Hill v Hill

[2023] NSWSC 612

Supreme Court

New South Wales

Medium Neutral Citation:

Hill v Hill [2023] NSWSC 612

Hearing dates:

11 May 2023 and 31 May 2023

Date of orders:

31 May 2023

Decision date:

31 May 2023

Jurisdiction:

Equity

Before:

Hallen J

Decision:

See Paragraph [43]

Catchwords:

SUCCESSION – Adult children appointed as substitute executors - Probate of the Will not being sought by one – Application brought by other for grant of administration with the deceased’s Will annexed to be made to independent administrator – Where due and proper administration of deceased’s estate not able to be completed – Respondent is non-active party who has rarely appeared, who has not filed an appearance, or any affidavits and who did not appear at the hearing – Court concerned with the due and proper administration of the deceased’s estate according to the terms of her Will and to promote the orderly, efficient, and proper, administration of the estate according to the terms of the Will – Application granted

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Probate and Administration Act 1898 (NSW)

Succession Act 2006 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Allesch v Maunz (2000) 203 CLR 172

Knorr v CSIRO (No 3) [2012] VSC 529

Mavrideros v Mack (1998) 45 NSWLR 80

Category:

Principal judgment

Parties:

Richard Leslie Hill (applicant)
Timothy Hill (respondent)

Representation:

Counsel:
A Flick (applicant)

Solicitors:
Breene & Breene Solicitors (applicant)

File Number(s):

2022/207498

Publication restriction:

Nil

Judgment – EX TEMPORE (REVISED)

Introduction

1. By amended notice of motion, filed on 15 December 2022, the applicant, Richard Leslie Hill, for reasons to which I shall come, now seeks an order that letters of administration with the Will dated 14 November 1996 of Julie Anne Hill (the deceased) be granted to an independent administrator, Mark Desmond Bolster.

2. The respondent named in the amended notice of motion is Timothy Robert Hill. He has not filed an appearance and, as will be read, has appeared on only two of the many directions hearings that have occurred. He did not appear at the hearing on 11 May 2023 or today.

3. The deceased died on 31 March 2021 leaving property in New South Wales.

4. The original of the Will dated 14 November 1996 of the deceased has been delivered to the Court and remains in the Court file. (The Court had made an order for the delivery of the original Will addressed to solicitors in whose possession it was on 22 July 2022, and the order had been complied with.)

5. It was necessary to grant leave to the applicant to amend the date of the Will as sought in the amended notice of motion, as the Will referred to therein was said to be 14 November 1986. It was also necessary to permit the amendment of the identity of the independent administrator to be appointed. Neither amendment, in my view, could cause any prejudice to the respondent.

6. It appears that the deceased’s Will was executed in accordance with s 6 of the Succession Act 2006 (NSW), in that it is in writing and was signed by the deceased; her signature was made or acknowledged in the presence of two or more witnesses present at the same time; and both of those witnesses attested and signed the Will in the presence of the deceased.

7. The executor and sole beneficiary named in the deceased’s Will was Robert Charles Hill, the deceased’s husband (Clause 1), but he predeceased her having died on 5 June 2020. Both the applicant and the respondent are the, now adult, children, of the deceased, the substituted executors named in the deceased’s Will (Clause 2(a)), and the sole beneficiaries, as tenants in common in equal shares, of the whole of her estate (Clause 2(b)).

8. I shall, hereafter, for convenience and without undue familiarity, refer to the family members by his first name.

9. Richard relies on s 75 of the Probate and Administration Act 1898 (NSW), r 13.1 or r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and s 61(3)(g) of the Civil Procedure Act 2005 (NSW) as the bases of the application.

The estate of the deceased

10. The deceased’s estate has a value of approximately $322,571. The principal asset of the estate is real property situated in Guyra, which I understand to be a town situated between Armidale and Glen Innes on the Northern Tablelands in the New England region of New South Wales.

