IN THE ESTATE OF MURCHISON (DECEASED) - [2023] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF MURCHISON (DECEASED)
[2023] SASC 77
Reasons for the Orders of the Honourable Justice Bampton
18 May 2023
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 - ADMINISTRATION WITH WILL ANNEXED - TO WHOM GRANTED
Application for passing over – where the first named executor in a will predeceased the testator and the first reserve executor died following the testator’s death leaving the respondent the sole person entitled to apply for probate – where the residue of the deceased estate is left to the three executors named in the will in equal shares – where probate in the first reserve executor’s estate was granted to the applicant – where the applicant (as legal personal representative of the first reserve executor, a residual devisee and legatee of the deceased estate) seeks an order passing over the respondent as executor – where no original of the will can be located – whether the respondent as sole remaining executor is competent to carry out executorial duties.
HELD: The respondent be passed over as executor named in the will and as a person entitled to a grant of letters of administration in the deceased estate – the copy of the will of the deceased be admitted to proof.
Supreme Court Act 1935 (SA) s 18; Wills Act 1936 (SA) s 8; Administration and Probate Act 1919 (SA); Probate Rules 2015 (SA) rr 33(5), 69, referred to.
In the Estate of Crane (2005) 93 SASR 198; In the Estate of Spiros Vlahiotis (deceased) [2019] SASC 207, considered.

IN THE ESTATE OF MURCHISON (DECEASED)
[2023] SASC 77
Testamentary Causes Jurisdiction
BAMPTON J.
Background

Sylvia Rosemary Murchison (“Sylvia”) died on 11 May 2019 survived by her son Gary John Murchison (“Gary”) and her daughter Wendy Marie Murchison (“Wendy”). Sylvia was predeceased by her two other children: Bronte Scott Murchison (“Bronte”) who died in 2006, and Michelle Gail Murchison (“Michelle”) who died in 2017. Both Bronte and Michelle died with no issue.
Sylvia made a will on 27 February 2007 (“the 2007 will”) appointing Gary as executor, with Wendy (known then as Wendy Marie Wakeham) and Michelle named as reserve executors. By the 2007 will, Sylvia made a gift of $1,000 to the Down Society of South Australia, made a gift of $1,000 to Vision Australia Ltd and gave the residue of her estate to Gary, Wendy, and Michelle in equal shares or their children if Gary, Wendy or Michelle predeceased her.
Gary died on 19 December 2019[1] and probate in his estate was granted to Grant Peter Jarrett (“Grant”) on 3 June 2020.[2]
[1] PROB-23-000593, FDN 2 at [1].
[2] PROB-20-002706, FDN 8.
As both Gary and Michelle have died, Wendy was the only person entitled to apply for probate of the 2007 will.
There was intermittent correspondence between Grant’s solicitor and Wendy during 2021 regarding Wendy’s delay in propounding the 2007 will. On the occasions Wendy did reply to Grant’s solicitor in 2021, her responses did not advance the matter. For example, in an email dated 28 September 2021 when asked by Grant’s solicitor if she had engaged a solicitor, she said, “If I had a solicitor – that firm would have been in contact already”.[3]
[3] PROB-23-000593, FDN 2 at annexure “C”.
As Wendy had not made an application for probate and had not responded to Grant’s solicitor’s attempt to communicate with her for several months, Grant issued a subpoena on 1 February 2022 in PROB-22-000458. The subpoena was not served on Wendy until 23 February 2022 due to Wendy refusing to identify herself to a process server.[4]
[4] PROB-23-000593, FDN 2 at [14] and annexure “E”.
As Wendy failed to comply with the subpoena, Grant made application on 7 April 2022 in PROB-22-002105, seeking orders that Wendy deliver the 2007 will to the Court. As Gary was unable to effect personal service of the application on Wendy, the Probate Registry notified Wendy by email and by registered post that the application would be called on for directions hearing on 4 July 2022. As Wendy failed to attend the first directions hearing, the Acting Registrar of Probates referred the application to a Judge of the Court.
