Gorman v McGuire

[2002] NSWSC 1089

CITATION:	Gorman v McGuire: Estate of J.M. Gorman [2002] NSWSC 1089
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 5505/02
HEARING DATE(S):	13 November, 2002
JUDGMENT DATE:	13 November 2002
PARTIES :	John Patrick Gorman - Plaintiff Lisa Bernadette McGuire - Defendant
JUDGMENT OF:	Palmer J

COUNSEL :	T.G.R. Parker - Plaintiff Ex parte - Defendant
SOLICITORS:	Maurice Blackburn Cashman - Plaintiff Ex parte - Defendant
CATCHWORDS:	PROBATE - REVOCATION OF GRANT - EXECUTOR - One of two co-executors applies to Equity Court seeking his removal as executor because of conflict of interest and duty in his administration of the estate - Plaintiff seeks order for partial revocation of grant of probate - held: where one of two or more executors is to be removed, either voluntarily or involuntarily, the original grant of probate must be revoked and a fresh grant of probate made to the remaining executor or executors - partial revocation of a grant of probate is not possible - principle discussed. REVOCATION OF GRANT - PROCEDURE - An application for revocation of grant of probate is made in the inherent probate jurisdiction of the Court, not the general equitable jurisdiction, and the Probate Rules must be observed. REVOCATION OF GRANT - COSTS - Co-executor applies for revocation of grant because of conflict of interest - co-executor failed to obtain legal advice as to his position of conflict prior to applying for probate - if legal advice had been obtained, executor would have renounced grant and application for revocation would have been unnecessary - held: it was not reasonable that the costs of the application should be borne by the estate.
LEGISLATION CITED:	Family Provision Act 1982 (NSW)
CASES CITED:	- Bates v Messner (1967) 67 SR(NSW) 187 - Shaw, in the Estate of George - [1905] P.92 - Shaw v Thomas [1954] NZLR 585
DECISION:	Original grant of probate revoked; fresh grant of probate made to Defendant as sole executrix; no order as to costs.