11. Timothy resides in the Guyra property. He does not appear to have a legal right to remain in occupation, and he has not advanced any basis for doing so. There is no evidence that he has offered to pay any occupation fee.

Some background facts

12. The deceased’s body has been in the custody of NSW Pathology in Forensic Medicine. Apparently, NSW Pathology charges a daily fee of $50 for the care and storage of a deceased’s body. As at June 2022, the fees said to be payable were about $17,500. At the hearing, the Court was informed, by counsel, that “the fee has been paused for some six months to allow the proceedings to go on”: Tcpt, 31 May 2023, p 3(9-10).

13. Between May and September 2021, Richard took steps to organise a cremation, going so far as to complete the requisite documents and to pay for the cremation service. He asserts that the day before the scheduled release of the body, he was informed that Timothy did not consent to the deceased’s body being released. Apparently, however, on 28 September 2022, Timothy consented to the release of the body. What, if any steps have been taken to obtain the release of the deceased’s body is not clear on the evidence, and the reasons for Timothy’s opposition was not made clear.

14. Needless to say, the estate does not have funds available to pay the storage charges.

The history of the proceedings

15. It is sufficient to note, for the purposes of the amended notice of motion, that following correspondence sent on 24 August 2021, by Richard’s solicitors, to Timothy, he responded in terms that included:

“My brother is NOT to contact me Solely[sic] in any way shape or form. Period.”

16. On 5 November 2021, Richard’s legal representatives, again, wrote to Timothy. Relevantly, the letter provided:

“Under your late Mother’s Last Will and Testament dated 14 November 1996, you have been appointed as an Executor of her Estate together with our client.

For your information, we note that Executors have a duty to arrange the funeral and burial or cremation of the deceased. Of particular concern to our client is that you have withheld consent to authorize the release of your late Mother’s body to a funeral director.

A final Death Certificate cannot be issued until the body has been released to a funeral director and in the absence of a final death certificate, an Application for a Grant of Probate in the Supreme Court of New South Wales cannot be lodged.

Given that a Grant of Probate is required for the purposes of administering the Estate, it follows that this matter simply cannot progress in the absence of your consent to release the body.

Our client wishes to progress this matter and attend to the administration of the Estate without further delay. Please confirm that you are agreeable for your Late Mother’s body being released.

We await your response by no later than 4:00pm Friday 26 November 2021.

In the event that we do not receive a response within the specified timeframe, we are instructed to forthwith file an application in the Supreme Court of New South Wales under Section 75 of the Probate and Administration Act 1898 (NSW) for an Order that you be passed over an executor.”

17. On 13 January 2022, Richard received a default notice in respect of a mortgage debt secured on the Guyra property.

18. On 14 February 2022, Richard’s solicitors wrote to Timothy proposing that Richard obtain a grant of probate, reserving to Timothy the right to prove the Will at a later date. There was no response to that letter.

19. Richard filed a Summons seeking that relief on 15 July 2022. He filed a notice of motion on 25 October 2022, and filed an amended notice of motion, seeking the appointment of an independent administrator, in the alternative, on 15 December 2022.

20. There is more than enough evidence to satisfy me that Timothy has been served with the amended notice of motion and the affidavits in support, including, most recently, an affidavit sworn 15 May 2023 of Mr Bolster: see affidavit of service of Shane Blackman affirmed 21 May 2023.

21. Despite the time that has passed since the proceedings commenced, Timothy has not filed an Appearance or any affidavits. UCPR Pt 6 r 6.1 provides, relevantly, that except with leave of the Court, a party may not take any step in the proceedings unless the party has entered an appearance. Relevantly, the time limit for the defendant to enter an appearance under UCPR Pt 6 rule 6.10(1)(b)(i) is on, or before, the return day stated in the summons.

22. As stated, the matter has been listed on many occasions in the Succession List. When Timothy appeared on 14 November 2022, the Court made the following directions for evidence to be filed and noted:

“the Defendant has been informed that in circumstances where, as here, the nominated executors are unable to act together to administer the estate, that the costs of the notice of motion will or may very well depend upon the order made and that he may be at risk as to costs in respect thereof.”

