Con Peter Kramer as executor of the will of Joan Irma Money v Edgar Norris Evans as executor of the will of Joan Irma Money - [2022] WASC 381

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CON PETER KRAMER as executor of the will of JOAN IRMA MONEY -v- EDGAR NORRIS EVANS as executor of the will of JOAN IRMA MONEY [2022] WASC 381
CORAM:   MASTER SANDERSON
HEARD:   31 AUGUST 2022
DELIVERED          :   9 NOVEMBER 2022
PUBLISHED           :   9 NOVEMBER 2022
FILE NO/S:   CIV 1456 of 2022
BETWEEN:   CON PETER KRAMER as executor of the will of JOAN IRMA MONEY
Plaintiff
AND
EDGAR NORRIS EVANS as executor of the will of JOAN IRMA MONEY
First Defendant
GARRY MATHEW DEVINE as executor of the will of EVELYN ISABEL DEVINE
Second Defendant
DOROTHY JUNE KITTO
Third Defendant

Catchwords:

Probate - Removal of executor and replacement with new administrator - Basis of appointment

Legislation:

Administration Act 1903 (WA)

Result:

Executor replaced with new administrator

Category: A

Representation:

Counsel:

Plaintiff	:	GD Cobby SC
First Defendant	:	R Nash
Second Defendant	:	No appearance
Third Defendant	:	M Curwood SC

Solicitors:

Plaintiff	:	Kershaw Legal
First Defendant	:	Jackson McDonald
Second Defendant	:	Mount Barker Legal
Third Defendant	:	Lawton Gillon

Case(s) referred to in decision(s):

Dimos v Skaftouros (2004) 9 VR 584
Mann v Grantham [2004] VSC 156
R v Registrar of Titles; Ex parte Irish [1915] VLR 622

MASTER SANDERSON:

By originating summons filed 10 May 2022 the plaintiff sought relevantly the following order:
1.Pursuant to section 20(1) of the Administration Act 1903, the plaintiff have leave to retire as executor of the will and trustee of the estate of the late Joan Irma Money who died on 12 October, 2020 and Ian Torrington Blatchford or such other person as the Court deems fit be appointed in his stead.