Wendy attended the first directions hearing before me on 19 July 2022. Just prior to the directions hearing being called on, Wendy and Grant’s solicitor briefly discussed the matter. Following the discussion, Grant gave his solicitor instructions by telephone to consent to an adjournment to allow Wendy time to engage a solicitor and take steps towards applying for a grant of probate. The matter was adjourned by consent to 21 September 2022 for further directions. Grant deposed in his affidavit affirmed 31 January 2023 that his solicitor expressed to Wendy the adjournment was agreed to on the proviso that she would promptly engage a solicitor and that she would instruct the solicitor to be responsive to any reasonable requests for information that Grant or his solicitor may make in Grant’s capacity as the personal representative of a beneficiary of Sylvia’s estate.[5]
[5] PROB-23-000593, FDN 2 at [19].
Grant deposed that on 19 July 2022 following the directions hearing, his solicitor emailed Wendy requesting that she advise who she would be engaging as solicitor by no later than 26 July 2022. Wendy replied that day, stating she would be ‘returning’ to Mr George Foumakis of Parkside Legal the following day. Her reply also stated “However I expressly do NOT give you permission to contact him in regards this estate, myself, my mother or brothers affairs … I am proceedings with a course I see best”.[6] Grant stated that when his solicitor contacted Mr Foumakis, he was informed that whilst Wendy had contacted him, he did not expect Wendy would engage him.[7]
[6] PROB-23-000593, FDN 2 at [20] and annexure “G”.
[7] PROB-23-000593, FDN 2 at [21].
Grant deposed that Wendy did not respond to an email from his solicitors on 10 August 2022 informing her that if they had not heard from a solicitor informing them she had engaged them to apply for a grant of probate by close of business 17 August 2022, Grant would seek to bring forward the date of the next directions hearing and that the cost of that hearing be paid from her share of the deceased’s estate.[8]
[8] PROB-23-000593, FDN 2 at [22] and annexure “H”.
The directions hearing listed on 21 September 2022 was subsequently brought forward to 6 September 2022. Wendy failed to attend this hearing, as well as the directions hearings listed on 18 October 2022, following which she emailed my chambers and requested another listing. The hearing was listed the following day. Again, Wendy failed to attend, and the matter was adjourned to 9 November 2022.
The production of a copy of the 2013 will
Wendy appeared at the directions hearing on 9 November 2022, during which she produced the original of the 2007 will and a copy of a later will made by Sylvia on 10 September 2013 (“the 2013 will”). Grant deposed that this was the first time he or his solicitor sighted the 2013 will. I also note Wendy made no mention of the 2013 will during any hearing prior to 9 November 2022. The 2013 will appoints Michelle as executor, with Gary named as reserve executor and Wendy as second reserve executor. By the 2013 will, Sylvia gifts $1,000 to the Vision Australia Ltd and gives the residue to Gary, Michelle, and Wendy. Other than the omission of the $1,000 gift to the ‘Down Society of South Australia Incorporated’ in the 2013 will, there is no substantial or practical difference between the beneficiaries in the 2007 will and the 2013 will.
The original of the 2013 will has not been located. I note Wendy suggested she had a receipt from Gary recording that he had possession of it. No such receipt has been produced by Wendy.
During the directions hearing on 9 November 2022, Wendy informed the Court that her delay in applying for a grant of probate was due to her belief that Sylvia’s estate was owed monies by Michelle’s estate, and that Robert Grealy, a solicitor in Queensland, was acting for her in relation to Michelle’s estate.[9]
[9] T4.3-10 (9 November 2022).
I asked Wendy whether she had been keeping Grant informed of what she was doing, to which she responded she had personally spoken to Grant some time ago.[10] Further, I impressed on Wendy the need to engage a solicitor to assist her with the application for a grant of probate, especially if an application would be made for the admission of a copy will.[11] I also asked her to keep the Court informed of her progress pointing out that when she does not respond to correspondence or fails to appear at directions hearings, it appears she is trying to avoid the processes of the Court.[12] The matter was adjourned to 1 March 2023, to allow Wendy time to obtain legal advice and make an application to have a copy of the 2013 will admitted to probate.
[10] T6.6-10 (9 November 2022).
[11] T9.13-15; T14.13.21; T15.21-25 (9 November 2022).
[12] T7.34-37 (9 November 2022).
Grant deposed that following this directions hearing, his solicitor contacted Robert Grealy’s legal practice, JKR Legal, on 17 November 2022. The solicitor was informed Mr Grealy does not act for Wendy and has no memory of having spoken to Wendy.[13]
[13] PROB-23-000593, FDN 2 at [25.2].
