In the Estate of Gwendoline Katherine Wilkinson (No. 2)

[2019] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

In the Estate of GWENDOLINE KATHERINE WILKINSON (NO. 2)

[2019] SASC 45

Judgment of The Honourable Justice Stanley

27 March 2019

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - PASSING OVER OF EXECUTOR AND OTHER MATTERS

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - PUBLIC TRUSTEES AND CURATORS

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - OTHER CASES

Application for the costs of an action seeking an order passing over executors of a deceased’s estate.

The plaintiff is one of three sons of the deceased testatrix and with his brothers, the defendants, was appointed as one of the joint executors in her will. The plaintiff applied for an order passing over the defendants as executors of the estate. On 24 December 2018 this Court granted that application and also ordered that the Public Trustee be granted administration of the estate with the will annexed.

The plaintiff seeks an order that the defendants pay the costs of the application.

Held (per Stanley J):

1.  The order for passing over of the defendants as executors of the estate was not based on any finding of misconduct by any party.

2.  The Court must be careful to avoid deterring executors, acting in good faith, from defending claims made against an estate.

3.  The costs of all parties were to be paid out of the estate.

Public Trustee Act 1995 (SA) s 9, referred to.
Fielder v Burgess [2014] SASC 98; Re Ponikvar (No. 2) [2016] SASC 166; Re Molnar (No. 2) [2016] SASC 159; Roche v Roche (No. 2) [2017] SASC 75, considered.

In the Estate of GWENDOLINE KATHERINE WILKINSON (NO. 2)
[2019] SASC 45

Testamentary Causes Jurisdiction

STANLEY J:

1. In this matter the plaintiff is one of three sons of the deceased testatrix, and with his brothers, the defendants, was appointed as one of the joint executors in her will.  The plaintiff applied for an order passing over the defendants as executors of the estate.

2. On 24 December 2018 I granted the application and made an order for the passing over of the defendants as executors of the estate. I also made an order that the Public Trustee be granted administration of the estate with the will annexed pursuant to s 9 of the Public Trustee Act 1995 (SA).

3. The plaintiff has now sought an order that the defendants pay the costs of the application.  The defendants oppose that application and submit that the Court should order that the costs of all parties be paid by the estate. 

4. The plaintiff contends that the Court should order costs in accordance with the principle that generally costs should follow the event.  He submits this approach is consistent with the admonition in Fielder v Burgess,[1] Re Ponikvar (No. 2),[2] Re Molnar (No. 2)[3] and Roche v Roche (No. 2)[4] that parties to litigation concerning a deceased estate can no longer expect costs out of the estate. 

   [1] [2014] SASC 98.

   [2] [2016] SASC 166.

   [3] [2016] SASC 159.

   [4] [2017] SASC 75.

5. The defendants contend that the purpose of the application for passing over was to alter the provision made by the testatrix in her will for the appointment of her executors.  They sought to uphold the will as her executors.  They submit there is no finding that in acting as contradictors to the plaintiff’s application that they were acting in their personal interests rather than in their capacities as executors.  There is no finding of any impropriety on their part. 

6. In this matter the Court made the order for passing over Sandy and Hugh as executors because the relationship between Tony, on the one hand, and Sandy and Hugh on the other hand, is irreparably broken.  The Court found there exists a conflict of interest which means that Sandy and Hugh could not discharge their duties as executors. 

7. The difficulty in this matter arises from the testatrix’s appointment of her sons as her executors.  While I accept that the hostility which now exists between them arose subsequent to the making of her will, it seems to me that this is an occasion where it is appropriate for the Court to order that the costs of all parties be paid from the estate.  The order for passing over was not based on any finding of misconduct by any party.  The Court’s findings go no further than that some of Tony’s concerns require investigation and it was apparent that Sandy and Hugh would not undertake those investigations.  The Court is not in a position to know whether any of Tony’s concerns are justified.  The Court must be careful to avoid deterring executors, acting in good faith, from defending claims made against an estate.  The Court is not in a position to find that Sandy and Hugh were not acting in good faith.  None of this detracts from the principles in relation to costs enunciated in the authorities referred to earlier. 

8. In the circumstances, I would order that the costs of all parties be paid from the estate.