Irwin v Barr and Hawkes
[2023] QSC 260
•29 November 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Irwin v Barr and Hawkes [2023] QSC 260
PARTIES:
SHANE JOSEPH IRWIN
(applicant)
v
MARION LEIGH BARR(first respondent)
AND
ADRIAN HAWKES
(second respondent)
FILE NO:
869/22
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
29 November 2023
DELIVERED AT:
Brisbane
HEARING DATE:
6 November 2023
JUDGE:
Freeburn J
ORDER:
1. The application is dismissed.
2. I will hear the parties on costs.
CATCHWORDS:
SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – PROCEEDINGS AGAINST PERSONAL REPRESENTATIVES – where the applicant is a residuary beneficiary under the Will of his late father – where the first respondent is the executor and trustee of the Will – where the applicant contends that the first respondent has improperly administered the estate, including by failing to produce a final account of the estate, stating to the applicant that obtaining information from financial institutions is “subject to the goodwill of the banks”, withholding certain assets, refusing to accept offers of assistance from the applicant, making certain distributions from the estate, disregarding ATO information or failing to provide information about a certain bank account, making errors in documentation, communicating in a convoluted nature, and failing to sufficiently respond to notices of objection served pursuant to rule 646 of the Uniform Civil Procedure Rules 1999 – whether the first respondent has engaged in unreasonable conduct or conduct in breach of the duty to perform the trust honestly and in good faith for the benefit of the beneficiaries
Succession Act 1981
Uniform Civil Procedure Rules 1999Pearse v Green (1819) 37 ER 327
Re Charteris [1917] 2 Ch 37Reid v Hubbard [2003] VSC 387
COUNSEL:
(Mr Irwin was self-represented)
Mr GN Gunn for the respondents
SOLICITORS:
Mr Irwin represented himself
Hawkes Lawyers for the respondents
Malcolm Joseph Irwin died on 27 December 2019. Earlier that year he had executed a Will which appointed his cousin, Marion Leigh Barr, as executor and trustee of his Will. The Will included some specific bequests, namely:
(a)$20,000 to the Prince Charles Hospital Foundation;
(b)$20,000, as well as his household and personal effects, his car, any boat, his personal shareholdings and associated bank accounts, to Marion Barr;
(c)$20,000 to his grandchildren Marcus Anthony Fielden and Eleanora Ivy Fielden;
(d)$2,000 to his friend Gail Harrison;
(e)$2,000 to his friend Lynette Joan Seng; and
(f)$4,000 to his friends Craig Mannix and Rochelle Mannix.
The residue of his estate was to be divided equally between:
(a)his son, Shane Joseph Irwin (the applicant here);
(b)his daughter Sherron Louise Fielden;
(c)Marion Barr;
(d)Prince Charles Hospital Foundation;
(e)Marcus Anthony Fieldon; and
(f)Eleanora Ivy Fielden.
Some disputes arose between Ms Barr as the executor and Shane Irwin. Those disputes were settled by a settlement agreement dated 22 June 2022. The effect of the settlement agreement was that:
(a)Mr Irwin agreed to co-operate so that Ms Barr could obtain probate of the will;
(b)Ms Barr agreed to pay Mr Irwin $57,500 from her entitlements under the will;
(c)Mr Irwin agreed not to contest that two specific bank accounts were the “associated bank accounts” referred to in clause 2.2.5 of the will.
Regrettably, further disputes have arisen. Essentially, Mr Irwin complains about what he alleges is the improper administration of the estate. In his oral submissions Mr Irwin said that his claims fell into three categories:
(a) aincomplete estate accounts – which are now into six versions;
(b) movement of funds from his father’s accounts before probate was granted;
(c) lack of ability or willingness to obtain information relevant to the estate.
Unfortunately, the evidence does not neatly fall into those three categories. It is some task to try to identify, in each case, Mr Irwin’s complaint and the evidence said to support the complaint. For example, Mr Irwin has placed into evidence the various accounts prepared on behalf of Ms Barr as the executor of the estate. Mr Irwin has annotated those accounts with handwritten comments such as “Date?”. Some entries are highlighted. The point of many of the annotations is not clear to me. None of the accounts are intended to be the estate’s final accounts. And, the annotations, and Mr Irwin’s complaints, seem to be based on some preconceptions about how a deceased estate should be managed, how quickly the task should be completed, and his rights as a beneficiary.