On 23 November 2022, Grant’s solicitor wrote to Wendy by way of email and registered post, stating that if she had not either lodged an application for a grant of probate of a copy of the 2013 will, or instructed a solicitor to advise in writing that she had engaged them to apply for grant of probate, he would apply to the Court for orders to have her passed over as executor and seek orders that the costs of any such application be paid from her share of Sylvia’s estate. Wendy did not respond to this letter.
Grant stated that despite Wendy informing the Court that she had personally spoken to him, he has not communicated with Wendy personally since around September 2021.[14]
[14] PROB-23-000593, FDN 2 at [25.6].
Further, Grant deposed that despite the Court impressing on Wendy the importance of keeping the relevant parties informed of the steps she was taking as executor, she continued to fail to respond to requests for information.[15]
[15] PROB-23-000593, FDN 2 at [25.7].
I note that this failure was not limited to Wendy responding to Grant’s request for information, but also the Court’s. At the directions hearing on 9 November 2022, I asked Wendy to email a copy of the affidavit of Ms Joanne Cliff at DW Fox Tucker (formally of Mouldens), the solicitor who prepared the 2013 will, to Grant and the Court. On 22 December 2022, my chambers sent an email to Wendy requesting she provide the affidavit as soon as practicable, but Wendy failed to do so. It was not until 24 March 2023 that a solicitor instructed by Wendy provided a copy of Ms Cliff’s affidavit to the Court and Grant, some four months after the Court’s initial request.
Application to pass over Wendy as executor and admission of the copy will
Wendy has been the sole person entitled to apply for probate under the 2013 will since Gary’s death over three years ago. On 3 February 2023, Grant filed an originating application[16] (“the application to pass over”), supported by his affidavit affirmed 31 January 2023, seeking the following orders:
1.Passing Wendy over as executor named in the 2013 will;
2.That the copy of the 2013 will be admitted to proof;
3.That upon Grant (in his capacity as legal personal representative of Gary, a residuary devisee and legatee of Sylvia’s estate)[17] making an application for a grant of letters of administration of Sylvia’s estate in a form acceptable to the Registrar of Probates, the Registrar be directed to issue the grant;
4.That the costs of the application to pass over be paid from Wendy’s share of Sylvia’s estate; and
5.The costs of the application to have the copy will admitted to proof be paid from Sylvia’s estate.
[16] PROB-23-000593, FDN 4.
[17] Probate Rules 2015 (SA), r 33(5).
Passing over principles
This Court has, pursuant to s 18 of the Supreme Court Act 1935 (SA) and the provisions of the Administration and Probate Act 1919 (SA), jurisdiction in limited circumstances to pass over an executor named in a will.[18]
[18] In the Estate of Crane (2005) 93 SASR 198 at [23].
As Besanko J identified in In the Estate of Crane,[19] there are two general principles governing the Court’s discretion to pass over an executor:[20]
1.A court will not readily pass over a named executor and, in general, a person who is named as executor by a testator is entitled to a grant of probate; and
2.When a court does exercise the jurisdiction, it does so having regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate.
[19] In the Estate of Crane (2005) 93 SASR 198
[20] In the Estate of Crane (2005) 93 SASR 198 at [24].
As Stanley J explained in In the Estate of Spiros Vlahiotis (deceased):[21]
A court will pass over a named executor where to appoint that executor would place the administration of the estate in jeopardy. There are no limits to the grounds upon which a named executor may be passed over as each case depends upon its own facts. The Court’s overriding concern is promoting the orderly administration of the estate and the welfare and the best interests of the beneficiaries. The primary concern of the Court will be to ensure the estate is efficiently and properly administered according to the terms of the will. In order to determine whether a named executor should be passed over it is not necessary to make any final determination in relation to the claims made against them.
(Emphasis added, citations omitted)
[21] In the Estate of Spiros Vlahiotis (deceased) [2019] SASC 207 at [31].
Assets of the deceased’s estate
Grant deposed he is aware of two assets forming part of Sylvia’s estate namely a two-bedroom unit in Payneham (“the Payneham unit”) and a Bank SA account in the name of Gary (Grant understands this was held on trust for Sylvia). Grant also deposed there may well be other assets.
Grant stated he does not know if the Payneham unit is currently insured and, based on a conversation his solicitor had with Wendy on 19 July 2022, Wendy was unaware of her obligation as executor to insure the unit and had not done so.
