Dowling v St Vincent De Paul Society of Victoria Inc
[2003] VSC 454
•20 November 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT
No. 8335 of 2003
| ROBERT HOWARD DOWLING, DENNIS BRUCE and PETER JOHN WALSH | Plaintiffs |
| v | |
| ST VINCENT DE PAUL SOCIETY VICTORIA INCORPORATED (as representing the residuary beneficiaries of the Will and Codicil of Philomena Mary Coates, deceased). | Defendant |
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JUDGE: | NETTLE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2003 | |
DATE OF JUDGMENT: | 20 November 2003 | |
CASE MAY BE CITED AS: | Dowling and Ors v St Vincent De Paul Society of Victoria Inc | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 454 | |
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Executors and trustees – power of executors to compromise proceedings – whether power extends to a compromise of probate proceedings before a grant of probate is obtained – Trustee Act 1958 s. 19(1)(f).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Dr I.J. Hardingham Q.C. with Mr R. Phillips | Peter J. Walsh Carroll Kiernan & Forrest |
| For the Defendant | Mr S.G. O'Bryan S.C. | Tolhurst Druce & Emmerson |
HIS HONOUR:
Philomena Mary Coates died on 25 January 2002. She left an estate of which the net value now stands at close to $4 million. By her last will and testament dated 23 March 2001 she appointed the plaintiffs to be her executors and trustees and after providing for a number of specific and pecuniary legacies she directed that one half of her residuary estate be paid to certain of her relatives as tenants in common in equal shares and that the other half be paid to five named charities (of which the defendant is one). This proceeding concerns the efficacy of an agreement to compromise a probate proceeding in which the validity of the will is contested. The question is whether s. 19(1)(f) of the Trustee Act 1958 authorised the executors to enter into the compromise in anticipation of a grant of probate.
The executors instituted the probate proceeding on 27 February 2002 and by order made on 18 April 2003 Michael Ross Clynes was joined as defendant to the proceeding. Clynes and his wife Virginia Clynes are residuary beneficiaries under the last will and therefore they stand to benefit in the event that the last will is proved. But they were also residuary beneficiaries under an earlier will of 13 May 1994, which the last will purported to revoke, and they stood to benefit more under the earlier will than under the last will. They contested the last will on the ground of testamentary incapacity.
The probate proceeding was sent to mediation beginning on 11 September 2002 and on 26 September 2002 the executors and Clynes reached an agreement to settle the probate proceeding, subject to two conditions:
· first, that the plaintiffs ultimately obtain a grant of probate of the will; and
· secondly, that the Court make orders in a separate proceeding confirming that the executors had power under s. 19(1)(f) of the Act to enter into the agreement in anticipation of the grant of probate.
This proceeding is that separate proceeding. It was instituted by Originating Motion filed on 13 October 2003 and by the motion the executors seek a declaration that they had power pursuant to s. 19(1)(f) of the Trustee Act 1948 to compromise the probate proceeding. They also seek an order under Order 16 of the Rules of Court that the defendant represent all residuary beneficiaries under the Will, so as thereby to bind all residuary beneficiaries to the terms of the declaration.
Section 19 of the Trustee Act provides that:
“19. Power to compound liabilities
(1)A personal representative, or two or more trustees acting together, or, subject to the restrictions imposed in regard to receipts by a sole trustee, not being a trustee company, a sole acting trustee where by the instrument (if any) creating the trust, or by statute a sole trustee is authorized to execute the trusts and powers reposed in him, may, if and as he or they think fit—
(a)accept any property, real or personal, before the time at which it is made transferable or payable; or
(b)sever and apportion any blended trust funds or property; or
(c)pay or allow any debt or claim on any evidence that he or they think sufficient; or
(d)accept any composition or any security, real or personal, for any debt or for any property, real or personal, claimed; or
(e)allow any time for payment of any debt; or
(f)compromise, compound, abandon, submit to arbitration, or otherwise settle any debt, account, claim, or thing whatever relating to the testator's or intestate's estate or to the trust; or
(g)by writing waive or vary any right exercisable by him or them which arises from a failure to comply at or within the proper time with any term of any agreement for sale mortgage lease or other contract; or
(h)without prejudice to the generality of the foregoing powers, where a leasehold is vested in him, or them, and the property is subject to onerous covenants of such a nature that it would not be in the interests of the beneficiaries to retain the property, may surrender or concur in surrendering the lease—
and for any of those purposes may enter into, give, execute, and do such agreements, instruments of composition or arrangement, releases, and other things as to him or them seem expedient, without being responsible for any loss occasioned by any act or thing so done by him or them in good faith.
