Jurkiewicz v Jurkiewicz
[2013] ACTSC 89
•16 May 2013
STEFAN CHARLES JURKIEWICZ v WALDEMAR JURKIEWICZ & ANOR
[2013] ACTSC 89 (16 May 2013)
PROBATE AND ADMINISTRATION – will of mother appointing sons as joint executors – intractable dispute between sons as to extent of assets – leave granted to independent solicitor to apply for letters of administration with will annexed – applicant’s costs to be paid out of estate – no order for costs of unsuccessful respondent
Administration and Probate Act 1929 (ACT) s 25 and s 32
Courts Procedures Rules 2006 (ACT) r 3114
Estate of Keith Chandler Crane (2005) 93 SASR 198
Bourdales v Carroll [2007] NSWSC 1057
Simpson v Hodges [2007] NSWSC 1230
Yazbek v Yazbek (No 2) [2012] NSWSC 783
No. SC 256 of 2012
Judge: Master Harper
Supreme Court of the ACT
Date: 16 May 2013
IN THE SUPREME COURT OF THE )
) No. SC 256 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: STEFAN CHARLES
JURKIEWICZ
Applicant
AND: WALDEMAR JURKIEWICZ
First Respondent
AND: THE PUBLIC TRUSTEE
FOR THE ACT
Second Respondent
ORDER
Judge: Master Harper
Date: 16 May 2013
Place: Canberra
THE COURT ORDERS THAT:
John Astley Buxton have leave to apply for letters of administration of the estate of the late Alexandra Jurkiewicz with her will dated 5 May 2005 annexed.
The applicant’s costs of the application be paid out of the estate of the late Alexandra Jurkiewicz.
Alexandra Jurkiewicz died in February 2011. Her husband had predeceased her by almost twelve years. She was survived by four sons. She made her last will on 5 May 2005, appointing the two elder sons (the applicant and the first respondent) as executors. There has not yet been any application for probate or administration of her estate.
The applicant instituted these proceedings by originating application in August 2012, asking that both brothers be removed as executors and that the second respondent, the Public Trustee, be appointed as administrator. The applicant seeks an ancillary order that the first respondent pay his costs of the proceedings.
The grounds stated in the application are that the named executors have failed to apply for probate or to renounce their appointments; the first respondent continues to make serious unsubstantiated allegations against the applicant about matters not relevant to obtaining a grant of probate; and due to the history between the parties, no agreement is likely to be forthcoming to enable the named executors to obtain a grant of probate.
The application is supported by affidavits by the applicant and by a solicitor having the conduct of the matter within the firm acting for him. Both annex a substantial bundle of correspondence in the form of letters and emails between the application and his solicitor on the one hand and the first respondent on the other. The applicant also annexes a copy of his mother’s will. There is no issue about its contents or validity.
By her will, the deceased left monetary legacies ($30,000 each) to two of her grandsons and a car to a third grandson. She left “any share or shares that I own at my death in Edbro Holdings Pty Ltd” to the applicant and a younger son, Christopher, equally. She left her shares in another named company to the applicant. She left her house at O’Connor and her household chattels to the first respondent. She left the residue of her estate to her four sons equally.
There is a dispute between the brothers as to what assets comprise the estate.
The family, through corporate and trust structures, owned and operated retail businesses dealing in camping and outdoor leisure equipment. The first respondent asserts that his late mother owned a substantial share of the family business and that this should be an asset in her estate. The applicant does not accept this.
The first respondent also asserts that the applicant was at the date of his mother’s death indebted to her for a large amount of money. The applicant denies this.
It appears that one of the two younger brothers supports the applicant, and the other supports the first respondent.
During the hearing of the application I was informed that the applicant no longer seeks the appointment of the Public Trustee, but rather of a solicitor, Mr JA Buxton, a partner in the firm Dibbs Barker with extensive experience in the administration of estates.
The first respondent seeks the removal of the applicant as a joint executor, leaving him (the first respondent) as sole executor.
The applicant was extensively cross-examined by the solicitor representing the first respondent on the hearing of the application. The applicant made no concessions which detracted from his affidavit evidence. The solicitor cross-examining him put, undoubtedly on instructions, propositions which, if true, would have reflected poorly on his honesty and integrity.
Having read the affidavit material and heard the oral evidence of the applicant, I am satisfied that there is no prospect of the named executors working together in the interests of the estate. Their relationship has deteriorated to a point where such an expectation would be quite unrealistic.
The applicant, in effect, offers to stand aside as executor provided that an independent administrator is appointed. The first respondent is more than happy for the applicant to stand aside but is not prepared to do so himself.
