Halliday v Hill

[2003] VSC 509

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
IN ITS PROBATE JURISDICTION
PRACTICE COURT

No. 7551 of 2003

ANTHONY HALLIDAY	Plaintiff
v
DAVID JOHN HILL AND ORS	Defendants

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2003
DATE OF JUDGMENT:	19 December 2003
CASE MAY BE CITED AS:	Halliday v Hill & ors (No. 1)
MEDIUM NEUTRAL CITATION:	[2003] VSC 509

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Probate – Grant of letters of administration with will annexed where some executors renounced probate and one executor failed either to prove or to renounce probate – unsuitability of remaining executor

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Verspaandonk	Pointon Partners
Second Defendant in person

HIS HONOUR:

1. Margaret Blanche Halliday died on 19 January 2000.  She left a last Will dated 10 July 1995.  It is common ground that that is the Will which is her valid last Will and it is not suggested, at least today, that any earlier Will has any relevance.

1. By her Will she appointed her sons, David John Hill, Peter Cameron Paul Halliday and Robert Charles Halliday as executors and trustees.  She gave the whole of her property to her trustees on trust to sell, call in, collect and convert the same into money, subject to their discretion and included in that was the usual discretion to postpone such sale.

1. Then having sold the estate and paid debts and the like, upon trust to divide it into five equal parts: one part to David John Hill, one part to Peter Cameron Paul Halliday, one part to Robert Charles Halliday and two parts to another son Anthony Julian Halliday, then resident in England, and the will went on to make various provisions of a type that is not unusual to be found including a wish rather than a direction in paragraph 7 that consideration be given to Anthony purchasing a home with his two shares from the state. No step was taken by the executors to obtain probate of this will, and that resulted in an originating motion being filed in this court on 9 September of this year by Anthony Julian Halliday, he being the son entitled to two of the five shares and being the only son not named as executor. The originating motion sought orders under s.15 of the Administration and Probate Act, 1958, that the defendants renounce probate (the defendants being the three executors) and that they bring the will into court and that the plaintiff be granted letters of administration with the will annexed. Affidavits were filed in support of that originating motion: an affidavit of Andrew Robert Cox, the solicitor for the plaintiff, who among other things deposed that no grant of probate had been made but that he had written to the second defendant Peter Halliday inquiring as to whether a grant had been made and asking for a copy of the will, and that he received no responsive letter; that on 24 May 2002, he searched the title for the land and found no dealings with the land but that the land was still in the name of the deceased. He wrote in April of this year, to each of the defendants and again asking that steps be taken to prove the will but received no response from any of them. The application was also supported by an affidavit of Anthony Julian Halliday, the plaintiff, setting out the circumstances relating to his mother's will; the main asset of the estate is at 109 Hallett Street, Beaumaris. He refers to the history of the matter and in some paragraphs which were referred to by the parties, commencing at paragraph 24, he deposes that the second defendant who appears in person before the court this day, that the second defendant in May had told the plaintiff that he would never be given any money from the estate and that he said that he proposed that the estate purchase a dwelling which he could rent and that the trust would continue indefinitely. The plaintiff deposes that Mr Peter Halliday also told him that he would need to provide Peter Halliday with details of the plaintiff's financial position in order that appropriate market rent could be set by the executors for Anthony's proposed occupation of the property to be purchased and that the plaintiff says that he replied that he had received legal advice, he did not agree with Peter Halliday's understanding of his duties or his ideas, which he thought were bizarre and deceitful. Anthony deposes that he said he did not want to stress Robert Halliday: at some point Robert was going to have to take a loan or the house be sold in order that Anthony receive his entitlement.

1. In paragraph 25, the plaintiff goes on to depose as to a meeting in June with Robert Halliday and Peter Halliday, in which he again said he would like to receive his entitlement, preferably in a way that would enable Robert to continue to remain in the property.  He deposes that Peter Halliday then said the property would never be sold but would be kept subject to a trust with himself in charge of its administration indefinitely and said that the value of the property subject to the trust, would increase to $1.8 million over the next few years; that Robert would pay rent to live at the property, that the plaintiff would pay rent to live in a flat to be chosen by him (that is, Peter Halliday) and bought by the estate.  The plaintiff deposes that Mr Peter Halliday said that he would charge fees to manage the trust and that these would increase as the value of the trust property increased.  Robert appeared to agree with and the plaintiff rejected those proposals.  Then the plaintiff deposes in paragraph 26, to a further discussion and a meeting on 19 June, he says again it was clear that none of them (that is, referring to the executors) intended to pay him his entitlement.  He reiterated his view that the property had to be sold and the moneys distributed in accordance with the will.  Mr Robert Halliday said that any proceeds of sale could be retained by the defendants as trustees and in their discretion, disbursed to beneficiaries and the plaintiff said he did not agree with those proposals and wanted his entitlement paid to him and the affidavit goes on to refer to further discussions and meetings.