Administration of Michelle’s estate
In relation to Wendy’s assertion that Sylvia’s estate is owed monies by Michelle’s estate, Grant deposed that his solicitor spoke to Bennett and Philp Lawyers, the firm instructed on the distribution of Michelle’s estate. Bennett and Philp Lawyers confirmed that Michelle’s estate was distributed appropriately, and Sylvia was not entitled to a share of Michelle’s estate.
A copy of Michelle’s will dated 25 January 2017 (“Michelle’s will”), the vesting deed for the Michelle Gail Murchison Testamentary Trust (“the vesting deed”) and the sealed grant of probate in relation to Michelle’s will are annexed to Grant’s affidavit.[22] Michelle’s will establishes the Michelle Gail Murchison Testamentary Trust (“Michelle’s trust”) is governed by the vesting deed. Clause 16(c) of Michelle’s will provides:
Any income and capital of the trust fund not distributed prior to the vesting day shall be held by the trustee upon trust for such of the beneficiaries referred to in clause 16(a)(ii) as shall then be living and if more than one in equal shares as tenants in common in equal shares.
(Emphasis added)
[22] PROB-23-000593, FDN 2 at [25.3] and annexure “J”.
Sylvia is a named beneficiary named in clause 16(a)(ii) of Michelle’s will. Pursuant to the vesting deed, the vesting day of Michelle’s trust was 4 October 2019. Sylvia died on 11 May 2019, prior to the vesting day. As such, Sylvia was not entitled to a share of Michelle’s estate.
Regardless of Wendy’s concerns over the administration of Michelle’s estate and its impact on Sylvia’s estate, there is no reason why Wendy could not have applied for a grant of probate over the last three years since Gary’s death, noting that there may be further assets to be called in. When this was explained to Wendy at the directions hearing on 9 November 2022,[23] Wendy indicated she understood what was required of her and the steps she needed to take to ensure Sylvia’s estate was finalised.[24]
[23] T9.30-T10.8; T13.9-17; T14.5-12 (9 November 2022).
[24] T15.16-20 (9 November 2022).
Wendy instructs a solicitor
On 1 March 2023, Grant’s solicitor informed my chambers by email that Wendy was now represented by Mr Ricardo Villegas, who had agreed to consent orders that Wendy file any affidavit in response to application to pass over by 16 March 2023. The consent orders were made administratively and the matter was adjourned to 23 March 2023.
At the directions hearing on 23 March 2023, I extended the time for Wendy to file and serve any affidavit in response to the application to pass over by close of business 5 April 2023. I also ordered Grant file and serve any further affidavit by close of business 14 April 2023 and listed the application for hearing on 1 May 2023.
Wendy’s affidavit
In her affidavit affirmed 4 April 2023,[25] Wendy deposed to wishing to make an application for a grant of probate, but that she is “still unable to stay when [she] would be in a position to make that Application”.[26]
[25] PROB-23-000593, FDN 9.
[26] PROB-23-000593, FDN 9 at [5].
She deposed the primary reason why she had not applied for a grant of probate was because she is “suffering severe trauma which has made it virtually impossible for [her] to address or attend to the issues related to the finalisation of the Estates of [her] sister … [her] biological mother … [her] brother … and [her] biological father”,[27] that she is currently undergoing trauma therapy in an effort to recover from her debilitating injuries[28] and that she is “still not yet stabilised enough from [her] injuries and associated trauma nor currently in a position to engage in the litigation process to be able to preserve or protect [her] position with respect to either [Sylvia’s] estate or [Gary’s] estate”.[29] Wendy deposed that her non‑participation in these proceedings is as a result of her being “still significantly injured and traumatised … caused by Gary John Murchison” and that she does not believe “that any Court would force [her] to engage in proceedings, whilst [she] is injured and traumatised”.[30]
[27] PROB-23-000593, FDN 9 at [7].
[28] PROB-23-000593, FDN 9 at [13].
[29] PROB-23-000593, FDN 9 at [12].
[30] PROB-23-000593, FDN 9 at [16].
Wendy alleges Gary “unlawfully interfered” with the administration and distribution of Michelle’s estate. She deposed that she has a “significant claim on [Gary’s] estate” and that “the quantum of [her] claim against [his] estate would significantly exceeds [sic] any inheritance that his estate would receive from [Sylvia’s estate]”.[31] She also deposed that she is “too unwell” to address the issue of whether the Payneham unit is insured.[32]
Hearing of the application to pass over and for admission of the copy of the 2013 will
[31] PROB-23-000593, FDN 9 at [11].
