Application by Horner
[2018] VSC 736
•26 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2018 02438
APPLICATION BY:
| MARK JAMES HORNER (in his capacities of co-executor, co-trustee and beneficiary of the EDWARD JAMES HORNER ESTATE) | Applicant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 August 2018 |
DATE OF JUDGMENT: | 26 November 2018 |
CASE MAY BE CITED AS: | Application by Horner |
MEDIUM NEUTRAL CITATION: | [2018] VSC 736 |
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ADMINISTRATION AND PROBATE — Where applicant is one of three executors of estate — Applicant seeks answers to questions of law — Where questions concern disputed issues between executors — Application pursuant to r 54.02 not appropriate where issues disputed and co-executors not parties — Supreme Court (General Civil Procedure) Rules 2015, Order 54.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person |
HER HONOUR:
Introduction
This proceeding concerns certain questions relating to the cremated remains of Barbara Jean Horner (‘Mrs Horner’) and Edward James Horner (‘Mr Horner’).
Mrs Horner died in 1994. Mr Horner died in 1999. They were survived by their three adult children, namely, the applicant and his two siblings, John and Jane (respectively ‘John’ and ‘Jane’). Mr Horner was the executor of the estate of Mrs Horner. The three children are the executors of the estate of Mr Horner.
Application
In support of his application made by originating motion filed 26 June 2018, the applicant filed an affidavit sworn 26 June 2018, together with detailed written submissions comprising 33 pages, without annexures. The applicant’s stated objective is to ensure that his parents’ cremated remains are treated with dignity and respect.
The applicant seeks directions as to the following questions of law:
Question 1: What are the executors’ rights and duties regarding Mum’s ashes given that she left burial instructions was a devout Christian and Dad was her executor?
Question 2: What are the executors’ rights and duties regarding Dad’s ashes given that Dad left no burial instructions and was a practicing Christian?
Question 3: Is there property in the ashes and if so who is the owner?
Question 4: Does the law grant the applicant a right of access to the ashes to express his respects and verify the ashes are treated with dignity and respect?
Question 5: Is dealing with and disposing of the ashes an exercise of joint or several power?
Question 6: Does the applicant have a right to make enquiries of John and Jane regarding [sic] chattel which is missing from the estate and right of access to accounts and documents of the estate or is he statutorily barred or restrained in some other way?
By notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006, the Attorney-General of the State of Victoria was notified of the application. By letter dated 29 August 2018, the Attorney-General notified the Court that he would not be intervening in the proceeding.
On the first return of the application, the Court queried the basis and breadth of the application and whether the applicant’s siblings were aware of it. The Court also asked the applicant whether he had obtained legal advice or representation or had sought assistance through the pro bono scheme. His answers to these questions were in the negative. The Court required the applicant to narrow the issues as best he could.
The applicant forwarded amended explanations of his ‘objections’ with evidence to support his objections in attached bundles of evidence and authorities.
The applicant’s objections are as follows:
(a)the majority of executors, namely, John and Jane, expose the ashes to the risk of:
(i)treatment that does not ensure the ashes are treated with ‘dignity and respect’; and/or
(ii) treatment that amounts to ‘degrading treatment’.
The majority ignore the applicant’s requests to discuss jointly a proper disposal of the ashes and was excluded by them from discussions in which they identified three disposal options, but could not agree. All options require exhuming Mrs Horner’s ashes, overturning her executor’s decision to honour her burial instructions and deny the parents of their common law right to a Christian burial.
(b) the majority are treating the ashes as property and Jane as the owner. This status quo amounts to Jane having rights of continuing possession and exclusion. Jane has exercised her ‘rights’ so as to exclude the applicant from accessing the ashes to express respects. The applicant is prevented from assessing the state and verifying the location of the ashes, even though he is an executor;
(c) there are three matters outstanding, namely, disposing of the ashes, distributing a ‘missing’ chattel and reviewing accounts and correspondence, but the executorship is dysfunctional. Jane has placed a ban on the applicant communicating with her. Earlier John and Jane rejected the suggestion by their father’s solicitor for an informal meeting to resolve the chattel matter, which triggered the ashes matter. John seemingly has ceased to act as executor yet supports Jane’s continuing possession of the ashes and burdens the applicant by requiring him to negotiate with Jane even though John knows Jane ignores the applicant and, thus, the applicant claims he is being forced to abandon his duties as an executor; and
(d) the applicant’s approach to the Court is supported by the decision in
Re Atkinson where Gillard J explained:Where an executor or trustee is in doubt as to the course of action it should adopt, it is always entitled to take the opinion of the Court as to what it should do. If in doubt as to whether or not it should take legal proceedings, then it is entitled to apply to the courts for directions on the matter.
