Christie v Ashton

[2011] NSWSC 1600

Supreme Court

New South Wales

Medium Neutral Citation:	Christie v Ashton [2011] NSWSC 1600
Hearing dates:	22 November 2011
Decision date:	22 November 2011
Jurisdiction:	Equity Division - Probate List
Before:	White J
Decision:	Refer to paras [9], [11], [13] and [14] of judgment.
Catchwords:	WILLS, PROBATE AND ADMINISTRATION - application for revocation of reseal and grant of probate - where on executor and trustee suffering from ill health and not been able to assist in administration of estate - reseal of grant of probate revoked and fresh reseal made
Cases Cited:	Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 Gorman v McGuire [2002] NSWSC 1089
Category:	Interlocutory applications
Parties:	Geoffrey Christie (Plaintiff) Philip Ashton (Defendant)
Representation:	D Flaherty (Plaintiff) N/a (Defendant) Simpson Freed (Plaintiff) N/a (Defendant)
File Number(s):	2011/270764

Judgment

1. HIS HONOUR : This is an application for the revocation of a reseal and grant of probate. The application relates to the estate of Peter Walker Charles Snell who died on 7 January 2007 leaving a will dated 11 July 2000. By his will he appointed the plaintiff, a solicitor, and the defendant, an accountant, as his executors and trustees.

1. Probate was granted in the Supreme Court of Queensland on 15 February 2008. The grant was resealed in this Court on 20 March 2009. Since the grant of probate and reseal the plaintiff has assumed the whole of the burden of administration of the estate. The defendant suffers from ill health and has not been available to assist.

1. On 28 October 2010 the defendant wrote to the plaintiff stating he had been in less than perfect health and would resign as trustee of the estate if the plaintiff preferred him to do so.

1. Since then the plaintiff has been unable to obtain necessary information from the defendant to enable the estate to be properly administered. For example, the defendant had agreed to undertake the task of preparing taxation returns of the deceased, and for the estate, for the financial year ending 30 June 2007, but has not done so.

1. In October 2010 the defendant told the plaintiff that he did not have the time and health to allow him to continue as executor. The executor has failed to respond to queries and other communications from the plaintiff. For example, he has failed to respond to the plaintiff's request as to whether a tax file number had been obtained for the estate and, if so, what it was. The defendant, although served, does not appear to oppose the current application.

1. I am satisfied that the estate cannot be properly administered if the defendant remains as one of the executors.

1. The resealing has proved to be at least inefficient due to the defendant's inaction. It is appropriate to exercise the power to remove the defendant as executor (see Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80).

1. An order was also sought that the defendant be removed as trustee of the will. It does not appear the plaintiff and the defendant have yet assumed the position of trustees. Their administration of the estate as executors is not complete.

1. I make the following orders:

1. Order that the reseal of the grant of probate of the will of the late Peter Walter Charles Snell dated 11 July 2000 made to the plaintiff and the defendant on 20 March 2009 be revoked and a fresh reseal be made to the plaintiff, Paul Edward Freed, solicitor, of 304 Kingsway, Caringbah.

2. Order that within twenty-eight days the defendant deliver to the plaintiff Paul Edward Freed, any assets of the estate of the late Peter Walter Charles Snell that are in his possession or control and any accounts or other books in his possession or control relating to the estate.

1. In my view the estate should not be put to the costs of this application. In that respect the position is similar to circumstances considered by Palmer J in Gorman v McGuire [2002] NSWSC 1089 at [15].

1. I order that the defendant pay the plaintiff's costs of the application.

1. An order is also sought vesting assets that are in New South Wales in the new trustees of the will. It does not appear to me that administration is complete. The executors have not assumed the role of trustees. I do not think that a vesting order is necessary, but I will reserve liberty to apply in case any issue arises in that respect.

1. I also give liberty to the plaintiff and to Paul Edward Free to apply.

1. I refer the proceedings to the Registrar to complete the fresh reseal.

Decision last updated: 20 December 2011