The difficulty in identifying the complaints has meant that the best course is to identify the specific allegations made in paragraphs 5 to 16 of Mr Irwin’s affidavit and to deal with each allegation.
The Duties of Executors/Trustees
Before doing so, it is necessary to explain the duties of an executor and trustee. The duty of an executor and trustee is to perform the trusts honestly and in good faith for the benefit of the beneficiaries.[1] A trustee must not only act honestly but also reasonably.[2]
[1]Reid v Hubbard [2003] VSC 387 at [24].
[2]Reid v Hubbard [2003] VSC 387 at [33].
Personal representatives are not often remunerated. That means that the courts are conscious of two opposing forces — the need to protect beneficiaries, and the need to be tender towards personal representatives who undertake an onerous task and who should not be discouraged from doing so.[3] Thus executors are entitled to great indulgence because of the thankless nature of the office, unless neglect is proved against them. Whether the personal representative is paid or not, or is professional or not, are merely some of the elements in a whole framework of circumstances within which the representative must act reasonably. The honest personal representative is not to be held responsible for a mere error of judgment provided he or she acts with reasonable care, prudence and circumspection.[4]
[3]See Halsbury’s Laws of Australia at [395-5735]
[4]Ibid.
It is therefore expected that the executor/trustee will act prudently and properly in the management of the estate as a whole.[5]
[5]Re Charteris [1917] 2 Ch 379 at 389.
There are two aspects to the executor/trustee’s duty to account. The first is an obligation of the executor/trustee to be constantly ready with his accounts.[6] That includes an obligation to account to the beneficiaries, although not for information beyond that beneficiary’s interest.[7] For present purposes I will call that the continuing duty to account. The second is to perform the ultimate final accounting which will include the distribution of the estate to the beneficiaries after discharge of the estate’s liabilities and any entitlement to commission.[8] For present purposes I will call that the duty to render a final account.
[6]Pearse v Green (1819) 37 ER 327 at 329.
[7]Dal Pont, Law of Succession, 3rd edition at [12.33].
[8]Dal Pont, Law of Succession, 3rd edition at [12.34].
First Complaint: Six Versions of the Estate Accounts
In his affidavit filed in October Mr Irwin says that:
“Throughout the time since my father’s passing – and more specifically since the issue of Grant of Probate on 4 August 2022 – a complete (collectively exhaustive), true and accurate record of my father’s estate from his date of death is yet to be produced by the executor and her legal representatives Adrian Hawkes and Bill Redpath.
As at 21 September 2023 I have received a total of 5 versions of the estate account. Each of these versions are missing account details, which are of particular importance in assessing the true value of the estate…”
As Mr Irwin was keen to point out, by the time of the hearing, the trustees had produced six different versions of the estate accounts. Mr Irwin seemed to start from the position that he was entitled to a complete and accurate set of accounts now, and the production of a number of different versions of the accounts was evidence of incompetence. It is an incorrect assumption. As explained, the executor has both a continuing and a final accounting obligation.
The different accounts were produced as at these dates:
(a)an unknown date but after September 2022;[9]
(b)16 January 2023;
(c)5 July 2023;
(d)30 August 2023;
(e)8 September 2023;
(f)30 October 2023.
[9]This version is undated but states that the dated of the deceased death was 27 December 2022. That is obviously a mistake. The account includes transactions up to the end of September 2022 and so it must have been produced after that.
On each occasion the accounts updated the earlier version. The versions are expressly referred to in the correspondence with Mr Irwin as updated accounts.[10] Those documents are consistent with the executor/trustee’s continuing duty to account. None of the six versions are final accounts. Nor could they be. The executor needs to make the distributions to the residuary beneficiaries before final accounts can be prepared.
[10]See, for example, ex Q, ex M and ex W (“amended Estate Account”) to Mr Redpath’s affidavit of 9 October 2023.