(2)The powers conferred by this section shall apply both to property of whatever description that belonged to or was vested in a deceased person in succession to whom the property is held by a personal representative or trustee or trustees, and also to property of whatever description that becomes vested in a personal representative or trustee or trustees in the course of the administration of an estate or trust.”
“Personal representative” is defined in s. 3 of the Act as the executor, original or by representation, or administrator for the time being of a deceased person.
The parties’ contentions
Counsel have been unable to find any authority directly in point, but Dr Hardingham QC, who appears with Mr Gronow for the executors, contends that the plain and ordinary meaning of the words of s. 19(1)(f) encompasses the sort of agreement in issue and that such authority as there is upon the meaning of the section is in favour of a very broad construction.
In Re Tong[1] claims had been made by a trustee against a tenant for life and also by the tenant for life against the trustee, and a compromise of all such claims was agreed between them upon certain terms and mutual releases of their respective claims. A question arose as to whether s. 11 of the Trustee Act 1896[2] empowered the trustee to insert in the compromise a term limiting the liability of the tenant for life in respect of future repairs to the sum of 10/- per annum. In holding that it did, Hood J said:
“In my opinion paragraph 4 of the indenture… does not involve a breach of trust, and is perfectly valid. The power given by sec. 11 of the Trusts Act 1896 is so large that, assuming bona fides, it is difficult to see the limit of it: See Lewin (11th ed.) p. 723. Trustees may compromise any claim or thing whatever relating to the trust, and for that purpose may enter into such agreements as to them seem expedient.”
[1]In re Tong, Tong v the Trustees Executors and Agency Company Limited [1910] VR 110
[2]In relevant respects identical to s. 19(1)(f) of the 1958 Act
In Re Earl of Strafford, deceased[3] the testator had settled some of his valuable chattels on a long succession of life interests. His wife the testatrix bequeathed other similar chattels to the third and fourth defendants absolutely. After the death of the testator and testatrix the first defendant (who was the son of the third defendant and the nephew of the fourth) contended that some of the chattels bequeathed to the third and fourth defendants were not the property of the testatrix but of the testator and thus were held on the trusts of the settlement under the testator’s will. The third and fourth defendants offered to compromise on terms that the trustee should not pursue any claim in respect of the disputed chattels but instead that they be divided as to one fifth to the third and fourth defendants absolutely and as to the remainder to be held upon the trusts of the testator’s will. A question arose as to whether s. 15 of the English Trustee Act 1925[4] empowered the trustees to accept the compromise and it was held that it did. Sir Robert Megarry VC said[5]:
“…Mr Nugee contended that it was a purely administrative provision, and that it could not be read as permitting the alteration of beneficial interests under the trust…
…As I have said the question of jurisdiction comes back to the terms of section 15. I can see in it no limitations or restrictions of the kind that Mr. Nugee suggests, whether express or implied. There is not a word in it to restrict or define what it is that is to constitute the consideration for any compromise; and I should be very slow to imply or read into a section couched in such wide and general terms any restrictions of the nature for which Mr. Nugee contends. It is in the mode of exercising the power, and not in the existence of the powers themselves, that any restrictions are to be found; and this suffices to prevent any misuse of the section. I think that Mr Horsfield, who appeared for the bank, and Mr Walker, who appeared for the third and fourth defendants, were right in the essentials of their contentions. They were, first, that the powers conferred by section 15 are not limited or restricted in any way by reference to the consideration to be given as part of the compromise. The only question on jurisdiction is whether what is done falls fairly within the words of the section, such as the term ‘compromise…any claim’. Second, in exercising the power, the only criterion is whether the compromise is desirable and fair as regards all the beneficiaries. It is in the exercise of the power, and not in its existence, that any disparity of benefit between the beneficiaries must be considered.”