1    The Plaintiff is co-executor with his sister, the Defendant, of the estate of their late mother Jeanette Mary Gorman. Probate of the will of the deceased, which is dated 28 July 1998, was granted to the Plaintiff and the Defendant by this Court on 29 December 1999. 2    The Plaintiff and the deceased had carried on a business together as a joint venture for some years before the deceased's death. Thereafter, the Plaintiff continued to use some of the joint venture assets and to pay monies in and out of the joint venture bank account, partly for his own purposes and partly for the joint venture account. 3    There has not yet been an accounting as between the Plaintiff and the deceased's estate in respect of the Plaintiff's dealings with the joint venture. Moreover, the Plaintiff's father has commenced proceedings under the Family Provision Act 1982 (NSW) seeking further provision out of the estate. The Plaintiff hopes to be able to negotiate an agreement with the estate whereby all matters in issue between himself and the estate and between the estate and his father may be finally resolved. If this could be achieved, no doubt the estate would be spared a great deal of unnecessary cost in litigation. 4 However, it is abundantly clear that the Plaintiff is in a hopeless position of conflict of interest and duty if he remains as executor of the estate while attempting to negotiate and to conclude such an agreement. He therefore seeks his removal as executor, leaving his sister, the Defendant, as sole executrix. His sister consents to this course of action. The only problem is as to how this eminently sensible object is to be achieved. 5 The Plaintiff's solicitors enquired of the Duty Registrar as to the appropriate procedure and they were informed that application should be made to the Equity Court for the Plaintiff's removal as executor. The Plaintiff has therefore filed in the Equity Division a Summons seeking an order that the grant of probate of the deceased's will be revoked to the extent that it appoints the Plaintiff as co-executor and, in the alternative, an order that the Plaintiff be removed as co-executor of the will. 6 In my opinion, neither order is appropriate. Where probate of a will has been granted to more than one executor and one of the executors is to be removed voluntarily or involuntarily for proper reasons, the Court recalls and revokes the original grant itself and makes a fresh grant of probate to the remaining executor or executors. The revocation is a revocation in toto, not a partial revocation, and the fresh grant to the remaining executor or executors entirely supplants the former grant. That this is the appropriate procedure for the removal of one of a number of executors is established by cases such as In the Estate of George Shaw [1905] P.92 and Shaw v Thomas [1954] NZLR 585, the latter case having been approved by the New South Wales Court of Appeal in Bates v Messner (1967) 67 SR(NSW) 187. 7 That the original grant should be recalled and revoked and that a fresh grant should be made is necessary because a grant of probate is a public document and often must be produced to third parties so that the executors can get in and administer the property of the deceased’s estate. The grant must be, and must appear to be, complete on its face so that third parties may act upon it without concern that it may have subsequently been varied as to the continuance in office of one of the named executors. 8 The cases to which I have referred, and the cases therein cited, have all concerned applications to revoke a grant of probate on the ground that one of the executors has refused to carry out the administration of the estate or has proved unfit to carry out such duties. The recalcitrant or unfit executor has been made a defendant in the proceedings. In this application, however, the Plaintiff himself is seeking the revocation of the grant on the ground that his continuance in the office of executor will place him in an irreconcilable conflict of interest and duty. 9 In my opinion, an executor who perceives himself to be placed in a position of impossible conflict if he continues in the office of executor is entitled, himself, to initiate proceedings for revocation of the grant and for the making of a fresh grant to a remaining executor or, if there is no remaining executor, to some other appropriate person. 10 The circumstances in which the Court may, in the exercise of its inherent jurisdiction, revoke a grant of probate are not limited to confined categories. As was said by Asprey JA in Bates v Messner at p.191:
“The exercise of this Court's jurisdiction to revoke a grant of probate, unlike the Court's power to revoke a grant of letters of administration, depends upon the inherent jurisdiction of the Court …. I shall make no attempt to define all circumstances which may attract the exercise of the court's jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill-health, or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant.”
11 In the present case I am satisfied that the due and proper administration of the deceased's estate will be placed in jeopardy unless the Plaintiff is released from his executorial duties and is removed from his office. This is not because of any delinquency on the part of the Plaintiff but rather it is because, as a matter of practicality, he cannot now discharge his duties as executor in attempting to administer the affairs of the estate without breaching his fiduciary duty not to place himself in a position of conflict and duty. If the Plaintiff is not removed from that difficulty, the administration of the estate may be stultified and an appropriate and beneficial settlement of all issues affecting the estate may be frustrated. 12 In those circumstances, the Defendant having consented to the Plaintiff's removal and to her remaining as sole executrix, I am prepared to make orders revoking the original grant of probate of the will of the deceased to the Plaintiff and to the Defendant and making a fresh grant of probate to the Defendant alone. 13 I should add that these orders are made in the exercise of the Court’s inherent Probate jurisdiction and that the Plaintiff’s Summons should, therefore, properly have been in the form prescribed by the Probate Rules and should properly have been entered in the Probate list rather than in the general Equity list. I will make appropriate orders curing these defects. 14 The Plaintiff now seeks an order that the costs of this application be paid out of the estate on an indemnity basis. Mr Parker, who appears for the Plaintiff, relies by analogy on the provisions of Pt.52A r42 of the Supreme Court Rules. That Rule provides:

“(1) Where a person is or has been a party to any proceedings in the capacity of trustee or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of the proceedings out of the fund held by the trustee or out of the mortgaged property, as the case may be, in so far as the costs are not paid by any other person.

(2) The Court may otherwise order pursuant to subrule (1) only where:

(a) the trustee or mortgagee has acted unreasonably, or
(b) in the case of a trustee, he has in substance acted for his own benefit rather than for the benefit of the fund.”
15    In the present case, I do not think it would be reasonable that the estate bear the costs of this application. The Plaintiff’s difficulty is a personal one. It has arisen out of the fact that he has had dealings with the joint venture account which require an accounting to the estate, and he seeks to be in a position to reach some compromise with the estate to accommodate issues arising out of those dealings, in addition to other matters which are quite independent. However, it should have been apparent to the Plaintiff, if properly legally advised, as at the time when application was made for the grant of probate that he would almost inevitably be placed in a position of conflict of duty and interest were he not to renounce the executorship and were he to accept that appointment. 16    Mr Parker says that the Plaintiff cannot be blamed for failing to appreciate that the wiser course would have been for him to renounce his executorship. It is said that the Plaintiff, not being a lawyer, was simply in ignorance of the legal problems which would arise. While that is true enough by way of a personal explanation, in my view, the fact remains that the Plaintiff ought reasonably to have obtained legal advice as to his position in regard to the executorship and his dealings with the joint venture account and with the estate prior to accepting the grant of probate. 17    Because the difficulty which has made necessary this application has been at least partly due to the Plaintiff 's failure to obtain appropriate legal advice as to his own position, I do not think that the estate should bear the costs of the application. Therefore, the order which I will make will be that the Plaintiff will pay the costs of this application. 18    I make orders in accordance with the Short Minutes of Order initialled by me, dated today and placed with the papers.
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Last Modified: 11/26/2002