The application was supported by an affidavit of the plaintiff sworn 10 May 2022. Each of the defendants filed an appearance and the second defendant filed a notice of intention to abide by the decision of the Court. He has taken no part in the proceedings.
The matter first came on for hearing before me on 2 August 2022 in general chambers. Counsel for the plaintiff advised there was no opposition from the first and third defendants to the making of the order sought in the originating summons. Counsel for the first defendant, while indicating she had no objection to the order being made, expressed reservations as to whether or not Mr Blatchford, who was in effect a stranger to the estate, could be appointed as administrator. In other words, she had reservations about whether or not s 20(1) of the Administration Act 1903 (WA) could be used to facilitate the making of the order sought. Senior Counsel for the third defendant expressed similar reservations. He suggested it would be open to make the order pursuant to the inherent power of the Court. However, counsel said he had not considered the point in any detail and he did not need to do so. His instructions were to consent to the making of the order. Furthermore, his client intended to apply in these proceedings for the removal of the first defendant as the co‑executor of the estate. Counsel for the first defendant objected to this course on the basis it was not open in this action commenced by the plaintiff seeking an order removing him as the executor, for the third defendant to seek an order removing the first defendant as an executor. Counsel for the first defendant maintained separate proceedings were necessary.
At the conclusion of the argument, I indicated to the plaintiff I would make the order sought removing him as an executor. That order was clearly appropriate. The plaintiff had been accused by the first and third defendants of having a conflict of interest and of negligence. He was not a beneficiary under the will and he had no interest in maintaining his position as an executor. The first and third defendants were supportive of his decision to retire. Mr Blatchford is a very experienced solicitor who has over the years taken on administration of a wide variety of estates. I had no doubt his appointment was appropriate. I suggested to counsel for the plaintiff she contact the Principal Registrar to draw an order which reflected my decision to appoint Mr Blatchford.
When the plaintiff's solicitor did approach the Principal Registrar, the Principal Registrar expressed reservations about the basis upon which the order was made and the form of the orders. Cognisant of the concerns of the Principal Registrar, the plaintiff's solicitor instructed Senior Counsel who prepared a set of submissions which, in effect, provided the basis for the appointment of Mr Blatchford. These reasons, which in large measure reflect counsel's submissions, deal with the basis upon which the appointment was made. On 1 September 2022, I also made orders which allowed for the third defendant's application to remove the first defendant as an executor to be heard and determined in these proceedings. These reasons also deal with that procedural issue.
Turning then to the first issue, and the appointment of Mr Blatchford, the starting point is s 20 of the Administration Act. Section 20 is in the following terms:
20. Personal representative may relinquish trust
(1)A personal representative may at any time, by leave of the Court, and on such conditions as the Court may impose, relinquish his trust to such person as the Court may appoint.
(2)Notwithstanding any such order, such personal representative shall continue liable for all acts and neglects whilst he was acting as executor or administrator, but not otherwise or further.
The section is a remedial power and is therefore to be construed liberally: see R v Registrar of Titles; Ex parte Irish [1915] VLR 622, 627 and Dimos v Skaftouros (2004) 9 VR 584 [9]. Beyond noting the intent of the section, there is little authority as to how an order made pursuant to s 20 is to be given effect. In Mann v Grantham [2004] VSC 156, Byrne J at [96] indicated he expected draft orders would be submitted dealing, in summary, with:
(a)the discharge of the applicant as executor and his retirement as trustee;
(b)the vesting of the trust assets; and
(c)the delivery of the existing grant of probate to the Registrar so that it might be amended and reissued to reflect the court's orders.
In Mann's case, there was no replacement for the retiring executor with the remaining executor continuing in that role. That is the difficulty in this case. Whatever may be the merits of Mr Blatchford, he was not named in the will and he had, until his appointment, no connection with the estate. It is those circumstances which caused the Principal Registrar disquiet.
It was the plaintiff's position the most appropriate way to give effect to orders made pursuant to s 20(1) was for the existing grant of probate to be delivered to the Registrar for amendment by inserting reference to the order, annexing a sealed copy of the court's order to the grant and reissuing the grant as amended. It was submitted that course was preferable to revocation of the grant and the issue of letters of administration with the will annexed. This latter course was not seen as appropriate for a number of reasons which should be detailed.
First, the power conferred by s 20 stands outside the general law of succession such that the operation of the section should not be governed by procedures developed without regard to its existence. Second, s 20(1) contemplates that the successful applicant will 'relinquish his trust' to a person approved by the Court. The word 'relinquish' connotes that it is the existing responsibilities which are given up by the successful applicant to the approved appointee, not that those responsibilities be terminated and re-conferred. Third, where there are multiple executors, it is not always necessary to revoke an existing grant to give effect to the removal of an executor. The plaintiff submitted that his approach avoids a difficulty which would arise from the revocation of the existing grant. If the existing grant was revoked, Mr Blatchford would be entitled to the grant of letters of administration with the will annexed but not probate. Leaving to one side the argument whether the first defendant should be removed, he would remain entitled to probate. If the grant is not amended, it must therefore be revoked and letters of administration with the will annexed issued instead. The making of an order pursuant to s 20(1) does not relieve the personal representative from liability for conduct occurring prior to the making of the order: see s 20(2). It is therefore appropriate that the amended grant record the plaintiff was executor and trustee of the estate until the making of the order. To revoke the grant and issue a fresh grant would result in an incomplete picture being presented to those relying upon the new grant unless reference was made to the orders in that grant.
For those reasons, on 31 August 2022 I made the following orders:
1.Pursuant to section 20(1) of the Administration Act 1903, the plaintiff have leave, as from the date of this order, to relinquish his appointment as executor of the will and trustee of the estate of the late Joan Irma Money who died on 12 October, 2020 to Ian Torrington Blatchford.
2.The plaintiff is entitled to an indemnity out of the estate in respect of the costs incurred by him:
(a)in the administration of the estate;
(b)in his proposed application to the Court for directions;
(c)in this application for leave to retire as executor of the will and the trustee of the estate of the late Joan Irma Money; and
(d)all other costs incurred by him solely or as co-executor of the will of the late Joan Irma Money.
3.The plaintiff and the first defendant do all such acts as are necessary to vest the property of the estate of the late Joan Irma Money into the names of the first defendant and Ian Torrington Blatchford.
4.The plaintiff and the first defendant are to bring in the original grant of probate (PRO/6989/2020) to enable amendment of the grant to reflect these orders and for the inclusion in it of a certified copy of these orders.
5.The Probate Registrar is directed to amend and re-issue the grant of probate noting the amendments required by these orders.
Turning then to the question of whether the third defendant can apply in these proceedings for removal of the first defendant as executor of the estate, I accept on the face of it at least, separate proceedings would be necessary. However, there was no real utility in requiring the third defendant to issue fresh proceedings. All necessary parties were before the court. Moreover, the plaintiff's affidavit, although dealing primarily with the issue of his retirement, set out relevant facts and correspondence. Counsel for the first defendant made it plain his client did not accept the evidence contained in the plaintiff's affidavit and he indicated if the affidavit was to be relied upon, the plaintiff should be made available for cross‑examination. But that did not alter my view that the better course practically was to allow the third defendant to make her application in these proceedings so as to move matters on to finality as soon as possible. During the course of his submissions, counsel for the first defendant suggested if these proceedings were to be utilised for the purposes of determining the third defendant's application, the action should be treated as if commenced by writ. With respect, that was an eminently practical suggestion and accordingly orders were made as follows:
1.This action proceed as if commenced by writ.
2.By 9 September 2022, the plaintiff provide the Court with a list of the parties' joint unavailable dates for a hearing of the action.
3.By 16 September 2022 the third defendant file and serve:
(a)a minute of the proposed orders she seeks for the removal of the first defendant as executor and trustee of the estate;
(b)points of claim in support of the minute of proposed orders seeking the removal of the first defendant as executor and trustee of the estate; and
(c)any affidavits she intends to rely upon at the final hearing.
4.By 30 September 2022 the first defendant have liberty to file and serve:
(a)points of defence in response to the third defendant's points of claim; and
(b)any affidavit which he intends to rely upon in the proceedings.
5.By 7 October 2022 the parties file any affidavit which is purely responsive to an any affidavit filed pursuant to orders 3 and 4.
6.By 14 October 2022 the parties file written submissions.
7.No affidavit be admitted into evidence unless the deponent is available for cross examination at the hearing.
8.A directions hearing be listed on 29 September 2022 at 9:45am.
9.Liberty to apply.
10.Costs reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Associate
10 NOVEMBER 2022