1. The plaintiff's exhibits were also referred to and in particular, Exhibit AJH2, in which the second defendant states views that the proper administration of the estate excluded realisation by sale of the estate property in the near future and other statements consistent with what were deposed to by the plaintiff in his affidavit and to a similar effect is material contained in Exhibit AJH3.

1. The proceeding came before Master Wheeler on 9 October and was then referred to Justice Byrne on the same day and there was a consent order made, the plaintiff and third named defendant were represented by counsel and the second defendant appeared in person.  It was ordered that on or before 31 October 2003, the defendants bring the last will of the deceased into court and prove or renounce same.  That order was not complied with by the second defendant.  I note that the will was brought into court but the second defendant neither proved nor renounced the will as he was ordered to do by the court on 9 October.

1. At various times, the other defendants did in fact execute documents purportedly renouncing probate and it is not contended before me that those documents were ineffective, nor is it contended that insofar as that was done after this order that they had failed to comply with it and it is not any part of this proceeding to consider those aspects.  However the fact remains that the second defendant neither proved nor renounced the will in accordance with the court's order of 9 October.

1. As I say, the will was produced and there was a note on the file that Mr Peter Halliday the second defendant produced it to the court and it was placed on the court file where it remains, on 31 October of this year.  Terms of settlement were entered into apparently leading to those orders but it is unnecessary to refer to those terms.  The second defendant having failed to prove or renounce, the matter returned to court, a number of affidavits were filed by Mr Peter Halliday and submissions were made to the Court partly on 15 December when I made certain orders, which I have since withdrawn in order to give Mr Halliday a full opportunity to put his submissions to the Court, and that is what has occurred today.

1. The order sought by the plaintiff today is an order that the plaintiff be granted letters of administration with the will annexed and various consequential orders are sought.  The second defendant today said that he now wished to prove the last will dated 10 July 1995 and that he intended to instruct Mr Perry of Perry Weston Solicitors, of Blackburn, to apply for probate on his behalf.  The plaintiff opposed that course and submitted that it was inappropriate either for the court to appoint Mr Peter Halliday as executor or to permit him to apply for probate and that rather the plaintiff should be granted letters of administration with the will annexed.

1. The basis of the plaintiff’s contention was that the second defendant was unsuitable to carry out the duties of executor of the estate, first having regard to the lengthy delay which had taken place in making any application for probate, given that nearly four years had elapsed without the second defendant or the other executors taking any steps to obtain probate.

1. Secondly, the plaintiff relied on what was referred to as the unsatisfactory and bizarre attitude to the will and to his duties as executor by the second defendant. 
   Mr Halliday responded to that by saying that all the executors had agreed with him, it was what the deceased had wanted and that there was extrinsic evidence as to what she wanted.  He referred to affidavit material which indicated that the executors were all agreed and that he had invited legal opinions to the contrary but none had been provided.  Finally, Mr Halliday submitted that there would be a great saving in costs and delay if he was appointed as executor rather than the plaintiff as administrator, a submission which I think lies ill in his mouth, having regard to the delays which have already occurred, and I am unable to see how the costs would be greater and the delay would be greater if the plaintiff were appointed administrator.

1. In my opinion the submissions of the plaintiff should be accepted.  In my opinion Mr Peter Halliday, the second defendant, is unsuitable to be an executor of this estate.  His delay in applying for probate is very lengthy, his failure to comply with the order of Justice Byrne is clear, his bizarre attitude to the duties of an executor is exemplified by the material to which counsel for the plaintiff has referred.

1. In my opinion it is in the interests of all beneficiaries that this estate be wound up and distributed as soon as possible and it is not satisfactory either, to appoint Mr Halliday today, a matter which is not sought in any event, or to permit him to go off and instruct solicitors to apply for probate.