In the Estate of the Late Imre Soos

Case •

[2012] ACTSC 70

•

3 May 2012

IN THE ESTATE OF LATE IMRE SOOS

[2012] ACTSC 70 (3 May 2012)

EX TEMPORE JUDGMENT

No. SC 124 of 2011

Judge:             Sidis AJ
Supreme Court of the ACT

Date:              3 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 124 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. P 413 of 210

IN THE ESTATE OF LATE IMRE SOOS

BETWEEN:KATHERINE LOUISE MAREE MARTIN

Plaintiff

AND:EDITH ELIZABETH KACZOR

First Defendant

AND:ERIKA GABRIELLA SOOS

Second Defendant

ORDER

Judge:  Sidis AJ
Date:  3 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

  1. John Buxton be appointed as administrator and receiver of the Estate of the Late Imre Lajos Soos pursuant to s 24 of the Administration and Probate Act1929. 

THE COURT ORDERS BY CONSENT:

  1. A Declaration that the document referred to in the originating application for probate, being the disputed will, is not a valid will.
  2. A Declaration that the deceased, formerly of 48 Curlewis Street Garran in the Australian Capital Territory died on 24 April 2010 leaving property in the Australian Capital Territory.
  3. A Declaration that on 16 October 2009 the deceased executed his last will and testament by signing the same in the presence of a David Walters, solicitor and Tanya Corneliusen, clerk, who then attested and signed the said will in the presence of the deceased (the “will now propounded”).
  4. A Declaration that the deceased knew and approved of the contents of the will now propounded.
  5. A Declaration that Erika Gabriella Soos and Katherine Louise Maree Martin are the executrices named in the will now propounded.
  6. An Order that administration of the will now propounded annexed be granted in solemn form.
  7. A Declaration, nunc pro tunc, that the notice of intention to make an application for probate of the disputed will which was published in the Canberra Times on 15 May 2010 is sufficient notice for this application for administration with the will (now propounded) annexed.
  8. An Order that the parties costs of this application and those as consolidated by order of this Honourable Court be paid from the deceased’s estate on a solicitor client basis.
  9. The proceedings in application SC 124/11 are otherwise dismissed.

10.The proceedings in application SC 422/11 are dismissed.

  1. A copy of this order is to be annexed to the Grant of Administration.

  1. In this matter, I have read the affidavits of Damien Robert Anderson, Katherine Louise Marie Martin and Michael Douglas Martin, all dated 29 July 2010, concerning the agreement reached between the parties about the circumstances in which a document purporting to be a will was signed by Mr Anderson on 23 April 2010. 

  1. I was satisfied as to the soundness of the agreement reached between the parties that those circumstances did not establish that the deceased, Imre Soos, comprehended adequately the terms of a very complicated document that was signed by Mr Anderson. 

  1. I was satisfied therefore that it was appropriate to make the orders sought in paragraphs 5, 6, 7, 8 and 9 of the General Form of Order proposed by the parties in this matter.

  1. I was satisfied also that, having regard to the notice published in the Canberra Times on 15 May 2010, it was appropriate to make the orders sought in paragraphs 10 and 11 of that document.

  1. The issue remaining was whether the interim order made by Master Harper on 15 July 2011 appointing Mr John Buxton as administrator pendente lite and receiver pursuant to s 23(1)(b) of the Administration and Probate Act 1999 should be confirmed as a final order.  The second defendant applied to the court to have Mr Buxton’s interim appointment revoked and proposed the appointment of the Public Trustee in his place. 

  1. In support of this application, I was asked to read a number of affidavits which the second defendant submitted supported her view, which as I understand it was that she was not confident that Mr Buxton would administer the estate in a manner that was without bias to her interests.  The basis for this was that she was not consulted in respect of Mr Buxton’s appointment.  I noted that the orders made by Master Harper on 15 July 2011 were expressed to have been made by consent but that there was some dispute by the second defendant as to whether she in fact gave consent to those orders.

  1. The second defendant also referred to negative comments in a number of Mr Buxton’s reports concerning employment contracts; the occupation by the second defendant and members of her family of estate property at Garran; the lack of cooperation by the second defendant with his administration of the estate; the manner in which the estate had been administered prior to his appointment; the possible adjustment of distributions; and the capacity of the three sisters who are beneficiaries of the estate to cooperate in the management of any property distributed in specie such as an apartment building.

  1. The second defendant also complained of discourtesy and intimidation on the part of Mr Buxton and of the circumstances in which she was required to vacate the Garran property.  She suggested that it had been sold at under value.  She also complained of the failure to consult her in respect of the headstone for her parents’ grave.