[32] PROB-23-000593, FDN 9 at [14].
The application to pass over was heard on Monday 1 May 2023. Grant filed and served written submissions on 28 April 2023. At the commencement of the hearing, Mr Guthrie, counsel for Grant, said that Grant’s affidavit affirmed on 31 January 2023, Ms Cliff’s affidavit affirmed 1 November 2022,[33] and the written submissions were relied on in support of the application.
[33] PROB-23-000593, FDN 13.

Mr Villegas, appearing for Wendy, said he had not had much time to read the affidavit filed 28 April 2023 which he said should have been filed by 14 April 2023. It was explained to Mr Villegas the document filed 28 April 2023 were submissions and no order had been made regarding the filing of submissions. When Mr Villegas was asked whether he had an issue with the matter proceeding, the following exchange occurred:[34]
MR VILLEGAS:     Yes. We feel this should be struck out. The will, very clearly, lays absolute discretion at my client's door, and there should be no reason that she should be passed over so we ask the court to strike out this application.
HER HONOUR:      Okay. You haven’t brought an application to that effect?
MR VILLEGAS:     No, we have not.
HER HONOUR:      In asking you whether you’re prepared to continue today, and what I was saying is that you've said that you received these submissions Friday, you’ve read them over the weekend. My question is are you happy to proceed today?
MR VILLEGAS:     Yes, we are.
[34] T4.26-5.1 (1 May 2023).
Grant’s submissions
Grant submitted the order passing Wendy over as executor is sought because she is not competent to take on the role for the following reasons:
·her failure to apply for probate for almost three and a half years which has prevented the orderly administration of Sylvia’s estate and impacts the welfare and the best interests of the beneficiaries;
·her neglect of her executorial duties, including a failure to insure the Payneham unit, putting it at risk and otherwise not taking steps to rent the unit and generating income (which appears to be conceded by Wendy in her affidavit);
·her refusal on several occasions to provide beneficiaries of the estate with information they were legally entitled to request; and
·her conduct in relation to the application in PROB-22-002105 to produce the 2007 will, including:
-refusing to identify herself to a process server;
-significant delays in complying with the subpoena and with requests for information by the Court;
-several unexplained non-appearances at directions hearings; and
-making misleading statements to the Court at the 9 November 2022 directions hearing.
In oral submissions, Mr Guthrie reiterated that Wendy is not competent to take on the role of executor. He submitted that she has failed to apply for probate in the almost three and a half years since Gary’s death,[35] has failed to perform her executorial duties, indicating that they cannot be performed due to illness,[36] and her admission that she was still unsure of when she will be well enough to apply for a grant.[37] It was contended that if an executor cannot apply for a grant, they should renounce their appointment, and as such, Wendy should have renounced her appointment as executor a long time ago.[38]
[35] T8.8-16 (1 May 2023).
[36] T19.6-31 (1 May 2023).
[37] T15.6-10 (1 May 2023).
[38] T21.3-7 (1 May 2023).
Grant submitted the copy of the 2013 will should be admitted to proof. It was submitted the document has been written and executed in accordance with the formal requirements of s 8 of the Wills Act 1936 (SA), and that Ms Cliff, the solicitor who prepared the 2013 will, did not observe any cognitive difficulties or decline in Sylvia at the time the 2013 will was drafted and executed. Further, Ms Cliff’s affidavit evidence[39] confirms that the copy will before the Court is a true and accurate copy of the original of the 2013 will.
[39] PROB-23-000593, FDN 13.
Grant submitted that, consequent upon Wendy’s indication to the Court at the 9 November 2022 directions hearing that the original was with Gary and that she had a receipt[40] indicating this, Grant caused extensive searches to be undertaken to locate the original. Gary’s two daughters searched Gary’s paperwork to no avail. Enquiries were made of ANZ Bank and Bank SA, the institutions with whom Gary banked, to see if they had custody of the original, but neither did. Ms Cliff deposed in her affidavit that she did not keep the original, but that she gave the original to Michelle and a copy of the original to each of Sylvia and Michelle. An advertisement placed in the Law Society’s publication InBrief seeking anyone who knew the whereabouts of the original will to contact Grant’s solicitor did not elicit any useful response. Enquires made of Tindall Gask Bentley, a law firm who had dealt with the Murchison family in the past were also of no avail.
