Helen Rowena O'Brien as Executor of the Will of Jeffrey Charles Hogan v Warburton [No 2]
[2013] WASC 448
•13 DECEMBER 2013
HELEN ROWENA O'BRIEN as Executor of the Will of Jeffrey Charles Hogan -v- WARBURTON [No 2] [2013] WASC 448
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 448 | |
| 13/12/2013 | |||
| Case No: | CIV:1662/2011 | 6 DECEMBER 2013 | |
| Coram: | EM HEENAN J | 6/12/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Orders and declarations answering executor's questions to be binding on the 14th defendant | ||
| B | |||
| PDF Version |
| Parties: | HELEN ROWENA O'BRIEN as Executor of the Will of Jeffrey Charles Hogan KERRY JANEENE WARBURTON ANITA-LEE HOGAN JOSHUA KANE HOGAN ANAI TAYLA HOGAN-SMEDLEY by her Guardian ad litem MICHELE ANN KERSHAW MARGARET VINA HOGAN ROBERT KENNETH HOGAN MARGARET DIANNE MARTIN KEVIN RAYMOND HOGAN LEON RODNEY WARBURTON JUSTIN NEIL WARBURTON DANNIKA PAIGE WARBURTON LESLIE JOHN MARTIN CHRISTOPHER DAVID MARTIN MICHAEL KENNETH MARTIN by his Guardian ad litem GLENDA ANN REID |
Catchwords: | Wills Construction Consent to judgment by infant defendant Independent representation Dispensing with need for counsel's opinion Appointment of trustee to receive infant's legacy |
Legislation: | Nil |
Case References: | O'Brien v Warburton [2012] WASC 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
AND
The will of Jeffrey Charles Hogan (Deceased)
- Plaintiff
AND
KERRY JANEENE WARBURTON
First Defendant
ANITA-LEE HOGAN
Second Defendant
JOSHUA KANE HOGAN
Third Defendant
ANAI TAYLA HOGAN-SMEDLEY by her Guardian ad litem MICHELE ANN KERSHAW
Fourth Defendant
MARGARET VINA HOGAN
Fifth Defendant
ROBERT KENNETH HOGAN
Sixth Defendant
MARGARET DIANNE MARTIN
Seventh Defendant
KEVIN RAYMOND HOGAN
Eighth Defendant
LEON RODNEY WARBURTON
Ninth Defendant
JUSTIN NEIL WARBURTON
Tenth Defendant
DANNIKA PAIGE WARBURTON
Eleventh Defendant
LESLIE JOHN MARTIN
Twelfth Defendant
CHRISTOPHER DAVID MARTIN
Thirteenth Defendant
MICHAEL KENNETH MARTIN by his Guardian ad litem GLENDA ANN REID
Fourteenth Defendant
Catchwords:
Wills - Construction - Consent to judgment by infant defendant - Independent representation - Dispensing with need for counsel's opinion - Appointment of trustee to receive infant's legacy
Legislation:
Nil
Result:
Orders and declarations answering executor's questions to be binding on the 14th defendant
Category: B
Representation:
Counsel:
Plaintiff : Ms M R Bloch
First Defendant : Mr D R Kilpatrick
Second Defendant : Ms G M Anderson
Third Defendant : Ms A Q H Bolger
Fourth Defendant : Mr S K Shepherd
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : Mr D C Rice
Solicitors:
Plaintiff : Merle Bloch
First Defendant : Butlers
Second Defendant : Irdi Legal
Third Defendant : Lawton Lawyers
Fourth Defendant : Tottle Partners
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : Submitting appearance
Ninth Defendant : Submitting appearance
Tenth Defendant : Submitting appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : Griffiths Rice & Co
Case(s) referred to in judgment(s):
O'Brien v Warburton [2012] WASC 82
1 EM HEENAN J: The originating summons in these proceedings sought a series of orders and declarations concerning the validity of portions of the will of Jeffrey Charles Hogan (deceased), late of 17 Colonial Gardens, Mosman Park, who died on 8 December 2010. Mr Hogan left a large estate with assets for distribution estimated to be worth in the order of $30 million to $35 million. There were many questions and uncertainties arising from the will which had been proved and probate of which had been granted to Helen Rowena O'Brien, the plaintiff in these proceedings.
2 The originating summons sought orders relating to 26 separate questions which had arisen. I heard that matter in November 2011, and for separate reasons dated and delivered 14 March 2012, I answered the questions and made a series of declarations and other orders. The judgment, declarations and orders then entered bound all the parties to the proceedings, with the exception of the 14th defendant, Michael Kenneth Martin, who although served was an infant, but who had not had a guardian ad litem appointed to represent him in the proceedings.
3 Accordingly, in the reasons which I published, O'Brien v Warburton [2012] WASC 82, I averted to his position and observed that the inevitable consequence was that the action, so far as it concerned him, would have to be adjourned; that the orders and declarations then made would not be binding against him; and I gave directions that the plaintiff apply for the appointment of a suitable guardian ad litem for the 14th defendant, and upon such a guardian being appointed that the matter should be relisted for directions as to whether, and if so how, the proceedings should continue against the 14th defendant so represented.
