Garrett v Mullins-Trnovsky - [2014] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
GARRETT v MULLINS-TRNOVSKY
[2014] SASC 138
Reasons for Decision of The Honourable Justice Gray
19 September 2014
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT - SOUTH AUSTRALIA
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - GENERALLY
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - CIRCUMSTANCES - OTHER CASES
Application to remove an executor of a deceased estate and appoint a new executor. The executor’s will named four executors: Michael Cowan Garrett, Barbara Wanda Mullins, Eric Dawson Mullins and Peter Grant Pain, now known as Peter Grant Adams. Probate was granted to Mr Garrett, Barbara Mullins and Eric Mullins. Leave was reserved for Mr Adams to apply. Barbara and Eric Mullins have since died. Mr Garrett sought to resign to address a perceived conflict of interest arising out of the provision of allegedly negligence tax advice to the estate. Mr Adams applied to be appointed executor. Neither the removal of Mr Garrett nor the appointment of Mr Adams were opposed.
Whether grounds made out to warrant an order for the removal of Mr Garrett. Whether to appoint Mr Adams.
Held per Gray J (granting the application):
1. Mr Garrett cannot continue to effectively administer the estate given the seriousness of the conflict of interest.
2. In all the circumstances, it is appropriate to make an order for the removal of Mr Garrett.
3. In all the circumstances it is appropriate to appoint Mr Adams as executor.
4. Grant of probate to Michael Cowan Garrett revoked.
5. Grant of probate issued to Peter Grant Adams.
Income Tax Assessment Act 1936 (Cth), referred to.
Mullins-Trnovsky v Adams [2014] SASC 116, considered.

GARRETT v MULLINS-TRNOVSKY
[2014] SASC 138
Testamentary Causes Jurisdiction
GRAY J.

This is an application to remove an executor of a deceased estate and appoint a new executor.
Background
Douglas Dawson Mullins died on 21 March 2006. His last will was dated 15 July 2005 and named four executors: Michael Cowan Garrett, the first plaintiff and a director of the accountancy firm BDO Advisory (SA) Pty Ltd; Barbara Wanda Mullins, the testator’s wife; Eric Dawson Mullins, the testator’s son; and Peter Grant Pain, now known as Peter Grant Adams, the testator’s step-son and the second plaintiff. The defendants are beneficiaries of the estate.
On 28 July 2008, the will was admitted to probate. The grant was made to Mrs Mullins, Eric Mullins and Mr Garrett. Leave was reserved for Mr Adams to apply. In his affidavit of 15 August 2014, Mr Adams explains that he did not apply for probate at the same time as the other executors because it was considered unnecessary at the time. Mrs Mullins and Eric Mullins died on 20 February 2012 and 21 March 2006, respectively, making Mr Garrett the sole executor of Mr Mullins’ estate.
Mr Garrett and Mr Adams were also appointed executors of Mrs Mullins’ estate.…

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 Garrett v Mullins-Trnovsky

Details

AGLC: Garrett v Mullins-Trnovsky [2014] SASC 138
Case: [2014] SASC 138
Decision Date: 19 September 2014

CaseChat Overview and Summary

This case involves an application to remove an executor of a deceased estate and appoint a new executor. The parties involved are Michael Cowan Garrett, the first plaintiff and former executor of Douglas Dawson Mullins' estate, and Peter Grant Pain, also known as Peter Grant Adams, the second plaintiff and named executor in the will. The defendants are beneficiaries of the estate. The will, dated 15 July 2005, named four executors, but only three were granted probate on 28 July 2008. Leave was reserved for Mr Adams to apply for a grant at a later time. The legal issues that the court had to decide were whether the deeds executed by Mr Garrett to resign as an executor were effective as a matter of law and whether it was appropriate to issue a grant of probate to Mr Adams, who is not opposed by the defendants.

The court found that the deeds executed by Mr Garrett were not effective as a matter of law, and therefore he should be removed as an executor of Mr Mullins' estate. The court also found it appropriate to issue a grant of probate to Mr Adams, who is named as an executor in the will and whose appointment is not opposed. The court revoked the grant of probate to Mr Garrett and directed that a new grant of probate be issued to Mr Adams.

