In the Estate of Audrey Mary Harvey

[2024] ACTSC 299

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Audrey Mary Harvey

Citation: 

[2024] ACTSC 299

Hearing Date: 

27 September 2024

Decision Date: 

27 September 2024

Before:

McWilliam J

Decision: 

Independent executor appointed; caveat removed.

Catchwords: 

WILLS, PROBATE & ADMINISTRATION – Application for appointment of independent executor – where jointly named executors are in dispute about who should be granted probate and how to administer the estate – where deceased died more than 15 months ago and probate has not yet been granted – where caveat lodged against grant of probate – whether it is just that an independent executor administer the estate – Court Procedure Rules 2006 (ACT) r 3114 – Administration and Probate Act 1929 (ACT) s 25.

Legislation Cited: 

Court Procedure Rules 2006 (ACT) r 3114

Administration and Probate Act 1929 (ACT) s 25

Cases Cited: 

Jurkiewicz v Jurkiewicz and The Public Trustee for the ACT [2013] ACTSC 89

Parties: 

Helen Denise Wilson (Plaintiff)

Michael James William Wilson (Defendant)

Representation: 

Counsel

A Costin (Plaintiff)

W Sharwood (Defendant)

Solicitors

KJB Lawyers (Plaintiff)

Farrar Gesini Dunn (Defendant)

File Number:

PRO 1095 of 2023

McWILLIAM J:          

1․This matter involves an application before the Court dated 27 September 2024. It has been brought by the plaintiff, Ms Helen Wilson, who is one of the daughters of the late Audrey Mary Harvey (deceased) who died on 23 May 2023.  She is one of three named executors in the deceased’s will dated 2 November 2015 (the Will).  She has applied for a grant of probate of the will (proceeding number PRO1095/2023).

2․The defendant, Mr Michael Wilson, is one of the two other named executors and has opposed the grant of probate to the plaintiff.  The defendant’s position is supported by that of the third sibling and third named executor, Ms Sharon Wilson, and counsel appearing for the defendant informed me that he represented her interests as well as those of the defendant.

3․The plaintiff’s application seeks relief pursuant to s 25 of the Administration and Probate Act 1929 (ACT), which is in the following terms:

Failure of executor to prove will

(1)     This section applies if the person named as executor in a will—

(a)      fails to prove the will or renounce probate within 6 months after the later of the following:

(i)     the date of the testator's death;

(ii)     the date the executor turns 18 years old; or

(b)    is unknown or cannot be found.

(2)The Supreme Court may, on application under the rules, make an order for administration of the estate, and any other orders, the court considers appropriate.

4․The relevant rule giving effect to that section is r 3114 of the Court Procedure Rules 2006 (ACT).  On an application being made by a person interested in the estate, the court may make any order in relation to the administration of the estate that the court considers just.

5․The relief sought here is that a solicitor in legal practice in the Territory, Ms Katie Elizabeth Miriam Binstock, of Thomson Geer Lawyers, be appointed as administrator of the deceased’s estate, and that the cost of the application be payable out of the estate.

6․The applicable principles have been discussed by Master Harper in the case of Jurkiewicz v Jurkiewicz & and The Public Trustee for the ACT [2013] ACTSC 89 (Jurkiewicz) and I have applied those principles here.  In short, the law recognises that the named executors are ordinarily entitled to carry out the executorial role and that the exercise of the jurisdiction to discharge an executor, whether statutory or inherent, keeps in view the due and proper administration of the estate and the interests of the parties beneficially entitled. A number of the cases are set out by Master Harper in Jurkiewicz at [19]-[22] and it is unnecessary to set out all the examples referred to by his Honour.

7․In the present case, I am satisfied that the copy of the will that is annexed to the application for probate names the deceased’s three children, being the plaintiff, the defendant and their sister, as the joint executors of the estate.  The plaintiff is therefore an interested person.

8․15 months have passed since the death of the deceased, and on the evidence before the Court, the siblings remain in disagreement as to various matters, which are unnecessary to set out here.  The disputes are delaying the administration of the estate. However, in broad principle, they each are not opposed to an independent solicitor being appointed, and they had previously agreed upon Ms Binstock as an appropriate person to be named as the administrator.

9․That was the limit of their agreement. The defendant in the proceedings took the view that the administration by an independent solicitor should be pursuant to a number of preliminary steps and certain limits on the administration.  On 18 June 2024, the defendant filed a caveat against the grant of probate to the plaintiff (no. 5 of 2024).

10․It is apparent from the requests that were made and the nature of the conditions that were sought, that the defendant has a concern not about testamentary capacity or the Will being valid, but about the proper administration of the estate by his sister (and whether the estate’s property in Greenway can be appropriated to a beneficiary as part of their share of the Estate), the ability for any costs that have been incurred up to this point on behalf of the estate to be reimbursed and the disposal of personal property of the deceased. Those matters can all be taken up with the neutral and independent executor that I propose to appoint.

11․I consider that it is very much in the interests of administering the estate that the probate progress and the appointment of a competent independent person, legally qualified and with experience in this area of the law is the best way to achieve that. It is certainly in the interests in the beneficiaries of the estate that the parties move past their current impasse.

12․That being the case, there is currently a caveat that has been lodged against the grant of probate, which replaced a previous caveat (no. 11 of 2023) which was lodged on 23 November 2023.  The application that was originally before the Court (dated 25 July 2024) was for the removal of that caveat so as to enable the grant of administration to be made, at least to the plaintiff in the first instance.  Having heard argument from the parties earlier today, I consider that the appointment of Ms Binstock will alleviate the need for the continued presence of the caveat and for that reason, I propose to direct that the caveat be removed as an ancillary facilitative order in furtherance of giving effect to the appointment of Ms Binstock.

13․In making that decision or finding, I have given consideration to the fact that the caveat (and the one before it) was placed against the grant of probate many months ago.  If there was going to be any agitation of an alternate means of progressing the grant of probate, then the defendant has had ample opportunity to take that course (for example, by seeking to be jointly appointed himself).  The due and proper administration of the estate and the interests of the parties beneficially entitled, being the siblings, are best served if someone independent takes control of the estate administration going forward. 

Orders

14․Accordingly, the Court makes the following orders:

(1)Pursuant to r 3114(5) of the Court Procedures Rules (2006) (ACT), the Court appoints Ms Katie Elizabeth Miriam Binstock of Thomas Geer Lawyers as administrator of estate of the late Audrey Mary Harvey, in proceeding PRO 1095 of 2023.

(2)Caveat No. 5 of 2024 dated 18 June 2024 is set aside.

(3)The costs of the applications dated 25 July 2024 and 27 September 2024 are to form part of the expenses of the Estate.

(4)Leave is granted to the executor appointed pursuant to order 1 to approach the registrar for the taking out of a grant of administration (with will annexed) in proceeding PRO 1095 of 2023.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date: