In the estate of Caggiano
[2023] ACTSC 156
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the estate of Caggiano |
Citation: | [2023] ACTSC 156 |
Hearing Date: | 22 June 2023 |
DecisionDate: | 28 June 2023 |
Before: | Curtin AJ |
Decision: | (1) Order that Benigno Caggiano be appointed administrator of the will of the late Antonio Caggiano in place of Nicolina Caggiano, deceased. (2) Order that the land [redacted], at Deakin, ACT and all the property and assets subject to the trusts of the will of the late Antonio Caggiano do vest in Benigno Caggiano upon the trusts of the said will as far as they now exist and are capable of taking effect. (3) Order that service of the Application in Proceeding filed 5 May 2023 on the executor named in the will of the late Antonio Caggiano, deceased, be dispensed with. (4) Order that Benigno Caggiano’s costs on the indemnity basis be paid out of the estate of the late Antonio Caggiano, deceased. (5) Direct the file be remitted to the Registrar for completion of the grant of administration in accordance with the Rules of the Court. (6) Direct Benigno Caggiano to file accounts. |
Catchwords: | WILLS AND ESTATES – application to remove existing executor and appoint new administrator – administrator appointed |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 3091 Administration of Probate Act 1929 (ACT) s 32, 43A |
Cases Cited: | Re Kilby & Ors [2016] NSWSC 1433 |
Parties: | Benigno Caggiano ( Applicant) |
Representation: | Counsel J Harris ( Applicant) |
| Solicitors O’Connor Harris & Co ( Applicant) | |
File Number: | PRO 716 of 2011 |
CURTIN AJ:
Introduction
This is an application for the removal of an existing executor in an estate and the appointment of a new administrator.
Background
Antonio Caggiano married Nicolina Caggiano and they had three sons, Benigno, Saverio and Pasquale, and a daughter, Carmelina.
Without any disrespect to those involved, I shall refer to the relevant members of that family by their first name for ease of reference.
Carmelina, predeceased Antonio and Nicolina.
Antonio died on 4 September 2011, and Nicolina died on 28 September 2022.
Antonio’s will dated 26 April 1989 appointed Nicolina as his executor, and Benigno as alternate executor should Nicolina predecease Antonio.
Antonio’s estate consisted of only one substantial asset, being his and Nicolina’s marital home in Deakin, ACT. The home was registered in Antonio’s name only.
Antonio’s will bequeathed the whole of his estate to Nicolina for life and then to all of his children in equal shares.
Probate of Antonio’s will was granted to Nicolina on 15 December 2011.
Nicolina continued to reside in the home at Deakin, but she did not complete her duties as executor of Antonio’s will by transferring the title of the home out of Antonio’s name.
Nicolina then died some eleven years after Antonio on 28 September 2022.
Nicolina’s will dated 7 June 2012 appointed her three sons as her executors. Other than specific bequests of three items of personality of obvious sentimental value, Nicolina left her estate to her three surviving sons equally.
The problem that arises is that the home in Deakin remains in Antonio’s name but the person with legal authority to deal with that property, being his executor Nicolina, has also died.
Benigno, with the consent of his brothers, has brought an application under r 3091(1)(e) of the Court Procedures Rules 2006 (ACT) for the removal of Nicolina as executor of Antonio’s estate, and an application under 3091(1)(g) and (2) of the Rules for the appointment of Benigno as the new administrator of Antonio’s estate.
Those rules say:
3091 Application—div 3.1.9
(1) This division applies to the following proceedings:
…
(e) a proceeding for the removal of an executor;
…
(g) any other proceeding in relation to which the court makes an order under subrule (2).
(2) On application by an interested person or on its own initiative, the court may, at any stage of a proceeding started in the court in relation to an estate—
(a) order that a proceeding continue as if it were a proceeding to which this division applied; and
(b) give the directions it considers appropriate for the conduct of the proceeding; and
(c) make any orders it considers appropriate.
Also relevant are ss 32(1), (2)(c)(iii), (3), (4) and (7), and s 43A of the Administration of Probate Act 1929 (the Act). Those provisions say:
32Discharge or removal of executors and administrators
(1) In this section:
administrator includes an administrator appointed under this section.
NoteAdministrator includes any person to whom administration is granted (see dict).
executor means an executor who has been granted representation.
(2) This section applies if an executor or administrator—
…
(c) after the grant of representation or appointment—
…
(iii) is incapable of acting in the office.
(3) The Supreme Court may order, on the terms and conditions it considers appropriate—
(a) the discharge or removal of the executor or administrator (the old executor or administrator); and
(b) the appointment of someone else as administrator (the new administrator) in place of the old executor or administrator.
(4) For subsection (3), the Supreme Court may make—
(a) orders for vesting the estate in the new administrator; or
(b) orders about accounts; or
(c) any order about costs.
…
(7) If the Supreme Court considers it necessary, notice of an application for the discharge or removal of the old executor or administrator may be served on anyone the Supreme Court directs.
43A Executor of executor
If—
(a) probate of the will of a testator has been granted to a person (in this division called the original executor) as the sole executor, or as 1 of the executors, of the will of the testator; and
(b) the original executor was, immediately before his or her death, the sole, or the last surviving, executor of the will of the testator; and
(c) probate of the will of the original executor is granted to the executor, or 1 of the executors, (the succeeding executor) of the will of the original executor;
the succeeding executor becomes, on the grant of probate of the will of the original executor—
(d) the executor of the will of the testator; and
(e) the executor of the will of any other testator of whose will the testator was, immediately before his or her death, the executor under the application, or successive applications, of this section.
Decision
The short point is that something must be done in order to confer authority on someone to deal with the house which remains registered in Antonio’s name in circumstances where Antonio’s executor has died.
There are two possible options.
The first is for the three sons to seek probate of Nicolina’s will. Upon the grant of probate, the three sons would, by dint of s 43A, also become executors of Antonio’s will. The background to the equivalent provision in NSW and its historical roots was described by Slattery J in Re Kilby & Ors [2016] NSWSC 1433.
The second option is to remove Nicolina as executor of Antonio’s will and appoint someone in her stead to complete the duties of executor of Antonio’s estate and transfer the home to his three sons.
The three surviving sons seek the second option. Benigno seeks to be appointed as administrator of his father’s will, and his two brothers consent.
Benigno was the nominated alternate executor to his mother under Antonio’s will.
I agree that the orders sought should be made. There is little practical difference between the two options referred to above. On the evidence, Nicolina had no assets of any significance and the value of her estate would not otherwise justify the cost of seeking probate of her will. There is no detriment to anyone by choosing the second option rather than the first, and the two other beneficiaries consent to the Orders. Under both parents’ wills, the three sons are to share the house equally.
It is obvious that Nicolina is incapable of acting in her office as executor (s 32(2)(c)(iii) of the Act) and should be removed as executor pursuant to s 32(3)(a) of the Act. Benigno should be appointed administrator pursuant to s 32(3)(b) of the Act. For completeness, Benigno will be ordered to file accounts as administrator of Antonio’s will.
Orders
I make the following orders:
(1)Order that Benigno Caggiano be appointed administrator of the will of the late Antonio Caggiano in place of Nicolina Caggiano, deceased.
(2)Order that the land [redacted], at Deakin, ACT and all the property and assets subject to the trusts of the will of the late Antonio Caggiano do vest in Benigno Caggiano upon the trusts of the said will as far as they now exist and are capable of taking effect.
(3)Order that service of the Application in Proceeding filed 5 May 2023 on the executor named in the will of the late Antonio Caggiano, deceased, be dispensed with.
(4)Order that Benigno Caggiano’s costs on the indemnity basis be paid out of the estate of the late Antonio Caggiano, deceased.
(5)Direct the file be remitted to the Registrar for completion of the grant of administration in accordance with the Rules of the Court.
(6)Direct Benigno Caggiano to file accounts.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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