[3]In re Earl of Strafford, Dec’d, Royal Bank of Scotland Ltd v Byng [1980] 1 Ch 28
[4]In relevant respects identical to s. 19(1)(f) of the 1958 Act
[5]ibid at pp. 34-35
On appeal to the Court of Appeal, Buckley LJ, with whom Goff LJ agreed, said:
“…The language of section 15 is, it appears to me, very wide. It would, I think be undesirable to seek to restrict its operation in any way unless legal principles required this, for it seems to me to be advantageous that trustees should enjoy wide and flexible powers of compromising and settling disputes, always bearing in mind that such a power, however wide, must be exercised with due regard for the interests of those whose interests it is the duty of the trustees to protect. I see nothing in the language of the section to restrict the scope of the power. Accordingly, any restriction must be found if anywhere, in the general law.
So I ask myself whether the proposed compromise conflicts in any way with any principle enunciated in Chapman v Chapman, or otherwise established. In my judgment the surrender of a limited interest under a settlement does not of in itself have the effect of varying the trust of that settlement.”[6]
[6][1980] 1 Ch 36 at p. 47
To similar effect Lawton LJ said:
“…Th(e) section gives the trustees a discretion to do six types of act; they are set out in the lettered paragraphs of the section. The opening words indicate that the trustees are to have a wide discretion in doing the specified acts. Not only are they to have a wide discretion to do them, but the concluding words of the section give them wide powers to carry out what they have decided to do.
The relevant power comes in paragraph (f), and the relevant part is this: the trustees may, as they think fit, compromise a claim relating to the trust. The word ‘compromise’, according the Concise Oxford Dictionary, 6th ed. (1976), p.208, means ‘settlement of dispute by mutual concession’. It follows, therefore, that if the trustee bank in this case is compromising the claim which it is making against the third, fourth, fifth and sixth defendants, there must be some making of mutual concessions. As the claim relates to chattels, it follows as a matter of construction, so it seems to me, that there must be the making of mutual concessions relating to the chattels… Seemingly the proposed compromise is within the terms of section 15.
However, the bank trustee, though having a wide discretion, must act to procure a compromise; it must act fairly and reasonably, and if it uses the power to compromise for purposes other than to procure a compromise, it will be misusing the powers given by section 15…”[7]
[7]ibid at p. 50
In Re Irismay Holdings Pty Ltd[8] Lee J of the Supreme Court of Queensland took what appears to be an even broader view of the section. In that case the claimant alleged that in the events which had occurred he was entitled to a one fifth interest in the trust fund. An agreement was entered into to settle his claim. The question was whether the trustees had power under s. 44(f) of the Trusts Act 1973(Qld)[9] to enter into the agreement. In holding that they did, his Honour said:
[8][1996] 1 Qd R 172
[9]In relevant respects identical to s. 19(1)(f) of the 1958 Act
“At first blush it is difficult to see what limitations can be implied into the subsection which do not arise from the language itself. Indeed it has been said of the provision’s English analogue that its ‘very wide words…should be given a very wide construction’… So much is apparent from the subsection itself. One hardly needs authority for the proposition that expressions such as ‘claim or thing’ and ‘relating to the trust or to the trust property’ are of the widest import and should not be read down unless their context or other circumstances clearly require it. What then is the consideration which in the present case said to give rise to such a need? For the respondents the answer to that question is said to lie principally in the judgment of Sir Robert Megarry VC at first instance in In re Earl of Strafford. At 32-33 his Lordship stated that:
‘I think it has to be borne in mind that (the section) is concerned with what may be called external disputes, or cases in which there is some issue between the trustees on behalf of the trust as a whole and the outside world. It si not concerned with internal disputes, where one beneficiary under the trusts is at issue with another beneficiary under the trusts. It is in this later territory that the learning associated with Chapman v Chapman [1954] AC 429 is particularly concerned.’