Reading the correspondence between Mr Irwin and the solicitors for the executors/trustees, it seems that the hurdles to be overcome before final distributions can be made to the residual beneficiaries (which include Mr Irwin) are:
(a)The payment by OnePath Custodians of roughly $95,000 to the estate for a superannuation and insurance policy. Mr Irwin disputes that the money should be paid to the estate and contends that the sum should be paid to him. OnePath says that the nomination of Mr Irwin as the beneficiary under the insurance policy expired in May 2014 – some 5 years before the death of Malcolm Joseph Irwin;
(b)Mr Irwin’s failure to sign and return an authority which would enable the estate’s solicitors to deduct from Mr Irwin’s entitlement the assessed costs of $11,146 for the costs of a previous skirmish;
(c)Mr Irwin’s continuing inquiries of the executor.
And so, no final account has been produced. That is because the executor/trustee is still engaged in the administering the estate, mostly comprising battles with Mr Irwin. The failure to produce a final account is not for want of trying. That is not a failure to perform the trusts honestly and in good faith for the benefit of the beneficiaries, and it is not shown to be unreasonable conduct.
Second Complaint: The Good Will of the Banks
Mr Irwin says this in his affidavit:
I have been informed by Bill Redpath of Hawkers Lawyers that it’s not always possible to gain information from financial institutes as this is “subject to the good will of the banks”. This has credited additional doubt in the credibility and actions of the preparation of a final estate account…
It is hard to discern the real complaint here. Mr Irwin appears, both here and in the correspondence, to hold up the quote as open to ridicule. Just why is not clear. The sequence of correspondence, with more than a little antagonism on both sides is as follows:
On 3 May 2023 Mr Redpath, the solicitor from Hawkes Lawyers for the executor wrote to Mr Irwin saying that:
The ATO has requested a further 7 days to respond to our request but, given the (sic) that the late Malcolm Irwin had not filed a tax return for many years, it is unlikely that they will be able to provide much useful information.
We will know in the next 14 days.
We have written to (sic) twice to OnePath regarding any superannuation but have not received a response.
We will follow this up again and anticipate having further news regarding this in 14 days.
In respect of the assessment of costs, in respect of you (sic) unsuccessful application, this is necessary if it cannot be agreed. It will not affect our other enquiries.
Finally, you have been provided with a list of proposed reimbursements to the executor. Please identify the ones you which to object (sic).
Even the spelling and syntax irritated Mr Irwin. He responded on the same day:
Thanks for your letter of second or third of May.[11] Between the grammatical errors and misinformation pertaining to the ATO, I question the integrity of the steps you were supposedly carrying out.
[11]The letter from Hawkes Lawyers was dated 2 May 2023 but the typewritten “2” hand been corrected to a handwritten “3”. That did not escape Mr Irwin’s attention. The letter in fact seems to have been emailed on 3 May 2023 at 3.39pm.
If I may respond to “quote”
The ATO has requested a further seven days to respond.[12] Please provide proof of this request?
Malcolm had not filed tax return for many years. Please specify the period in years per the ATO?
It is unlikely the ATO will be able to provide much useful information. Unless you have been living in a cave please let me remind you that the ATO has information of any TFN at their fingertips. Including, information pertaining to but not limited to: Bank accounts, The ASX, dividends, Rates and Centrelink.
OnePath. We have information available to suggest that the Executor has correspondence corresponded with One Path. Dates and Balances.
Assessment of costs for our Supreme Court hearing. We can work this out when the true value of the estate is attained.
Reimbursements. Complete objection, per my previous emails. We can work this out when the true value of the estate is attained.
I hope this response provide some clarity to your position and that an amicable resolution can be achieved before another Supreme Court hearing. Further to you your decline of my assistance in the realisation of the estate, I am still available to help. Cheers
[12]This part in bold is not in bold in the original. I have added the bold to show that Mr Irwin was quoting from the Hawkes letter. In the subsequent paragraphs I have done a similar thing – the bolding identifies the topic.
As can be seen, Mr Irwin questioned the integrity of the executors and/or their solicitors. He raised a ‘complete objection’ to all disbursements and did so without identifying the grounds of his objections. Somewhat incongruously, and perhaps lacking insight, Mr Irwin once again offered his assistance to the estate.
The next day Mr Redpath, with more than a hint of exasperation, forwarded an email from the ATO which did in fact request additional time to process the executor’s requests for information. Mr Redpath’s email said this:
Below is the request from the ATO.
Malcolm Irwin had not filed a tax return this century.
Do you really object to the executor being reimbursed at all for any expenditure on behalf of the estate?
Later that day Mr Irwin responded by email:
I have no idea what you and Adrian [Mr Hawkes] are talking to the ATO about, and what they are referencing as “our decision” requiring an extension. Their decision on what??
I am simply – and have always been – after a” (sic) a true and accurate estate accounting, including ALL bank accounts from the date of death. If you and the Executor are unable to find these I am left with 0 confidence this is being managed in the most efficient way possible. I am also simultaneously engaging with a competent Estate Account Assessor to inform this request.
Of course I am not objecting to all reimbursements. Some of them remain very questionable and excessive.
It is worth noting that, having challenged the integrity of the steps the executor was taking in relation to the ATO, and having been provided with an email that demonstrated the accuracy of what the solicitors had said, Mr Irwin did not backtrack on his questioning of the integrity but instead sought to question the executor on the contents of the ATO email. And, the precise objections Mr Irwin had to the reimbursements, and the grounds of those objections, remained unidentified.
On 23 May 2023 Mr Irwin emailed Mr Redpath saying:
I have confirmed with another very experienced law firm it is an extremely simple process for you and your client to approach financial institutions to seek information on any accounts held by my father. Have you done this?
I have also confirmed with the ATO they have provided the information by the date advised, which is now over two weeks ago!
Please confirm when I will receive the revised estate accounting not later than COB tomorrow, 24 May 2023.
The imperious tone to that email was met with a combative email from Mr Redpath on 26 May 2023:
Thank you for your email of 23 May 2023 and your gratuitous advice.
We are aware of this avenue but it does depend on the goodwill of the banks for this avenue to work.
We are satisfied that there are no further accounts but this will be confirmed by the ATO by 20 June 2023.
We believe that there are funds in One Path and are in the process of lodging the documents to obtain them.
We will then be in a position to provide an updated account in respect of the Estate. We should be able to provide this information by 30 June 2023.
We note that your issues relate to the residue of the Estate.
In the circumstances, we propose to honour the special gifts in paragraphs 2.3 – 2.6 of the will of 11 October 2019.
Please advise within seven days of the date of this letter whether you object to this course and, if so, the basis of your objection. [emphasis added]
And so, in the context of acrimonious correspondence between Mr Irwin and Mr Redpath, Mr Redpath says that obtaining information on the deceased’s accounts was dependent on the goodwill of the banks. There is no evidence to suggest that what Mr Redpath explained was false or unrealistic. Indeed, in an era where bank account details can be obtained by accountholders online, and siloed aspects of banking business is conducted by call centres, it would not be surprising that information that fell outside that normally available to accountholders required some effort to communicate with a responsive representative of the bank.
In any event, even if what Mr Redpath said was not accurate, it is impossible to see how the statement comprises a breach of the duty of an executor and trustee to perform the trusts honestly and in good faith for the benefit of the beneficiaries.
Third Complaint: Withholding of Assets
In his affidavit Mr Irwin says this:
Some financial assets belonging to the estate have been withheld even though they were known to the executor and her legal representatives. This suggests that the executor and her representatives are unable and/or unwilling to execute their legal obligations to the estate (Exhibit J)
The context of this complaint, and exhibit J, is that on 8 September 2023 Hawkes Lawyers wrote to Mr Irwin regarding an email Mr Irwin had sent as well as a notice of objection. The letter addressed each of the objections. The first objection related to the accounts. The answer from Hawkes Lawyers addresses the details of various accounts held by the deceased with Suncorp and ANZ, as well as reimbursement and fees, a proposed partial distribution, the proposed payment from OnePath, and the enclosed up-to-date estate accounts.
On 10 September 2023 Mr Irwin responded. He said the updated Estate account is “insufficient and unacceptable”. The reasons for that “included” two specific concerns about bank accounts. The first was an ANZ account ending 293. Mr Irwin complained that it was “fundamentally incorrect” that the account had a nil balance as at the date of the deceased’s death. He was concerned at the lack of investigation. The second was that the executor’s stance that there were no other bank accounts was unsubstantiated.