23. On 12 December 2022, there was, once again, no appearance by Timothy.

24. The matter was mentioned on several occasions again until 7 March 2023, when Timothy appeared. On that date, the matter was adjourned to 28 March 2023 to allow him to obtain legal assistance.

25. On 28 March 2023, Timothy did not appear, and the matter was placed in a call over on 17 April 2023 for the purpose of obtaining a hearing date with an estimated duration of one half day. The matter was then listed for hearing on 11 May 2023.

26. In relation to the other matters that occurred during the course of the proceedings, they are summarised in the written submissions of counsel. It is not necessary to repeat those matters. They clearly demonstrate Timothy’s conduct in relation to the proceedings.

27. On 11 May 2023, the matter was called and there was no appearance by, or on behalf of, Timothy. Having been satisfied by the evidence read, that Timothy had been served with the relevant documents, and that he ought to have been aware of the hearing date, the Court proceeded to hear the matter.

28. Richard proposed to appoint Ms N Turnbull, a solicitor in the ACT, as an independent administrator. However, the Court indicated to counsel that as she was outside the jurisdiction, she might not be able to obtain a grant of administration: Tcpt, 11 May 2023, p 7(7-25).

29. In the circumstances, it then became necessary to adjourn the hearing and grant leave to Richard to file and serve an affidavit nominating an independent administrator within the jurisdiction of the Court, together with a written consent of that proposed independent administrator.

30. This was subsequently done with Mr Bolster, an accredited specialist in Wills and estates, being nominated, and consenting to his appointment as the independent administrator: Affidavit, Mark Bolster, 15 May 2023; Consent to Act, filed 17 May 2023.

31. The matter was then adjourned until today. Again, the matter was called, and there was no appearance by, or on behalf of, Timothy. Having been satisfied by the evidence read, that he had been served with the relevant documents, and that he ought to have been aware of the adjourned hearing date, the Court proceeded to hear the matter.

Conclusion

32. UCPR r 29.7 applies when a trial is called on. If any party is absent, the Court may proceed with the trial generally or so far as concerning any claim for relief in the proceedings or may adjourn the trial. Having been satisfied that Timothy is relevantly absent, the Court proceeded with the trial. I concluded that there was no utility in adjourning the matter again, in the absence of any reasons for him not having appeared at the hearing. There was no reason to believe that each would be more likely to appear on any subsequent occasion to which the hearing was adjourned, than on that occasion.

33. The Court is not required to indefinitely delay the completion of the hearing in these proceedings in the hope that each of the Defendants might change his mind and appear: Allesch v Maunz (2000) 203 CLR 172, 186, 189-191; [2000] HCA 40, at [38]-[40] (Kirby J). The right to have the opportunity to be heard is not a right to frustrate the hearing of proceedings by not attending thereat. Justice requires consideration to be given to all the parties.

34. Section 75 of the Probate and Administration Act applies where an executor named in the Will has neglected or refused to prove the Will or to renounce probate within three months from the date of death.

35. The history of the matter, as set out above, demonstrates the delay that has occurred since the death of the deceased. It is significantly more than 3 months since the death of the deceased.

36. As was written in Knorr v CSIRO (No 3) [2012] VSC 529, by Beach J at [28]:

“Again, as was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd ‘[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices’. Consistently with the principles enunciated in the Civil Procedure Act, Mr Knorr cannot be permitted to continue to subject the parties to this proceeding to significant cost and inconvenience and to add pointlessly to the load on the Court's already limited resources.” (Omitting footnotes).

37. The evidence clearly demonstrates that Richard and Timothy, as substituted executors, do not get along, that they cannot meaningfully communicate, and that Timothy does not wish to participate in obtaining a grant of Probate. I am more than satisfied that the procedural history of this case illustrates the numerous opportunities given to Timothy to be heard. I am also satisfied that his actions, by not participating in a meaningful way, have delayed the administration of the deceased’s estate.