But even a cursory examination of Chapman reveals that the leaning associated with it has little if any relevance to the subsection or its English equivalent…
In my opinion the importance of the passage quoted (from Chapman v Chapman) is to bring home the absurdity of a construction of s 44(f) which would result in the existence of the trustee’s power to compromise being made to depend on the resolution of the very question which is sought to be compromised. Such a conclusion would defeat the manifest purpose of the provision. Where the very subject matter of the dispute concerns the nature of a beneficiary’s interest under the trust then it would seem eminently sensible to confer on the trustee power to settle that dispute provided that the compromise is entered onto bona fide and for the benefit of the trust as a whole, and expression which no doubt encompasses the notion that the compromise is reached for the genuine purpose of settling the dispute and not merely as an expedient means of achieving some ulterior or extraneous agenda…
In the result I consider there to be no authority for the limitations advanced by the respondents…I like Lawton LJ in In re Earl of Strafford, approach the issue essentially as one of statutory construction. Indeed the most cogent reason for concluding in the applicants’ favour seems to me to lie in their basic submission that the terms of the provision should be given their full meaning and effect. I consider it unacceptable, according to modern canons of statutory construction, to seek to imply into a statutory provision a limitation or limitations not apparent on its face unless some good reason can be advanced for doing so…”[10]
[10][1996] 1 Qd at pp. 174 and 175
Dr Hardingham submits that the dispute in this case likewise involves a claim or thing relating to the testatrix’s estate. Mr Clynes was asserting that the final will was invalid, and thus that the estate passed under the earlier will, and therefore he was claiming a greater entitlement to the deceased’s estate than that which was allowed for in the final will. Admittedly, the claim could not have resulted in any diminution of the estate. All that would have happened if the claim succeeded would be that the estate would pass under the earlier will instead of the final will. Nevertheless, in Dr Hardingham’s submission, the reasoning in Strafford and Irismay dictates that such a claim is a claim relating to the testatrix’s estate within the meaning of the section.
Mr O’ Bryan who appears for the defendant opposes that view of the section. To begin with he says that Clynes’ attack on the validity of the will is properly to be characterised as a claim relating to the plaintiffs’ entitlement to probate or as a claim relating to the validity of the last will, and in Mr O'Bryan's submission that is not a claim or thing relating to the estate within the meaning of the section. Additionally, Mr O’Bryan says that Clynes’ claim as a residuary beneficiary will not become enforceable until and unless the will is administered and the residuary estate is ready for distribution to the residuary beneficiaries. It follows, in Mr O’Bryan’s submission, that Clynes’ claim is not yet capable of being compromised and therefore cannot yet be a claim within the meaning of the section.
Next, Mr O’Bryan contends it is plain that courts do not have general jurisdiction to alter the terms of a will, nor of any trust settlement – changes may only be made in the limited circumstances recognised in cases like Chapman v Chapman[11] or pursuant to statute[12] - and executors and trustees are in exactly the same position. Self evidently it is the function of an executor or trustee to uphold the will or trust unless all beneficiaries being of age and sui juris agree to another course. Thus, whatever be the amplitude of s. 19(1)(f), Mr O’Bryan submits that it should not be construed as extending to an agreement to alter beneficial interests without the consent of all beneficiaries and, to the extent that Re Irismay appears to suggest otherwise, it should not be followed.
[11][1954] AC 429; see also Re White [1959] VR 661
[12]Trustee Act 1958, s. 67, Wills Act 1997, s. 31 and Administration and Probate Act 1958, Part IV
Further, Mr O’Bryan says, none of the authorities goes as far as saying that s. 19(1)(f) enables a trustee to settle a dispute about the validity of the trust upon which the trustee purports to hold or an executor to settle a dispute about the validity of the will by which he was appointed. To the contrary, all of the cases[13] proceed upon the basis that the trustee in question derives power under s. 19(1)(f) and its equivalents as a validly appointed trustee. It would be remarkable, in Mr O’Bryan’s submission, if a provision which ex facie is directed to the administration of trusts by validly appointed trustees were seen as empowering a putative trustee to determine the very existence and terms of the trusts to which he purports to have been appointed.