That led to the letter from Hawkes Lawyers which Mr Irwin references as exhibit J. As to the first concern Hawkes Lawyers said:
We enclose a copy of all statements provided to us by the ANZ bank in respect of this account. The account was opened on 11 February 2020. We find this extraordinary as Mr Irwin died in December 2019!
The ANZ bank are unable to offer any explanation as to the circumstances in which this account came into being.
On 11 February 2020 it had a nil balance. When it was closed on 25 January 2023 it had a nil balance. At no stage does there appear to have been transaction this account.
It seems reasonable to assume that at no stage (“all material times”) were there any assets of the estate held in this account.
Subsequently, on 18 September 2023, Hawkes Lawyers said this about the mystery bank account:
In respect of ANZ account… 293, ANZ Estates have provided us with the opening and closing balance of this account. We cannot force them to tell us the circumstances in which ANZ opened this account and, given there was always a nil balance, there seems little point in doing so.
We can assume that the late Mr Irwin did not open this account. The executor would not have able to open an account in Mr Irwin’s name and says that she did not. When faced with the choice of “bank error” or “conspiracy” the evidence supports points to the former. ANZ Estates were contacted about this on a number of occasions because they were not forthcoming with a response.
I am unable to see why the executor’s investigation and handling of this issue is a breach of its duty to perform the trusts honestly and in good faith for the benefit of the beneficiaries. The issue was investigated. At a certain point, the costs of pursuing the issue were likely to become disproportionate to the prospect of any benefit to the estate. The mystery account had a zero balance from the beginning to the end. There were no transactions on the account. Further pursuit of the issue was pointless.
Of course, an executor is not bound to pursue every investigation of every possible asset of the estate with the persistence of Scott of the Antarctic. An estate can be depleted by unreasonable and pointless investigations just as it can be depleted by inadequate investigations.
The second concern raised by Mr Irwin was dealt with by Hawkes Lawyers in this way:
We advise that we did not need to make further enquiries in respect of other bank accounts because the deceased left details of his interests including his bank accounts. We enclose an extract from Mr Malcolm Irwin’s instructions setting out the bank account details.
In the circumstances, the appropriate enquiries were made. This is confirmed by the ATO documents which would have added identified any interest bearing accounts.
We are happy to provide you with copies of the enquiries we made with the ANZ bank and Suncorp.[13]
[13]On the copy of Hawkes Lawyers’ letter dated 13 September 2023 that comprises ex J to Mr Irwin’s affidavit, Mr Irwin has handwritten, after this paragraph: “(received enquiries, but responses refused)”. It is unclear what that means. It could mean that ANZ and Suncorp received the enquiries but refused them, or it may mean that Mr Irwin received copies of the enquiries, but further responses were refused by Hawkes Lawyers. That ambiguity arises because the precise complaint is not articulated.
We did not need your assistance to do what we had already done by way of enquiry.
We have asked you on several occasions if you are aware of any other accounts and you have not been able to identify any further accounts.
It is in everyone’s interest that any other accounts are identified. Unless you can provide some more specific information then we have to assume there are no other accounts.
Again, no evidence demonstrates why that is an unreasonable stance for the executor to take. The executor is entitled to make a judgment about the extent of its pursuit of any further bank accounts. That judgment will no doubt be based on the documentary evidence in the estate papers and on all the circumstances. Nothing here demonstrates that the executor’s stance is an unreasonable one. Mr Irwin does not point to any evidence of further bank accounts or even any prospect of further fruitful inquiries.
There is a related complaint, or perhaps the same complaint but expressed in a different way. In his affidavit Mr Irwin says this:
Having previously been my father’s Power of Attorney it was known he had many accounts (including credit cards) with a number of different financial institutions. The ability to identify all accounts rests with the executor and her legal representatives.
No further accounts have been identified. The executor’s solicitors have advised that the deceased left details of his bank accounts, no further accounts are disclosed by the ATO enquiries, and they have otherwise made enquiries. In that context, the conduct of the executor is not shown to be unreasonable.
Fourth Complaint: Refusal of Assistance
Mr Irwin complains that, on multiple occasions he has offered his assistance to the executor, and this has been refused.
