nolan [2004] VSCA 109 and Administration and Probate Act 1958 (Vic) s 33.
168The liability to account to a beneficiary or creditor of a person found to be an executor de son tort is limited to the assets passing through his or her hands: Cash at 80. Here that could involve accounting for the whole of the funds in the ANZ bank account. Possible defences to the action include that the defendant was not an executor (ne usque executor), that the estate had been fully administered (plene administravit) or a claim of right paramount to the deceased's title: cf Cash at 80, and Williams, at p96. An executor de son tort who unsuccessfully denies holding that office, may perhaps become exposed to personal liability beyond the estate assets he has handled: Cash at 80. Here there is a flavour in the evidence of the defendants claiming some entitlement to the ANZ Bank funds. But the defendants have not gone into evidence about their claim over the ANZ Bank funds and the precise character of their dealing with the ANZ Bank moneys will be a matter for trial. Their dealings with those funds are at least consistent with them acting as executors to repatriate the funds to Fiji, rather than their claiming personal rights over the funds. Subject to their available defences, the defendants may have to account to the plaintiff as executor de son tort within this jurisdiction.
169The two remaining parts of the plaintiff's claim require little elaboration. The plaintiff claims relief as a beneficiary against her co-trustees in relation to their administration of the trust for her benefit. The trust provides the trustees with a broad discretion in relation to making payments to Vidya, but contemplates there may be some assets of the estate still remaining for the children after Vidya's death (or remarriage). Bhagwan conferred broad powers on his trustees to provide for Vidya; the capital of the estate, and not only its income, may be used to provide for her needs.
170This Court has in personam jurisdiction over the defendants; and as a result it has jurisdiction over the exercise of their functions as trustees. An Australian court has jurisdiction under the general law in respect of the administration of a trust and its assets, if it has jurisdiction in personam over the trustees: Chellaram v Chellaram [1985] Ch 409; Webb (decd), In the Estate of; Webb v Rogers (1992) 57 SASR 193; Constantinou at [13]. This rule applies to express and constructive trusts: Nudd v Taylor [2000] QSC 344 at [28]; Webb v Webb [1992] 1 All ER 17 at 26. And this jurisdiction is not affected by the fact that the proper law of the trust is the law of another country, or that all assets of the trust are located abroad.
171Once the trust property in the trustees' hands was ascertained, Vidya's personal circumstances would be a centrepiece of the trial of this claim for relief. The exercise of the trustees' discretionary power to make distributions to Vidya under the trust would involve assessing Vidya's current needs and would take into account Bhagwan's intention in the creation of the trust: Jaques v Public Trustee of Qld as Executor and Trustee of the Estate of Jaques decd [2008] QSC 108 at [19]-[21] ("Jaques").
172Finally the plaintiff seeks relief against Vibha on what appears to be a constructive or resulting trust. The precise basis of this claim is not at all clear. For example she may be attempting to claim on behalf of the estate the return of money alleged to be held on trust by Vibha for the deceased. But if that is so she would need to prove here as an executor. This Court will not recognise a right of an executor to represent the interest of a deceased, unless he or she obtained a grant of probate within the forum: M Davies, A Bell, P Brereton, Nygh's Conflict of Laws at [37.5]. But she may be alleging that Vibha has received or is holding trust funds with knowledge of a breach of trust by Nitin or Vinod. If that breach of trust occurred in respect of the funds held pursuant to the trust in Bhagwan's will then she may have a direct right of action against Vibha.
173All this will require pleading to make it clearer. The better course is to direct pleadings now. In the directions at the conclusion of these reasons the plaintiff will be required to plead her action against all the defendants.