[13]In addition to those already mentioned, see Re Hoobin [1974] VR 341; Re Ezekiel’s Settlement Trust [1942] 1 Ch 230 and those collected in Ford and Lee, Principles of the Law of Trusts at [12350]
Finally, Mr O’Bryan submits that even if s. 19(1)(f) were to be read as empowering an executor to compromise a claim concerning the validity of the will, it would have to be read as limited to the period following the grant of probate. Mr O’Bryan notes that the plaintiffs were appointed administrators pendente lite by order of the court made on 31 October 2002 and that their powers as such are limited by the terms of that grant.[14] In his submission the grant would be exceeded in a fundamental way if the plaintiff’s had general power under s. 19(1)(f) to compromise the very proceeding which necessitated the grant.
[14]Griffith’s, Probate Law and Practice in Victoria at p. 36, Sunnucks, Executors, Aministrators and Probate, 18th ed, Sweet and Maxwell UK at pp. 341-3; Yeldham, Winegarten, Sunak and Rowe, Tristram and Coote’s Probate Practice, 28th ed at pp. 684-6; Parry and Clark, The Law of Succession 7th ed and Geddes, Rowland and Studdert, Wills, Probate and Administration Law in New South Wales 1st ed at 487 and 488
In reply Dr Hardingham submits that because executors derive their title from the will under which they are appointed, as opposed to an administrator who derives title from the grant of administration, the plaintiffs have as much power now qua executors as they will after probate is granted, and thus they now have all the power that s. 19(1)(f) is capable of conferring on executors to compromise a claim. It is true as he concedes that the grant of probate will provide conclusive evidence that the executors were validly appointed as such, and that until the grant is obtained the executors will have no title to sue except as administrators pendente lite, but in Dr Hardingham’s submission the compromise is in no way dependent upon the ability to sue and if, as the compromise envisages the executors obtain a grant of probate, it will confirm that at the time of the compromise they were the deceased’s personal representatives.
Section 19(1)(f)
(i) The meaning of “claim”
Despite what has been said about the breadth of s. 19(1)(f) I do not consider that s. 19(1)(f) empowers an executor as such to compromise a probate proceeding in which the validity of the will is contested.
Even allowing for the apparent amplitude of the expression “claim or thing relating to the estate”, I think that Mr O’Bryan is correct when he says that an attack upon the validity of a will is properly to be characterised as a claim relating to the plaintiffs’ entitlement to probate, or as a claim relating to the validity of the last will, and that as such it is outside the reach of the section. I doubt it matters that Clynes’ claim to the residuary estate under the earlier will may not yet be enforceable. I see no reason to exclude contingent claims from the reach of the section. The real point, in my opinion, is that neither Clynes’ claim to the residuary estate nor any other putative beneficiary’s claim upon the testator’s bounty is in issue in the probate proceeding. The issue is the validity of the will.
The word “claim” is capable in some contexts of including almost any sort of demand. Equally, according to context, the conception of things which relate to an estate may include a very broad range of possible subject matters.[15] But it requires no recitation of authority to establish that the words of a statutory provision are to be read in context and according to the apparent purpose of the provision. And in their context and according to what I perceive to the purpose of the s. 19 of the Trustee Act, “claims relating to… the estate” appear as limited to claims upon or against the estate. With respect, I think the observations of Sir Robert Megarry VC in Re Earl of Strafford[16] to be persuasive. The section is concerned with claims against the estate – be they from the outside world or as between the beneficiaries – not proceedings to determine the title of the executor or trustee.