It is certainly true that Mr Irwin has offered his assistance. He has done so on a number of occasions. And it is true that the offers of assistance have been ignored.
This complaint, of course, is misconceived. The executor is not obliged to accept a beneficiaries’ offer of assistance. The executor was chosen by the deceased to administer the estate. The executor is both entitled and obliged to perform the administration of the estate personally and with whatever assistance, paid or unpaid, the executor considers reasonably considers to be appropriate.
Mr Irwin does not contend that he possesses some special knowledge or expertise,[14] or that there is some other sound reason which requires the executor to accept his offers of assistance. Rather, perhaps with a lack of insight, Mr Irwin has mounted a sustained attack on the executor’s administration whilst simultaneously offering his assistance. The recent history of the administration suggests that accepting Mr Irwin’s offer of assistance is likely to lead to further battlegrounds.
[14]Mr Irwin previously acted as the deceased’s attorney, but this is not a case where there is, for example, a complex business to be run.
Fifth Complaint: Estate Distributions
Mr Irwin’s next complaint was in these terms:
Estate Distributions: Given a true estate accounting could not be determined, I objected to making any preliminary distributions. Despite my objections distributions were made to some beneficiaries and the executor herself to the amount of approx. $135,982.45 (Exhibit L)
Again, there is a misconception. None of the beneficiaries have a right of veto over distributions by the beneficiary. The fact that Mr Irwin objected is not a reason for the executor to decline to make a distribution. The executor has no obligation to secure the agreement of all or even any of the beneficiaries to a proposed distribution. The executor is simply obliged to perform the trust honestly and in good faith.
Here, the distributions made by the executor were made in accordance with the specific bequests. Indeed, there is no allegation that the distributions were contrary to the will or the settlement agreement.
Sixth Complaint: ATO Information
Mr Irwin’s sixth complaint concerns the ATO information:
ATO information provided has been limited to “Payer Names” only – details of any bank accounts have not been disclosed. It’s also known ATO information would only be present if an account was earning interest, meaning credit card details are absent even if they have a surplus balance (Exhibit M).
Further, the ATO records provided indicate a reduction in balance of some accounts during a period whilst probate wasn’t granted. Interest earned with Suncorp Metway from the periods of FY20 ($1741.73) through to FY22 ($286.34) indicate a serious reduction in balance (approx.. ~ 600%) (also Exhibit M)
Again, it is difficult to discern the precise complaint. One aspect of the complaint seems to be that the ATO information obtained by the executor’s solicitors has its limitations. That is certainly true. But there is no evidence that the ATO information, such as it is, has been disregarded or ignored. The evidence in the correspondence is to the contrary; the ATO information has been added to the other information available to the executor and her solicitors.
The second part of the complaint concentrates on the interest earned on the Suncorp account. That account was agreed by the parties to be an “associated bank account”, that is associated with the deceased’s shareholdings, and therefore the subject of a specific bequest to the executor, Ms Barr. On that basis, Mr Irwin has no legitimate interest in this Suncorp bank account. A beneficiary is not entitled to information beyond that relevant to that beneficiaries’ interest.[15]
[15]Dal Pont, Law of Succession, 3rd edition at [12.33].
In any event, it appears that Hawkes Lawyers sent Mr Irwin copies of the Suncorp bank statements and advised that the balance was paid to Ms Barr on 3 July 2023.[16]
[16]See ex P(b) to Mr Irwin’s affidavit.
Seventh Complaint: Errors
Mr Irwin’s next complaint is as follows:
There are proven instances where documentation authored by the executor’s representatives have made errors including referencing an incorrect date of death on one of the versions of the estate account (Exhibit D); quoting incorrect details (OnePath Allocated Pension 5486250 quoting an ANZ Insurance Police number 26382826 Exhibit O); and incorrectly advising the beneficiary is entitled to the balance as at date of probate (Exhibit P (a)) and incorrect spelling of beneficiaries names (Exhibit P (b)). Over the course of this entire period this has added to the doubt of the ability to deliver a true and accurate estate account.