The applicant says that the law is uncertain and so too are the rights and duties of the executors in this matter and seeks the Court’s opinion and directions.
Factual background
Mrs Horner died 11 March 1994. Mr Horner was the executor of her estate. The applicant stated that his father honoured his mother’s funeral and burial instructions to bury her ashes so that she might live eternally as a rose tree. Mr Horner interred the ashes by mixing them with earth and potting mix, placed the mixture in a pot and then planted a rose tree in the pot. Mr Horner kept the rose tree with him at the family home until his death in 1999. The applicant stated that the problem is that his mother’s ashes are not in a secure place because they reside in a pot plant.
Mr Horner died on 3 November 1999. He did not leave any funeral or burial instructions and did not leave instructions as to the rose tree. On Mr Horner’s death, John, Jane and the applicant jointly decided to cremate Mr Horner’s body and for Jane to take possession of both the rose tree and Mr Horner’s ashes in the interim. The applicant understands that Mr Horner’s ashes are in Jane’s possession but he is not aware if they have been removed from their urn and interred.
Over a lengthy period of time, the applicant has sought on several occasions to arrange a meeting with his siblings to discuss dealing with and disposing of the ashes. His requests have been ignored or rejected. Jane has engaged with the applicant once on the matter of the ashes. On the applicant’s first request for access to the ashes so that he could express his respects, Jane proposed access to the ashes on the basis that the applicant cease enquiring into a missing chattel of the estate. This was not agreeable to the applicant. Thereafter, Jane has ignored his subsequent requests to access the ashes or for the three siblings to deal with and dispose of the ashes.
In June 2012, the applicant applied to this Court for a declaration as to his executorial duties in relation to the ashes.[1] He stated that the application was narrower than his current application and asked different questions. At the time of the June 2012 application, the applicant was unaware the ashes were at risk. The question in the earlier proceeding was whether the applicant would be in breach of his duty as an executor if he did not take legal action to require the majority of the executors to deal with and dispose of the ashes and resolve the issue of the missing estate chattel.
[1]Proceeding No. S CI 2012 03702.
At the first directions hearing in the 2012 proceeding, the applicant gained the impression from the Court that as to the ashes, a majority of executors supported Jane’s continuing possession of the ashes and that it would not be possible for the applicant to be in breach of his duties if he did not take action to alter that status quo. As to the missing chattel, the applicant thought that the Court said it would be necessary for the applicant to ‘take on’ the other two executors and that seemed a hollow endeavour given that it was not likely that John and Jane in their capacities as beneficiaries would bring an action against the applicant as an executor who failed to take such action. The Court informed the applicant about pro bono assistance, however, in light of what was said by the Court, the applicant decided that it was not worthwhile to pursue the proceeding any further and the application was dismissed.
The applicant said that in March 2016 he reached out to John to see if they could resolve their differences. In April 2016, they met and John informed him that he had no interest in the ashes and that he supported Jane’s possession of the ashes. John explained that the applicant’s behavior was abominable and that he did not want a reconciliation. However, as a result of this meeting, John wrote to Jane advising her that he supported access to the ashes by the applicant but the applicant feels that this placed a burden on him to negotiate that access with Jane. Jane has not contacted the applicant and, on an earlier occasion, Jane’s solicitor advised the applicant that his attempts to contact Jane on the outstanding estate issues were tantamount to harassment and Jane would not hesitate to seek an intervention order against him if he did not cease such behavior immediately.
John and Jane identified three options to dispose of the ashes of Mr and Mrs Horner:
(a) take the ashes to England and throw them off the Clifton Suspension Bridge into the Avon River which flows about 80 metres below and is near where Mr Horner lived as a child;
(b) take the ashes to Penang and bury them at the Casuarina Resort near a tree sponsored by Mr Horner; or
(c) divide the ashes.
These options cause immense concern to the applicant as they require disturbing Mrs Horner’s ashes, overturning her instructions, interfering with Mr Horner’s decision as the executor of Mrs Horner to honour Mrs Horner’s instructions, and disposing of the ashes in a manner that denies both Mr and Mrs Horner of their right to a Christian burial. The applicant’s view is that all of these options fall well short of treating the ashes with dignity and respect.