[15]Wattle Gully Mines v Clementi (1956) 94 CLR 353 at 366; Ravenshoe Tin Dredging Ltd v Federal Commissioner of Taxation (1996) 116 CLR 81 at 90 and 95
[16][1980] 1 Ch at p. 32H; cf Ford and Lee at [12530] contra
(ii) Variation of beneficial interests
I am also inclined to think that Mr O’Bryan is correct in saying that, whatever be the reach of s. 19(1)(f), it does not authorise the alteration of beneficial interests without the consent of all interested beneficiaries. It is unlikely that the section is concerned with internecine disputes between beneficiaries, for as Sir Robert Megarry VC said in Re Strafford “it is in this latter territory that the learning associated with Chapman v Chapman[17] is particularly concerned”. The history of s. 19 of the Trustee Act also lends support to the conclusion that s. 19(1)(f) does not authorise trustees to alter beneficial interests without the consent of all beneficiaries or court approval. I am conscious that Lee J said otherwise in Re Irismay, and his Honour’s views on the subject are of course to be accorded considerable respect. But given the principles which are essayed in Chapman and the history of the legislation, I take leave to disagree.
[17][1954] AC 429
Some of the history of the section appears in the report of counsel’s argument in Earl of Strafford. Section 30 of the Powers of Trustees, Mortgagees, etc. Act 1860 (Lord Cranworth’s Act) was directed to getting in the estate and did not contemplate any dealing with the beneficiary’s interest in the estate once got in. Section 37 of the Conveyancing Act 1881 was said to have the same limited objective. Section 15 of the Trustee Act 1925 was derived from those earlier provisions. The purpose of the earlier enactments seems to have been to give trustees administrative powers of a kind that were commonly conferred by well-drawn settlements before 1860; not to confer power on trustees and personal representatives to compromise claims concerning the validity of wills. There is nothing to show that s. 15 of the 1925 Act was intended to achieve any more. Another view of the matter is that the common law in the sense that includes equity gave executors very large powers of compromise in respect of external claims and that, while s. 19 to some extent codified those existing powers, it added nothing new[18].
[18]Houghton v Houghton [1904] 1 Ch 622 at 625
(iii) Administration pendente lite
I attribute less significance to the grant of administration pendente lite than does Mr O'Bryan. As Dr Hardingham pointed out, even before an executor proves the will he may do all the acts which are incident to his office except some of those which relate to suits[19]. As it is put in Griffith[20]:
“The grant of probate provides conclusive evidence of the exicutor’s appointment and of the terms of the will. However, the executor derives his title from the will and not from the probate, but the production of the probate is the only way in which, by the rules of court, he is allowed to prove his title. Before obtaining a grant of probate he can release debts, assent to legacies, intermeddle with the foods of the testator, enter into possession of his effects, take possession of his land, pay his debts, receive moneys owing to the deceased and sell assets, but these powers are subject to the condition that he will at some time satisfy the Court that he has power.“
The need for the grant of administration pendente lite springs principally from the rule that the executor cannot rely on his title in any court without production of probate or a grant of administration with the will annexed[21]. But so far from operating to reduce the powers otherwise conferred upon an executor, a grant of administration pendente lite appears to me to add to the executor’s powers for the limited purposes for which the grant provides.
[19]In re Stevens; Cook v Stevens [1897] 1 Ch 422 at 429; Ryan v Davies Brothers Limited (1921) 29 CLR 527 at 536
[20]Griffith’s Probate Law and Practice in Victoria 3rd Ed p. 10
[21]Williams, Mortimer and Sunnucks, at p. 83
It may be, as Mr O’Bryan argued, that so long as the grant of administration pendente lite continues to exist, the executors are strictly speaking precluded by s. 21 of the Administration and Probate Act 1958 from instituting or conducting any proceeding concerning the estate (except in accordance with the grant of administration).[22] But even if that were so, I doubt it says much about the effect of s. 19 of the Trustee Act. Although the decision in Re West[23] is consistent with a broad interpretation of the exclusionary effect of s. 21, the two reports of the case are very limited. I think the better view is that s. 21 operates to exclude the powers of an executor only to the extent that they are conferred upon another by grant of administration. As has already been seen, s. 19 of the Trustee Act derives from a line of provisions enacted to ensure that trustees and executors are armed with the sorts of powers that might once have been included in well drawn trust deeds and wills. It is unlikely that s. 21 of the Administration and Probate Act was intended to nullify that objective in those cases where a limited grant of administration pendente lite proves necessary or desirable.