4 In the time which has passed since March of 2012, the 14th defendant's aunt, Glenda Ann Reid, has been appointed as his guardian ad litem, and has been joined in these proceedings as representing the infant. The guardian ad litem has engaged independent solicitors, and has filed an affidavit sworn 17 September 2013 in which she indicates that, on behalf of the infant, she wishes to agree to orders being made binding him, in the same terms as the orders made after the trial against the plaintiff and the other defendants.
5 That application is supported by an affidavit of the solicitor for the 14th defendant, and the matter now comes before the court, in effect, as an application to approve a compromise of the action as against the 14th defendant in terms which involve the same orders and declarations being made in respect of the 14th defendant's interests, as have been made earlier against all the other parties. The application is coupled with an application that any need for independent counsel's opinion for such a compromise of the infant's claim be dispensed with under the provisions of O 70 of the Rules of the Supreme Court for reasons which I shall now consider.
6 The question in the originating summons requiring a determination of the rights of the 14th defendant was in relation to a testamentary gift of $500,000 to a group of beneficiaries described as 'Dianne Hogan/Martin & Family'. The constituent members of that family I held to be the 14th defendant's mother, Margaret Dianne Martin, the seventh defendant; his father, Leslie John Martin, the 12th defendant; his brother, Christopher David Martin, the 13th defendant; and, of course, the 14th defendant, the infant, Michael Kenneth Martin. For reasons which I gave earlier, I was satisfied that the proper construction of the will required that the legacy of $500,000 should be distributed equally to the four members of the family, that is, including the mother and the father and the two children, and I made orders and declarations to that effect, binding all of them except Michael.
7 The question now is whether or not it is in Michael's interests to consent to orders and declarations to the same effect which will bind him.
8 There was also another issue in the action as to whether or not there was a partial intestacy because of a failure specifically to dispose of the residuary estate of the deceased. For reasons which I gave, I was satisfied that there was no partial intestacy, and that there were indications that the testator intended to dispose of his entire estate, and I pointed to the features of the will to that effect, and identified the residuary beneficiaries.
9 None of the residuary beneficiaries was Michael Kenneth Martin, the 14th defendant, and I am satisfied that there is no arguable prospect that he could be regarded as a residuary beneficiary. If, however, there had been a partial intestacy, the question is to whom the intestate portion of the estate should be distributed. The answer to that is provided by s 14 of the Administration Act, providing for lineal descendants of the deceased, including his children and grandchildren, who are parties to the action.
10 There is, therefore, no possible entitlement of the 14th defendant, the nephew of the deceased, on a total or partial intestacy. There is no circumstance that I can identify or contemplate in which Michael Kenneth Martin would have any claim to the estate, other than to the specific bequest of $500,000 which I have already mentioned. I am also satisfied that there are no reasonable prospects for anybody to contend on his behalf that he takes anything more than an equal one-fourth share in that bequest, as I have previously declared.
11 In this regard, it is particularly significant that by his present counsel and guardian he accepts that that is the position. I am, therefore, satisfied that the same orders which were made in the proceedings after trial should now be made in the remaining adjourned portion of the action against the 14th defendant, and I will make orders for directions to that effect.
12 There is one additional matter, and that is whether or not a trustee or trustees should be appointed to receive Michael Kenneth Martin's share of that bequest from the executor, and to hold it upon trust until he shall obtain his majority on his 18th birthday.
13 It would be convenient for the executor to be able to pay that legacy, plus any interest, to some person authorised to give a receipt on behalf of the 14th defendant, and for the trustee or trustees so appointed to have the control and responsibility for that money on Michael's behalf, until he comes of age. Although it is not the subject of the summons now before me, I am satisfied that an order appointing a trustee should be made. Potential trustees are his mother and father, or one or other of them.
14 Counsel for Michael, by his guardian, has instructions to seek that his mother be appointed as trustee. There being no difference of interest between herself and her husband, the 12th defendant, but she being the sister of the deceased, that seems to be an entirely proper and reasonable choice. I will, therefore, declare and order that the seventh defendant, Margaret Dianne Martin, be appointed trustee of the interests of the 14th defendant, Michael Kenneth Martin, during his minority to receive, hold and manage the 14th defendant's share in the bequest of $500,000 which I have already described, and that she have liberty to apply to the court for any directions concerning that trust.
15 Finally, I am satisfied that this question concerning Michael Kenneth Martin's interest and associated matters all form part of the costs of the administration of this estate, and should be met by the estate, the whole controversy being due to problems associated with this unusual will.
16 I, therefore, direct that the costs of the plaintiff and the 14th defendant associated with these proceedings, the appointment of the guardian ad litem for the 14th defendant, and this application and any reserved costs be paid by the executor out of the estate to persons entitled, namely the plaintiff and the 14th defendant. There will be orders and declarations to that effect.
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