Campbell v Campbell - [2006] QSC 371

[2006] QSC 371

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ROBIN A/J

No 9173 of 2006

DAVID ARTHUR CAMPBELL	Applicant
and
ALEXANDER ANDREW CAMPBELL	Respondent

BRISBANE

..DATE 09/11/2006

ORDER

CATCHWORDS: Succession Act 1981 s 6 - joint grant of probate to applicant and respondent (executors and trustees under their fathers will) - each authorized (acting alone) to prosecute estate claims which he concluded existed against the other - neither wanted an independent executor and trustee - application for removal of respondent failed because (a) his purported renunciation was not final, (b) the applicant had an equivalent conflict of interest.

HIS HONOUR: The unfortunate aspect of this proceeding is that it takes place between brothers. Their mother died on the 10th of December 2003 and their father at an advanced age on the 24th of December 2005, having suffered a debilitating stroke about the 3rd of November 2005.

The respondent had been the carer of both of them, residing with them in the main asset of their father's, which was a home unit on the Gold Coast. The Court understands that he was the full-time carer, had forsaken whatever possibilities he had of working to attend to caring for his parents.

By the father's will the parties were appointed executors and trustees:

"or if one should predecease me, renounce or otherwise not act or continue to act then...the other."

The estate was left to the parties equally. The Will was made on the 16th of January 2004. The application before the Court which may be regarded as coming under section 6 of the Succession Act is for a grant of probate subject to the Registrar's formal requirements to the applicant and for the removal as executor and trustee of the respondent. The applicant wants to be in a position to take proceedings in the estate's interest against the respondent; he relied on Baldwin and Neale v. Greeland [2006] QCA 293.

The application for removal is based in part on a communication which the respondent sent to his own solicitors and copied to the applicant's solicitors on the 7th of July 2006.

It says:

"I happily Renounce my responsibility as executor and trustee of my father's estate. I have spent many years without adequate payment. As a full-time carer for my parents it has cost me everything I own. This has been for the sole benefit of my brother."

That appears never to have been signed but there is no doubt it was sent. Its effect may have been cut down by his own solicitor's communication five days later which uses the language of futurity:

"He will renounce his responsibility..."

Mr Ulrick, for the applicant, referred to Williams, Mortimer and Sunnucks On Executors, Administrators and Probate (17 ed, 1993 at p 378) who state:

"Renunciation must be absolute and not conditional and is a formal act in writing whereby a person having a right to probate or administration waives and abandons that right. Although renunciation takes effect from signature, it may be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Campbell v Campbell

Details

AGLC: Campbell v Campbell [2006] QSC 371
Case: [2006] QSC 371
Decision Date: 09/11/2006

CaseChat Overview and Summary

In the Supreme Court of Queensland, David Arthur Campbell applied for a grant of probate in relation to his father’s estate and sought the removal of Alexander Andrew Campbell as executor and trustee of the estate. The estate was to be divided equally between the brothers. The father’s will had appointed the brothers as executors and trustees, with a provision that if one of them renounced, the other would act alone. The respondent had sent a letter to his solicitor and copied it to the applicant’s solicitor, stating that he renounced his responsibilities as executor and trustee. However, the letter was not signed, and the respondent’s solicitor subsequently stated that the renunciation would occur in the future. The applicant argued that the respondent’s renunciation was conditional and not absolute, and that there was a conflict of interest that warranted the respondent’s removal.

The court held that the respondent’s purported renunciation was not final, as it was not signed and was conditional on the applicant acknowledging certain matters. Additionally, the applicant had a similar conflict of interest, as he had received a $70,000 payment from the testator that he considered a gift, while the respondent contended that it was part of a trust arrangement. The court refused to remove the respondent as executor and trustee, as both parties had conflicts of interest, and they were opposed to bringing in an independent executor and trustee. Instead, the court granted a joint grant of probate to the parties, with each authorized to prosecute claims against the other alone. The court also ordered that the main asset of the estate, a home unit, be sold, with the proceeds divided equally between the parties.

The court held that the differences between the parties extended to the refurbishment of the home unit, and that means of resolving that issue should be discussed. The court was grateful to the parties for reaching agreement on many elements of an appropriate order. The court ordered that the real property be sold unencumbered with vacant possession by a certain date, with the parties to contribute equally to the cost of any refurbishment recommended. The original will and certificate of title were to be delivered to a solicitor to enable transmission of the real property to the parties as personal representatives. Half of the $94,500 held in trust was to be paid to each party’s solicitor, with the accruals held in trust until agreement or other order. The proceeds of the bank accounts were to be held in trust until agreement or other order. The net proceeds of the sale of the real property were to be divided equally between the parties at settlement. The balance of the monies held in trust was to be used to pay any outgoings on the real property. The respondent was permitted to reside in the real property until sale but was not to interfere with the sale. There was no order as to costs. The order was to come into effect on a certain date, with liberty to apply on two days’ notice.

Orders