[22]See In re West, deceased - Barclays Bank Limited v Handley (1946) 62 TLR 745; [1947] WN 2
[23]ibid
I also acknowledge the force of Dr Hardingham’s submission that executors derive their title from the will by which they are appointed and, in that sense, that the plaintiffs have as much power now under s. 19(1)(f) as they would have when and if probate is granted.[24] In principle it does not detract from the force of that submission that a grant is necessary in order to establish that the executors were validly appointed. The executors may in some respects have no more power than has been conferred upon them as administrators pendente lite, and their powers under that grant are certainly limited. But as Dr Hardingham submitted, the compromise is not dependent upon any of the things provided for in the grant of administration. Furthermore, if the executors obtain a grant of probate, as is envisaged in the compromise, the grant will confirm that the executors were truly the deceased’s personal representatives when they entered into the compromise. In the result I am inclined to agree that the scope of the power conferred upon an executor by s. 19(1)(f) should not be thought to vary according to whether the executor has or has not yet obtained a grant of probate.
[24]Ryan v Davies Bros Ltd (1921) 29 CLR 527 at p. 536; Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603; Griffith, ibid
(iv) Compromise of probate proceedings
But all that having been said, I remain of the view that s. 19(1)(f) does not authorise an executor to compromise a probate proceeding in which the validity of the will is contested. The first and principal function of the executor is to carry out the wishes of his testator as expressed in the will[25] and thereby to protect the interests of the beneficiaries as determined by the testator. I do not consider that s. 19(1)(f) is to be given an interpretation inconsistent with that principle.
[25]In the Estate of Speke (1913) 109 LT 719; In Re Muirhead, dec’d [1971] P. 263 at p. 268
Dr Hardingham argued at one point that any concerns for the interests of the beneficiaries would in this case be misplaced. He contended that inasmuch as the settlement is conditional upon the executors later obtaining a grant of probate, the court will still have to decide whether the disputed will is valid and that the interests of absent beneficiaries will thereby be protected. But I do not find that submission to be particularly persuasive. It is one thing to decide that a will is valid. It could be quite another to determine that it is in order to compromise a claim of invalidity on terms that may allow something in favour of the claimant (and thereby vary beneficial interests).[26] The court may well decide the former question when a grant of probate is sought. But other things being equal, there will be no call to deal with the latter; at least in Victoria.[27] If Dr Hardingham were correct about the construction which is to be placed upon s. 19(1)(f), the compromise would be binding on absent beneficiaries even though the will were proved.
[26]In the Estate of Szylowicz, dec’d [1978] SASR 263 at p. 270
[27]Re Levy, deceased (No 2) [1957] VR 662 at p. 666
I also understood Dr Hardingham to say at one point that as a matter of fact the compromise in this case does not to purport to vary any of the beneficial interests under the will, as is demonstrated by the condition of the compromise that the will must be proved. I do not find that submission to be very persuasive either. It does not follow from the fact that the will is to be proved that the compromise does not provide for any variation of beneficial interests under the will. It will depend on the terms of the compromise. The terms of the compromise are not in evidence and thus I am unable to say.
Additionally, Dr Hardingham argued that it would be curious and inconvenient if probate proceedings could not be settled at mediation without the consent of all affected beneficiaries. As he would have it, that is another indicator that s. 19(1)(f) has the scope for which he contends. I do not think so.