The court's decision was based on the fact that Mr Adams was named as an executor in the will, and there was no opposition to his appointment. The court also found that Mr Garrett's resignation as an executor was not effective as a matter of law, and therefore he should be removed from his position. The court's decision was in line with the Succession Act 2006 (SA) and the common law principles governing the appointment and removal of executors. The court's final orders were to remove Michael Cowan Garrett as executor, revoke the grant of probate to him, and issue a new grant of probate to Peter Grant Adams.

Orders

Orders of the court

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Background

Background to the litigation

This is an application to remove an executor of a deceased estate and appoint a new executor.Background Douglas Dawson Mullins died on 21 March 2006. His last will was dated 15 July 2005 and named four executors: Michael Cowan Garrett, the first plaintiff and a director of the accountancy firm BDO Advisory (SA) Pty Ltd; Barbara Wanda Mullins, the testator’s wife; Eric Dawson Mullins, the testator’s son; and Peter Grant Pain, now known as Peter Grant Adams, the testator’s step-son and the second plaintiff. The defendants are beneficiaries of the estate. On 28 July 2008, the will was admitted to probate. The grant was made to Mrs Mullins, Eric Mullins and Mr Garrett. Leave was reserved for Mr Adams to apply. In his affidavit of 15 August 2014, Mr Adams explains that he did not apply for probate at the same time as the other executors because it was considered unnecessary at the time. Mrs Mullins and Eric Mullins died on 20 February 2012 and 21 March 2006, respectively, making Mr Garrett the sole executor of Mr Mullins’ estate. Mr Garrett and Mr Adams were also appointed executors of Mrs Mullins’ estate. The administration of that estate is the subject of separate proceedings in this Court.[1] Those proceedings arise out of alleged delays in the administration of the estate and the provision of allegedly negligent tax advice by Mr Garrett and BDO, which may have resulted in the estate incurring a significant liability under Division 7A of the Income Tax Assessment Act 1936 (Cth). Mr Mullins’ estate also faces this potential tax liability. It is to be understood that the administration of the two estates is closely related, having regard to the common assets and beneficiaries in each estate. [1] Mullins-Trnovsky & Ors v Adams & Ors SCCIV-13-1391. Mr Garrett sought an order removing him as an executor of Mrs Mullins’ estate to address a perceived conflict of interest. On 20 August 2014, I made orders giving effect to his resignation.[2] [2] Mullins-Trnovsky v Adams [2014] SASC 116. Mr Garrett also formed the view that he should no longer act as an executor of Mr Mullins’ estate. To that end, on 17 May 2013, Mr Garrett executed a deed appointing Trevor Paul Edmond, a solicitor, as a trustee of the estate. Mr Edmond is also an executor of Mrs Mullins’ Estate. On 17 December 2013, Mr Garrett executed a deed effecting his resignation as a trustee of the estate. On 19 December 2013, Mr Edmond executed a deed appointing Mr Adams as a trustee of the estate. On 15 August 2014, Mr Garrett swore an affidavit in support of his application to be removed as an executor of Mr Mullins’ estate. Mr Garrett expressed the belief that the deeds referred to above were not effective as a matter of law. Accordingly, Mr Garrett sought an order from this Court removing him as an executor of Mr Mullins’ estate at the same time that I made orders removing him as an executor of Mrs Mullins’ estate. In his affidavit of 15 August 2014, Mr Adams applied to be appointed as executor of Mr Mullins’ estate. These applications were not opposed by the defendants.The Applications

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

Mr Adams was named as an executor in the will. Leave was reserved for him to apply for a grant of probate and his appointment as executor is not opposed. It is appropriate to issue him with a grant of probate.Conclusion I allow the application to remove Michael Cowan Garrett as executor. I revoke the grant of probate to Michael Cowan Garrett and direct that a new grant of probate be issued to Peter Grant Adams.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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