[40] I note that the receipt was not provided to the Court.
Grant submitted that no-one would be negatively impacted by the admission of the copy of the 2013 will. Besides the omission of the small $1,000 gift to the ‘Down Society of South Australia Incorporated”, an organisation that appears to be non-existent,[41] there is no substantial or practical change in what each beneficiary stands to inherit under either the 2007 will or 2013 will. Grant also submitted there is no evidence of revocation of the 2013 will, rather the evidence suggests a named executor took possession of it following Sylvia’s execution of it.
[41] PROB-23-000593, FDN 2 at [43].
I accept having regard to the evidence the presumption of revocation of the 2013 will does not arise. I also consider it appropriate pursuant to r 69 of the Probate Rules 2015 (SA) to dispense with the requirement to obtain the consent of “Down Society of South Australia Incorporated”, noting the purported gift is minor and the evidence suggests no such organisation exists.
Wendy’s submissions
Mr Villegas relied on the trustee’s powers in the 2013 will in support of his submission that the application should be struck out as the 2013 will has given Wendy the “absolute discretion … as [Sylvia’s] last surviving child to dispense the estate as she sees fit”.[42]
[42] T25.6-8 (1 May 2023).
It was submitted Wendy had contacted certain lawyers but the relationship with “those law firms hasn’t been exactly agreeable”. Mr Villegas said Wendy:[43]
MR VILLEGAS:     … was seeking a law firm that could represent her correctly. We started our practice in February, the end of February 2020, and as soon as we began our practice, being a long time friend of Wendy through other means, other social outings and that kind of thing, when I informed her that I was beginning my law firm she immediately said ‘I want you to handle the estate’.
Ever since then we’ve been dutifully following the court’s orders; we administered the affidavit when the court ordered us to; we uploaded it to the portal; we served it on Mr Wall; we’re here in court today; and you have our undertaking that we will move forthwith on this probate application within the next two or three months. All we ask is that –
HER HONOUR:      But you’re waiting on something happening in Queensland.
MR VILLEGAS:     We are. My client is currently discussing investigations into Gary’s estate and the whole issue of the missing money from the sister’s estate into the mum’s, which I know the court can’t consider. However, these investigations are almost at an end. Potentially at the end of May they should have some sort of resolution, and you have our undertaking as Visual Legal law firm that once that is complete, in June, at the end of June at the latest my client will apply for probate and will administer this estate forthwith.
[43] T29.5-31 (1 May 2023).
Mr Villegas submitted that the 2013 will prescribes no timeline as to when the estate should be administered, but that Grant’s solicitor has been harassing and pressuring Wendy to make the grant application. Mr Villegas submitted Wendy has been grieving the death of her family members and “begged” the Court to understand that grieving is not a “1, 2, 3 process”.[44]
[44] T28.23-24 (1 May 2023).
Mr Villegas contended that as executor, it is in Wendy’s absolute discretion whether beneficiaries in the 2013 will receive anything from Sylvia’s estate, “because it is her absolute discretion whether or not she actually administers any of the estate towards the daughters of Gary”.[45] When I mentioned to Mr Villegas that I was concerned about his understanding of the trustee powers under the 2013 will, Mr Villegas indicated he was new to probate and had mainly conducted pro bono work:[46]
Assisting clients of impoverished Adelaide community, and when I was in Sydney I would help out with migration, meaning migration law. So I’m still trying to wrap my around this. My apologies for my dreaded misinterpretation of the will. I will get it right, I promise you. However, my novice nature aside, the issues in this case are very complex and they involve a lot of family history.
[45] T28.25-29 – T29.33-37 (1 May 2023).
[46] T37.16-23 (1 May 2023).
Mr Villegas also made allegations against Gary. It was submitted Wendy is suffering from trauma and grief and it was intimated that Wendy is displeased that as executor she must “administer” Gary’s “part of the estate for Sylvia”.[47] When I said this submission suggested to me that Wendy should not be the executor, Mr Villegas said:[48]
MR VILLEGAS:     When she was hiring other law firms, that’s why this relationship between other law firms, like I said, it didn’t fit her criteria for what a law firm who could help her apply for this grant of probate. So therefore we stepped in. We have specialists in this area that we have contacted, lawyers with over 20 years experience in this matter, and he’ll help us to administer the grant of probate. All we ask is for Mr Grealy’s investigations in Queensland to be finalised, or to at least reach an end so that we know exactly what’s happening with the money that should be in Sylvia’s estate that’s missing from Gary’s misadministration of the estate when he had possession when he opened up a personal bank account to take that estate into instead of a trust account.