38. In determining the application, it is necessary for the Court to have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate. The Court’s principal concern is to promote the orderly, efficient, and proper, administration of the estate according to the terms of the Will or under the operation of the rules of intestacy: Mavrideros v Mack (1998) 45 NSWLR 80, at 105-107 (Sheller JA, with Priestley and Beazley JJA agreeing).

39. Having regard to the evidence and the submissions, I am satisfied that the due and proper administration of the deceased’s estate according to the terms of her Will requires an order that administration in respect of the deceased’s Will to be granted. It would be in the best interests of the administration of the estate for an independent administrator to be appointed. In this way, Timothy will not receive any direct communication from Richard (as he requested) and Mr Bolster, as the independent administrator, should apply for the grant of administration with the deceased’s Will annexed. Upon its receipt, he may take such steps as are necessary, including obtaining possession of the Guyra property, and selling that property, to enable the completion of the administration of the deceased’s estate without further delay.

40. In my view, the order appointing Mr Bolster as the independent administrator is just. More than enough time has passed since the death of the deceased. Timothy should not, by not appearing or participating in the proceedings by taking no steps to obtain a grant of Probate with Richard, or otherwise, obtain a procedural advantage and obtain a further opportunity to remain in occupation of the Guyra property.

41. Costs are in the discretion of the Court. The only fetter on the exercise of that discretion is that it must be exercised judicially and by reference to considerations relevant to the proceedings.

42. These proceedings were necessary because of Timothy’s non-participation in a meaningful way in dealing with Richard. However, Timothy should not be required to pay all the costs that have been incurred. Richard’s costs, calculated on the ordinary basis, should be paid out of Timothy’s share of the estate, such costs to be limited to an appearance for one half day for the hearing, together with the preparation and service of documents in the proceedings necessary for the Court to make the orders and notations that have been made today and counsel’s fees.

43. In the circumstances, the Court:

1. Notes that there are special circumstances, namely that it is in the best interests of the administration of the estate of Julie Anne Hill (“the deceased”), for an independent administrator to be appointed.

2. Notes that Mark Desmond Bolster of Bolster & Co Pty Ltd has been nominated by the Applicant to be appointed as the independent administrator of the deceased’s estate.

3. Notes that Mark Desmond Bolster has consented to that appointment upon the basis that he will not charge commission.

4. Orders, subject to compliance with the Probate rules of Court, that Letters of Administration with the Will dated 14 November 1996 of the deceased annexed, be granted to Mark Desmond Bolster.

5. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

6. Orders that the administration bond and sureties be dispensed with.

7. Directs that the solicitor for the Applicant is to inform Mr Bolster within 10 days of the date of the making of these orders and notations:

1. That these orders and notations have been made and provide a copy thereof to him; and

2. Of the assets and liabilities of the estate known to the Applicant.

8. Directs that a copy of the orders, when entered, also be served upon the Respondent, Timothy Hill within 7 days of the orders being made and entered.

9. Order that Mr Bolster be entitled:

1. To make and be paid from the estate of the deceased all usual and proper charges at the usual hourly rates that are charged by the legal practice in which he is engaged on the usual terms as to payment of that practice:

1. For his work as administrator or trustee of the estate, or both;

2. For the professional and non-professional services rendered by him or that legal practice in the administration of the estate or the trusts of the will, or both;

2. To engage the services of any other legal practitioner, accountant, valuer or other professional adviser in relation to the administration of the estate where he considers it necessary to do so, and to pay from the estate any costs incurred in having those services provided.

10. Orders that Mr Bolster, as administrator, shall have the powers of a trustee for sale in relation to the assets of the estate.

11. Orders that the Applicant’s costs, calculated on the ordinary basis, be paid by the Respondent out of the Respondent’s share of the estate, such costs to be limited to the preparation and service of documents in the proceedings necessary for the Court to make the orders and notations that have been made today, an appearance for one half day for the hearing and counsel’s fees.

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Decision last updated: 09 June 2023