  1. The plaintiff in the proceedings expressed her confidence in Mr Buxton.  The first defendant advised the court that she did not wish to disturb his appointment.  Mr Jones, the solicitor for the plaintiff, in an affidavit dated 27 April 2012, pointed out that the affairs of the estate were complex with interconnections between corporate entities and trusts, as well as the need to manage real property assets and loans.  He noted that Mr Buxton was managing the estate affairs competently, that he was well-qualified, and that he had the necessary skills to undertake the task imposed on him by the court.  He said Mr Buxton was well-versed in the intricacies of the assets and business arrangements of the estate. 

  1. It was clear that there was a significant history leading to the point arrived at in this court today.  The deceased, the father of the parties to the proceedings, died on 24 April 2010.  Two years later, little has been done to realise the assets of the estate and distribute them to the beneficiaries, all of whom complained of financial hardship.  I considered it therefore in the interests of all that the estate be administered efficiently and without delay.

  1. This presented me with the following options.  The first was to direct the parties to file further affidavit evidence to support their respective arguments for or against Mr Buxton’s continued appointment and to stand over the proceedings to a further hearing in June 2012.  The second was to revoke Mr Buxton’s appointment and to appoint in his place the Public Trustee.  The third was to confirm Mr Buxton’s appointment.

  1. I considered that the first option would involve the parties in further expense and delay, whilst leaving Mr Buxton in a position that remained uncertain.  I did not think that that was in the interests of the parties or the estate.  The second option would involve expense and delay in transferring the affairs of the estate to a nominee of the Public Trustee, who will be required to become familiar with their complexities.  The court was provided with no information concerning the qualifications, experience or identity of the person to whom the responsibility for the estate was to be transferred, except that the person will operate under the auspices of the Public Trustee.

  1. In my view, the third option was therefore most attractive and logical.  Mr Buxton has indicated his willingness to continue with the administration of the estate.  He has made significant progress since his appointment and there was no evidence of misconduct or incompetence on his part.  I acknowledge the second defendant’s concerns but I saw nothing in the materials provided to me that indicated that Mr Buxton has not acted professionally to date in pointing out matters that properly required consideration.

  1. Should any matter arise in future that indicated impropriety on his part, the second defendant or any other party retained the right to make further application.

  1. I did not consider it necessary to make the orders sought in paras 1 to 4 of the General Form of Order. 

  1. The Court orders that:

1.John Buxton be appointed as administrator and receiver of the Estate of the Late Imre Lajos Soos pursuant to s 24 of the Administration and Probate Act1929. 

  1. The Court orders by consent:

1.A Declaration that the document referred to in the originating application for probate, being the disputed will, is not a valid will.

2.A Declaration that the deceased, formerly of 48 Curlewis Street Garran in the Australian Capital Territory died on 24 April 2010 leaving property in the Australian Capital Territory.

3.A Declaration that on 16 October 2009 the deceased executed his last will and testament by signing the same in the presence of a David Walters, solicitor and Tanya Corneliusen, clerk, who then attested and signed the said will in the presence of the deceased (the “will now propounded”).

4.A Declaration that the deceased knew and approved of the contents of the will now propounded.

5.A Declaration that Erika Gabriella Soos and Katherine Louise Maree Martin are the executrices named in the will now propounded.

6.An Order that administration of the will now propounded annexed be granted in solemn form.

7.A Declaration, nunc pro tunc, that the notice of intention to make an application for probate of the disputed will which was published in the Canberra Times on 15 May 2010 is sufficient notice for this application for administration with the will (now propounded) annexed.

8.An Order that the parties costs of this application and those as consolidated by order of this Honourable Court be paid from the deceased’s estate on a solicitor client basis.

9.The proceedings in application SC 124/11 are otherwise dismissed.

10.The proceedings in application SC 422/11 are dismissed.

11.A copy of this order is to be annexed to the Grant of Administration.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.

Associate: Kayla Martin

Date:    10 May 2012

Counsel for the Plaintiff:  Mr  JA Gillies
Solicitor for the Plaintiff:  Maliganis Edwards Johnson
Counsel for the 1st Defendant:  Ms Louise Donohoe SC

Solicitor for the 1st Defendant:  Crouch & Co by their Canberra agent Baker Deane & Nutt

Counsel for the 2nd Defendant:  Mr B Meagher SC
Solicitor for the 2nd Defendant:  Nicholl and Co
Date of hearing:  3 May 2012
Date of reasons for judgment:  3 May 2012 
Date orders finalised:  10 May 2012

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