So, all of these issues, they may seem like they’re separate and apart, but they do affect this estate, and they affect the amount of assets that this estate has. It’s not just a house in Payneham. It’s much more than that.
HER HONOUR:      That all suggests to me that your client, supported by your advice, thinks there can be a sort of a set off, or a claim against whatever entitlement Gary’s estate has from his mother’s estate, that can be reduced by whatever you think is owed in the other estate.
MR VILLEGAS:     It’s not just thinking. Mr Grealy in Queensland is conducting investigations and financial audits to the documents that he can obtain, and we think that that affects this estate quite heartily. So we feel that applying for a grant of probate now is a bit premature when in just four more weeks those investigations will come to a hardy conclusion. It’s just four more weeks and then we see where Mr Grealy’s at, and you have our undertaking as a law firm and as a lawyer that I will assist my client to apply for probate.
[47] T39.29-32 (1 May 2023).
[48] T39.35-40.33 (1 May 2023).
Wendy and Mr Villegas do not appear to accept the interpretation of Michelle’s will and vesting date of Michelle’s trust referred to above.
As Mr Villegas sought to put evidence or submissions before the Court in support of Wendy’s competence to act as executor of the 2013 will, Wendy was ordered to file any further affidavit or written submissions by close of business on 8 May 2023. I adjourned the hearing intending to determine the matter in chambers. However, I decided to list the matter on 11 May 2023 so that Mr Villegas could speak to the written submissions I expected would be filed.
Mr Villegas’s email 11 May 2023
At 7:24 am on 11 May 2023, Mr Villegas sent an email to my chambers, which was not copied to Grant’s solicitor, stating he was unable to “fulfill the deadline that you set upon me at the conclusion of the Hearing for Wendy MURCHISON’s Probate Matter, on 1 May 2023”, and:
In order to achieve some clarity regarding the facts of the MURCHISON Estate(s), I asked Wendy to provide me a history of their family events in the form of a timeline.
I received that on Monday evening. 8 May 2023 at 22:46.
That email has been attached for your reference.
As you may notice, upon your perusal of that Family History, even in the summary form provided by Wendy, there are many complicating factors.
Mr Villegas explained that Wendy had forwarded an email to him that she wished him to share with the Court, which stated:
I have been forced to employ legal assistance due to the constant harassment of carpenters and associates –
Harry Wall on July 22 of 2022 was informed of the most recent will and the issues with the dispersement from Michelle’s will
But regardless of this they still subpoenaed the old will in November 2022 …
…
Any and all costs associated with their legal Rabbit hole are completely on the executor and lawyers associated
I am completely exempt of their choices–
Their attempted harassment of me at the property of 101 Piccadilly road, Was in violation of to Tress pass signs that well documents caselaw of such Trespass
Additionally in February 2022 I was the support person for my daughter’s second child being born in Victoria
Additionally the found envelope was a addressed to a dead person and was found at a rear entry of a tenanted to the house.
In concluding his email, Mr Villegas said:
In conclusion HH Justice Bampton, I ask for a bit more time to streamline all of the emails (over 10 of them) sent to me by Wendy on Monday evening into a Submission for the Supreme Court of South Australia, Probate Jurisdiction.
I am not trying to make excuses of any sort. Nor am I trying to blame any of this delay on Wendy MURCHISON.
The fact is that providing the narrative that is attached alongside all of the other recollections and emails from the past 10 years has been quite a challenge, both emotionally and narratively.
In considering the granting of a bit more time to submit a well-reasoned and well-formatted submission for the Court, I ask HH Justice Bampton to please consider:
·Wendy’s Affidavit was submitted in early April
·Mr. Wall had all of April to prepare submissions for the Court
·The submission of Mr. Wall was served on us on a Friday afternoon
·Our appearance at the Supreme Court occurred just 3 days after that submission was served, on Monday morning
·The matter is complex and involves the Administering of Sylvia’s estate
·Sylvia’s Estate was a beneficiary of Michelle’s Estate
·Gary was Sylvia’s Executor
·Gary had severe mental health issues to the point that he had attempted suicide several times
·Raymond (the father) had Power of Attorny over Gary’s affairs
·Raymond passed shortly after Gary took his life
·Raymond’s estate was Executed efficiently and with due diligence by Wendy
In consideration of all of those factors, I ask HH Justice Bampton to grant us more time to put all of the information elucidated in this email into a Formal Submission for the Court.