Certainly, there is no question that a probate proceeding may be compromised, or that parties to the probate proceeding may be bound by an order made in the proceeding as a result of the compromise, so long as the compromise is an order in relation to the issues before the court. Practically speaking there is no limit to the terms upon which parties may agree to compromise a probate proceeding and thus it has been said that parties may in effect even make a new will for the testator. An executor may agree that the will which he propounds shall be admitted to probate but that he will administer the estate in accordance with the provisions of a revoked will. But the court retains the power itself to decide what are the valid testamentary dispositions.[28] Thus while a probate proceeding may be compromised and the parties to the proceeding and their privies may be bound by the compromise, they will be bound as parties or privies and not because of any power under s. 19(1)(f) to impose a settlement upon them.[29]
[28]Goods of Watts (1837) 1 Curt 594 at 595; 163 ER 203; Will of Podger [1957] VR 275 at p. 278; Re Breen [1961] VR 522 at p. 525 ; cf Re Grey Smith [1978] VR 596 at 601 at p. 602
[29]Re Levy, deceased (No 2), supra; Vandeleur v Franich [1991] 1 Qd R 481 at pp. 484-5; Geddes, Rowland and Studdert, Wills, Probate and Administration in New South Wales at [40.88] and [40.89]
In contrast to the position in England, where the High Court has been given statutory power to impose a compromise on non-consenting beneficiaries[30], this court has no power to bind absent beneficiaries to a compromise[31] and thus if a compromise is reached it is necessary in order that it be binding upon them to make all affected beneficiaries party to the proceeding either as such or by way of representative order.[32] So far as I can see it has not been suggested in any of the cases or texts that the same result can be achieved under s. 19(1)(f) of the Trustee Act. Given that s. 19(1)(f) has existed in one form or another for more than one hundred years, I regard that as very significant.
[30]Administration of Justice Act 1985, s. 49 ; Tristram and Cootes, Probate Practice at p. 686
[31]Collingham v Sloper [1894] 3 Ch 716; Re Knowles [1966] Ch 386; Williams Mortimer and Sunnucks, at [39-03]
[32]Re Levy (No 2) supra; Geddes, Rowland and Studdert, supra
The declaration which is sought
There is also another reason for refusing the declaration which is sought. A trustee’s or personal representative’s power to compromise a claim under s. 19(1)(f) depends upon the existence of a claim to be compromised. If rights are undisputed or easily enforced there is no justification in compromising.[33] On any analysis the power to compromise which is conferred by s. 19(1)(f) is limited to the entry into a proper compromise in good faith and in the best interests of the beneficiaries as a whole. In the circumstances of this case the plaintiffs do not and have not sought to prove anything about the propriety of the compromise. To the contrary, the whole purpose of the exercise appears to have been to avoid any litigation in which that question is tested. Accordingly, even if s. 19(1)(f) did empower an executor to compromise a claim of invalidity, the most that could be declared, in this case, would be that it is within power of the executors to enter into a proper compromise of the claim of invalidity.
[33]Ford and Lee, Principles of the Law of Trusts, at [12530]; Re Hoobin [1957] VR 341 at 343
Furthermore, until and unless a grant of probate is obtained it cannot be known with certainty that the executors are the testator’s personal representatives. They may be, but that remains to be proved. Consequently, any declaration in this proceeding would have to be limited even further. In effect it could not go beyond a declaration that, if the executors are the personal representatives of the deceased and if the compromise is a proper compromise of the claim of invalidity, the executors would have power under s. 19(1)(f) to enter into the compromise.
Such a declaration would not be based on facts found or agreed and in that sense it would be purely hypothetical. As the High Court said in Bass v Permament Trustee Co[34]:
“At best (it) would do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of the proceeding. Since the relevant facts are not identified and may be in dispute the (declaration) would be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of the courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.”
[34](1999) 198 CLR 334 at p.357 [49] et seq
It follows in my opinion that such a declaration should not be made.
Conclusion
In the apparent absence of authority to the contrary, and in light of what I have said about the history of the section and the duties of an executor, I have reached the view that s. 19(1)(f) does not authorise an executor to compromise a dispute as to the validity of a will without the consent of affected parties or an order of the court that binds them.
For those reasons the application for declaration will be refused. The need for a representative order does not arise.
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