Counsel for the applicant and the solicitor representing the first respondent took me to a number of authorities, none from this Court. Most are decisions of single judges of the Supreme Court of New South Wales. Other decisions are of single judges of the Supreme Courts of South Australia and Western Australia.
The applicant relies on s 25 of the Administration and Probate Act 1929. That section applies where a named executor fails to prove the will or renounce probate within six months of the testator’s death. This Court is given a discretion, on application, to make an order for administration of the estate, and any other orders it considers appropriate in such circumstances.
Section 32 of the Act gives the Court a specific power to remove and replace an executor or administrator, but only after a grant of probate or administration. Section 25 accordingly seems to be the applicable section, although it must be somewhat unusual for an application under the section to be made by a named executor who has failed to prove the will. In the present circumstances it is understandable that the applicant has made the application in reliance on the section.
Rule 3114 of the Courts Procedures Rules 2006 deals with the mechanics of applications under s 25. The rule provides that a person interested in the estate may apply to the Court for orders (the applicant is undoubtedly such a person) and that the Court may make orders in relation to administration of the estate, and other orders as the Court considers just.
Besanko J in Estate of Keith Chandler Crane (2005) 93 SASR 198 made an order passing over a named executor. His Honour referred to two principles to be applied in determining whether to adopt that course. The first was that a named executor was ordinarily entitled to a grant. The second was that the court in exercising jurisdiction does so having regard to the due administration of the estate and the interests of beneficiaries. The Court, his Honour said, must always keep in view the due and proper administration of the estate and the interests of the parties beneficially entitled.
In Bourdales v Carroll [2007] NSWSC 1057, Young CJ in Eq directed a grant of letters of administrations in favour of the Public Trustee rather than the executor named in the will, in circumstances where there was a dispute within the family. His Honour said that the matter was finely balanced but he took the view that it would be cheaper in the long run to have an independent person administer the estate. His Honour ordered that the costs of both sides of the application be paid out of the estate.
In Simpson v Hodges [2007] NSWSC 1230, Hall J noted a degree of ill will and lack of cooperation between the parties, who had been jointly named executors and were the son and daughter of the testator. The view his Honour took was that both were bound to act properly as executors, and that there was very little left to do in terms of administering the estate. He refused to appoint the Public Trustee in place of the named executors and directed a grant in their favour.
In Yazbek v Yazbek (No 2) [2012] NSWSC 783, Slattery J ordered the appointment of an independent solicitor as administrator of the estate in place of the named executors. His Honour noted that the basic rule was that the appointment must be one which advanced the real object of administration, being the due and proper administration of the estate. His Honour thought that the independent solicitor’s overall objectivity would assist in the efficient conduct of parallel litigation between the parties, and might lead to some ultimate saving in costs at a strategic level. His Honour noted that it had often been observed that where there are likely to be strongly competing contentions between members of the one family, it was often cheaper in the long run to have an independent person administer the estate. His Honour ordered that the costs of both sides be paid out of the estate.
There is no real question about the principles to be applied. The reported decisions generally turn on their own facts and involve the exercise of a discretion.
Whilst I am unaware of any other litigation within the family, there is clearly a possibility of such litigation. It is likely that the applicant and the first respondent would be opposing parties in any such litigation. Although the first respondent is a solicitor, it seems to me that it would place him in an invidious position to be sole executor of his mother’s will, and I have no doubt that the applicant would lack any confidence in his brother’s ability to look after his interests as a beneficiary.
I am satisfied that the best course in this estate is to appoint an independent administrator. I am satisfied also that there would be benefit in appointing Mr Buxton rather than the Public Trustee.
In the circumstances it seems to me that the appropriate order is to grant leave to John Astley Buxton to apply for letters of administration of the late Alexandra Jurkiewicz with the will annexed.
As to costs: the application was properly brought by the applicant who should have his costs out of the estate. The opposition to the application by the first respondent was in my view unjustified. The hearing of the application was unnecessarily extended by a lengthy cross-examination of the applicant which did no more than emphasise the desirability of the appointment of an independent administrator. In the circumstances it is appropriate that the first respondent bear his own costs of the opposition to the application, and there will be no order in respect of those costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 16 May 2012
Counsel for the applicant: Mr WL Sharwood
Solicitors for the applicant: Meyer Vandenberg
Counsel for the first respondent: Mr AC Powrie
Solicitors for the first respondent: Powrie & Co
Date of hearing: 12 October 2012
Date of judgment: 16 May 2013
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