Bourdales v Carroll

[2007] NSWSC 1057

CITATION:	Bourdales v Carroll; Estate of Diane Holbrook [2007] NSWSC 1057
HEARING DATE(S):	17/9/07
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	17 September 2007
DECISION:	Caveats lodged by defendants upheld. Grant of letters of administration to be made to the Public Trustee.
CATCHWORDS:	SUCCESSION [84]- Wills Probate and Administration- Probate and Letters of Administration- To whom granted- Deceased died intestate, unmarried and without children- Deceased's uncle and aunts next of kin- Uncle seeks grant of administration- Opposed by four aunts who seek appointment of Public Trustee as administrator- Held, right of administration is in aunts notwithstanding that uncle applied first, theirs being the greater interest- Grant made to Public Trustee.
LEGISLATION CITED:	Public Trustee Act 1913, s 18
CASES CITED:	Bain v Morabito (Powell J, 14/8/1992) BC 9201674 Re Loveday [1900] P 154 Re Parsons (1887) 13 VLR 169 Re Slattery (1909) 9 SR (NSW) 577 Re Whitelaw (1936) 36 SR (NSW) 469
PARTIES:	Victor Edouard Bourdales (P) Marie Marthe Carroll (D1) Yvette Liddle (D2) Sylvia Hartley (D3) Camille Gnauck (D4)
FILE NUMBER(S):	SC 112185/07
COUNSEL:	M Dempsey SC and V McWilliam (P) M Meek (D)
SOLICITORS:	John S Zouroudis & Co (P) Adrian Twigg & Co (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

YOUNG CJ in EQ

Monday 17 September 2007

112185/07 – BOURDALES v CARROLL; ESTATE OF DIANE HOLBROOK

JUDGMENT

1 HIS HONOUR: Technically the question before me today is whether caveats lodged by four persons who together are entitled to two thirds of the estate of the late Diane Holbrook should be upheld. However, the consequence of a finding to that effect would merely be that the court would have the same basal question to decide on another occasion. It has been sensibly agreed between counsel that if I found that the caveat had substance then I should proceed to try the question as to what grant of administration should be made.

2 Diane Holbrook died on the 4 May 2006 single. She had never married. She was never in a de facto relationship. She never had any children.

3 Accordingly, it is agreed that under the laws of succession the persons who are entitled to her estate are her one uncle, the plaintiff, and her five aunts, four of whom are the caveators. The fifth aunt has by her attorney (she now being an incapable person) agreed to the plaintiff's application.

4 The basal rule when the court is considering whether to grant administration in the estate is that the appointment must be one which advances the real object of administration, that is, the due and proper administration of the estate; see Re Loveday [1900] P 154, 156.

5 Within that general rule judges have over the centuries enunciated a series of guidelines as to how one ascertains who should administer the estate. In essence, these are that the right to administration follows interest. That is, the person who has the greatest interest as a beneficiary in the estate is normally entitled to the grant. Thus, if one has a situation where four people together hold two thirds of the beneficial interests in the estate and seek administration and another person, with a sibling, hold one third of the estate and also claim the right to administer, then the former group is usually preferred; see Re Slattery (1909) 9 SR (NSW) 577; Bain v Morabito (Powell J, 14/8/1992) BC 9201674 and Re Parsons (1887) 13 VLR 169.

6 Mr Dempsey SC with Ms McWilliam appear for the uncle. He seeks a grant. He is supported by one of his sisters. He says he applied first and Re Parsons indicates that some significance is given to that matter. He says he has done a lot of work in getting the assets together. His sisters knew what he was doing and did not complain until he had gone a long way down the track in getting the assets together. He says that this is not a case like Re Slattery where the beneficiaries personally applied for the grant, rather they say the Public Trustee should have the grant. The consequence is that the Public Trustee’s commissions, under his Act, will be about $24,000. In addition there may be other costs, for instance, there may be some compensation to the plaintiff for what has already happened. The plaintiff says that were he to be given a grant he would not seek any compensation for his time to date, nor seek any commission going forward. He hasn't, however, said anything as to if the grant goes the other way.

7 Mr Meek, who appears for the caveators, says that they do not trust their brother to administer the estate. They say there are incidents already which raise suspicion and that the administration should be put in the hands of an independent person. They admit that this will cost $24,000, or $4,000 each, but they say that this is going to be offset by minimising the disputes that would inevitably arise if their brother is allowed to administer the estate unsupervised. The riposte by Mr Dempsey and Ms McWilliam is that the brother will not be working unsupervised because there will be an administration bond and there will also be a requirement to file accounts which will need to be vouched and the sisters will be able to make surcharges and falsifications.

8 The matter is finely balanced. There is merit in what both sides say. Mr Dempsey says that the sisters' objections are emotional and not based on fact. To a degree this is right, but I do see that there is some basis for the doubts. I was attracted for a while to the cost factor, but the estate is about $1.6 million (and according to the sisters may well be more if it was properly investigated) thus, $24,000 is really not that significant a factor in the mix.

9 Mr Dempsey says that this is almost a case of estoppel because the sisters have held back whilst a sufficient amount of work was done which will now have to be duplicated. There is no estoppel as such in actions in rem for the appointment of an administrator if the work has been done thoroughly and well. Doubtless the Public Trustee will adopt it and it may or may not be that he will think it appropriate to provide some compensation for the work he would have had to do himself. I say nothing more about that.

10 It does seem to me on balance it will be cheaper in the long run to have an independent person administer this estate. I do not think it is a sufficient ground to distinguish Re Slattery on the basis that it is the Public Trustee which is to be the administrator rather than the sisters. Mr Meek referred me to the decision of H S Nicholas J in Re Whitelaw (1936) 36 SR (NSW) 469. However, s 18 of the Public Trustee Act 1913 has been amended and there no longer seems to be any real difference between an application being made through the Public Trustee and by the next of kin themselves.

11 Accordingly, I would uphold the caveats.

12 I would direct that, subject to the Registrar being satisfied of all procedural matters, that a grant of letters of administration should be made to the Public Trustee.

13 So far as costs are concerned, I consider that this is an unfortunate dispute between brother and sisters, all of whom consider that they are acting in the interests of the estate as a whole, and it is appropriate that the costs for both sides of the motions before me today come out of the estate.

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