In the alternative, I ask that HH Justice Bampton take into consideration all of the above and allow Wendy to fulfill her duty as Executrix of the Estate of Sylvia Murchison.
The hearing on 11 May 2023
Just prior to convening the hearing on 11 May 2023, I was informed by the Senior Deputy Registrar of Probates that Wendy had filed a grant application earlier that morning.
At the commencement of the hearing, Mr Villegas confirmed that he had not sent a copy of his email referred to above to Grant’s solicitor, saying “No, this was correspondence for your Honour”. When I said to him that he should not communicate directly with the chambers of a judicial officer unless the other side is copied in, he said “Forgive me, your Honour; I’m simply asking for an adjournment”. I pointed out to him that there was no application seeking an adjournment. Mr Villegas said, “Well, like I mentioned in the previous occasion, this matter is quite complex”.[49]
[49] T46.4-15 (11 May 2023).
I asked Mr Villegas whether he knew that an application for probate had been filed. He said that he had learned of it that morning and, “May we seek that this matter be dismissed and costs awarded to our client”.[50]
[50] T47.31-32 (11 May 2023).
I said the application would not be dismissed. Mr Villegas then pressed his application to adjourn the matter. It was pointed out to him that the matters he submitted in support of his application to adjourn were not relevant to the application for passing over. Mr Villegas complained that he had not been “allowed to tender a detailed submission” and had only been “given seven days to respond to [Grant’s] very detailed submission that was served to us three days before the trial”.[51]
[51] T53.9-13 (11 May 2023).
It is to be noted that Grant’s written submissions summarise the evidence before the Court and the well-known principles of passing over and admission of copy wills.
As submitted by Mr Guthrie, the matters submitted by Mr Villegas do not quell concerns about Wendy’s competence to be the executor. It was submitted it appears that Wendy does not really understand what her role is, is still making excuses as to why she cannot do certain things and relying on family history, which is irrelevant to the application for passing over.
Mr Villegas maintained his assertion that Grant’s solicitors were harassing Wendy. As I pointed out to him on 1 May 2023, the solicitors were merely doing what would be expected of them as solicitors and officers of the Court.
Conclusion
Having regard to the affidavits filed in this matter and the submissions, I am not satisfied that Wendy is competent to proceed with the administration of Sylvia’s estate for the reasons contended by Grant. I have no confidence that Sylvia’s estate will be efficiently and properly administered according to the terms of the 2013 will whilst Wendy remains an executor. She does not appear to properly understand her role as executor, has deposed to suffering significant injuries and trauma which prevent her from finalising Sylvia’s estate, and is pursuing unmeritorious investigations that may dissipate Sylvia’s modest estate through legal and accounting fees.
Having regard to the due and proper administration of Sylvia’s estate and the interests of the those beneficially entitled to her estate, I was satisfied it is appropriate to exercise the Court’s jurisdiction and grant the orders sought to pass over Wendy as executor of Sylvia’s estate.
Accordingly, I made the following orders:
1.The respondent, Wendy Marie Murchison, be passed over as executor named in the will of Sylvia Rosemary Murchison dated 10 September 2013 (“the will”) and as a person entitled to a grant of letters of administration of the estate of Sylvia Rosemary Murchison deceased (“the deceased”).
2.The copy will of the deceased dated 10 September 2013 annexed and marked “B” to the affidavit of Grant Peter Jarrett affirmed on 31 January 2023 be admitted to proof.
3.Upon Grant Peter Jarrett (in his capacity as legal personal representative of Gary John Murchison, a residuary devisee and legatee of the deceased’s estate) making an application for a grant of letters of administration (copy will annexed) of the deceased’s estate in a form acceptable to the Registrar of Probates, the Registrar be directed to issue the grant.
4.The costs of and incidental to the application to have the respondent passed over be paid for out of the respondent’s share of the estate of the deceased.
I make the following further order:
1.The costs of the application to have the copy of the 2013 will admitted to proof be paid out of the estate of the deceased.