Consideration
The applicant seeks directions from the Court as to six questions of law, relying on the extracted quote in Re Atkinson.[2] Re Atkinson invokes the Court’s jurisdiction, now encapsulated in Order 54, to provide advice or directions to personal representatives on a matter of administration or management, or as to the construction of the will or trust instrument, without the need to commence an administration suit. Under r 54.02(1), an application may be brought for any relief that could be granted in an administration proceeding.
[2][1971] VR 612, 615. See also G E Dal Pont, Equity and Trusts in Australia (Thomson Reuters, 5th ed, 2011) 585–6 [23–170]; J D Heydon and M J Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016) 532–5 [21–34].
In Re Atkinson, the personal representative sought the Court’s advice or direction on the question of whether or not it ought to initiate or defend a proceeding on behalf of an estate. In that context, Gillard J stated as follows:
If the executor or trustee then followed the direction of the court, it would be protected from any claim by a beneficiary or creditor arising from its action or inaction in accordance with the court’s direction … In cases of real doubt, the proper course for a personal representative or trustee to adopt is to seek the court’s decision as to whether or not the action should be brought, otherwise the representative or trustee might find itself paying the costs of any proceedings which the court might subsequently say were ”not properly incurred”.[3]
[3][1971] VR 612, 615 (citations omitted).
The exercise of power by the Court to authorise, or refuse to authorise, a proposed course of action is discretionary. When asked to advise whether or not a personal representative should initiate or defend a proceeding, the Court’s role is limited. It is not bound to investigate the evidence in order to make a finding as to the outcome of a proposed proceeding; it must determine only whether the proceeding should be taken, that is, whether the proposed course or action is lawful and proper.[4]
[4]G E Dal Pont and K F Mackie, Law of Succession (LexisNexis Butterworths, 2nd ed, 2017) 460 [13.36], citing Re Atkinson (deceased) [1971] VR 612, 616 (Gillard J); Salmi v Sinivuori [2008] QSC 321 (10 December 2008) [16].
The procedure pursuant to Order 54 should not be used where the questions are likely to raise contested issues of fact or allegations of breach of trust by one party interested in the administration of the trust against another.[5]
[5]Tsaknis v Lilburne [2010] WASC 152 (21 June 2010) [41].
The applicant requests the Court to provide answers to six questions described as questions of law. The first five questions involve questions of law concerning the ashes of Mr and Mrs Horner in the context of a dispute between the applicant and John and Jane over many years. The sixth question involves the applicant’s rights to make enquiries of John and Jane over a missing estate chattel and rights of access to accounts and documents of the estate, again in the context of a dispute between the applicant and John and Jayne over many years. There is reference by the applicant to those disputes and correspondence from Jane’s solicitor threatening an intervention order against the applicant if he did not cease his behavior towards her. There is no reference in the submissions as to the context of the missing estate chattel or the issues with the estate accounts and documents.
Clearly there are disputes between the applicant, John and Jane that mean there will be contested issues of fact in the administration of the estate, making the procedure adopted by the applicant to proceed using Order 54 singularly inappropriate.
In his originating motion, the applicant says the reason for there being no defendants is because his application requests the Court to declare what is the law and he is not in a position to make a claim or seek a remedy against John and Jane. He states he is unsure if the application requires him to issue a summons on John and Jane and notes, however, that the Court has power to invite John and Jane to become parties under r 54.04(1) of the Rules, if the Court considers it necessary.
The applicant requests that the Court make an order that Jane advise the Court of the location of the ashes and, if she is in possession of the ashes, an order that she retain possession of the ashes while the Court considers this application. The Court would not make orders against a non party and would not make orders joining either John or Jane where there are disputes between them and unknown contested issues of fact.
The applicant also requests that the Court consider the applicant’s submissions and declare what is the law regarding the six questions of law and grant leave to the applicant to consider the Court’s declarations, discuss the declarations with John and Jane and grant the applicant the indulgence to make a further request to the Court, pursuant to r 54.02, if required. The Court has considered the applicant’s submissions and for the stated reasons, it is inappropriate to consider the questions in circumstances where there are disputes between the applicant, John and Jane and unknown contested issues of fact.
Orders
Accordingly, the Court orders that the proceeding be dismissed.
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