The errors identified by Mr Irwin are not substantive errors. They are typographical or minor errors. They are not shown to have produced any loss to the estate. Indeed, Mr Irwin does not allege that. He merely says that the errors have added to his doubts over the ability of the executor to deliver a true and accurate estate account. The errors, and Mr Irwin’s subjective doubts arising from those errors, are not a basis for removing the executor, or a basis for relief under s 52 of the Succession Act 1981.
Eighth Complaint: Convoluted Communications
Mr Irwin’s next complaint is expressed in this way:
It has also been a concern with the convoluted nature in which parts of information relevant to the estate has been communicated, including the inability to search for key words or numbers as everything is in a photocopies format and no spreadsheets have been provided.
There appear to be two aspects to this complaint. The first is the alleged convoluted communication of information. A fair reading of the correspondence between the estate’s lawyers and Mr Irwin does not disclose a convoluted communication of information. Rather, a fair reading discloses a challenging task of responding to Mr Irwin’s various complaints and demands for information. In some cases, Mr Irwin chose not to identify with precision what his objections were which made it impossible for the executor’s lawyers to properly respond.
The second aspect to Mr Irwin’s complaint appears to be that the administration of the estate has failed to utilise technology so that there are no search capabilities or spreadsheets – presumably excel spreadsheets. Suffice it to say that no evidence demonstrates that the estate cannot be competently managed without the benefit of technology.
Ninth Complaint: Notice of Objections
Mr Irwin’s ninth complaint is as follows:
Whilst some correspondence has since been received it is yet to address all items as outlined in the Notice of Objections, per Rule 646 (Exhibit N (a) and N (b)). The responses provided by the executor and her legal representatives are incomplete and therefore unsatisfactory. In their responses they have admitted there are no other accounts so it seems lodging a further objection will not drive any positive outcomes for the Estate and seeking an Order is now my only available option (Exhibits P (a) and P (b)).
The correspondence between Mr Irwin and Hawkes Lawyers has been both acrimonious and voluminous. In the course of that correspondence Mr Irwin served two notices of objections pursuant to rule 646 of the Uniform Civil Procedure Rules 1999 – one on 16 December 2022 and one on 25 July 2023.[17] There were responses to the notices and further correspondence. And now Mr Irwin says that the executor “is yet to address all items” but does not say which items have not been addressed.
[17]There is a third notice dated 21 February 2022 (which should be 2023) but that is apparently not relied on.
Neither party embarked on the exercise of identifying for the court what, if anything, remained of the information sought by the notices. Mr Irwin contended that the responses to the notices were incomplete without specifically identifying what remained. The executor says that each of the notices have been answered sufficiently. The fact that Mr Irwin has not identified precisely what he says is outstanding makes it impossible to make a finding of fact about that issue. Certainly, the fact that there is remaining information is not able be readily discerned from the correspondence.
The other problem is that the notices of objections are really framed contrary to rule 646. The rule requires the objector to identify the item in the estate account to which the beneficiary objects. Rather than comply with that rule Mr Irwin makes objections that appear to be divorced from the estate accounts or any specific item in them. For example, the second objection in the July 2023 objections starts: “Substantial reimbursements and fees have been consumed by the Executor, including: In excess of $25k for ‘reimbursement’…”. The rule requires some precision about both the specific item in the accounts objected to and the reasons for that objection. That requirement is not satisfied.
Conclusions
This is an unappealing application for the court to exercise its discretion to order the estate accounts to be assessed and passed (paragraph 1 of the originating application). As discussed above, it is doubtful that Mr Irwin has complied with rule 646, up-to-date accounts have been prepared and supplied, and the final account cannot be prepared because there are still issues to be resolved, money to be received and distributions to be made.
It is also an unappealing application for damages or interest under s 52 of the Succession Act 1981 (paragraph 2 of the originating application). There is no basis for concluding that the executor has been negligent in the performance of her duties or that the estate has been diminished even one dollar by reason of her administration.
It is also an unattractive case for the court to exercise its discretion to remove the executor (paragraph 3 of the originating application). There has been no misconduct. The administration is well advanced and a change to the executor would be likely to cause additional cost, delay and disruption to the administration of the estate.
For those reasons, there are no proper grounds to Mr Irwin’s complaints. His application should be dismissed. I will hear the parties on costs.
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