Kenneth Leslie Read as executor of the estate of the late Brenton Glynn Brenton v Kenneth Read beneficiary of the estate of the late Brenton Glynn Peters - [2019] WASC 254

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KENNETH LESLIE READ as executor of the estate of the late BRENTON GLYNN BRENTON -v- KENNETH READ beneficiary of the estate of the late BRENTON GLYNN PETERS [2019] WASC 254
CORAM:   MASTER SANDERSON
HEARD:   12 JUNE 2019
DELIVERED          :   16 JULY 2019
FILE NO/S:   CIV 1263 of 2019
BETWEEN:   KENNETH LESLIE READ as executor of the estate of the late BRENTON GLYNN BRENTON
First Plaintiff
BRUCE LANSDOWNE as executor of the estate of the late BRENTON GLYNN PETERS
Second Plaintiff
AND
KENNETH READ beneficiary of the estate of the late BRENTON GLYNN PETERS
First Defendant
BRUCE LANSDOWNE beneficiary of the estate of the late BRENTON GLYNN PETERS
Second Defendant
SYLVIA JOHANNSEN beneficiary of the estate of the late BRENTON GLYNN PETERS
Third Defendant
SHEILA MICHIE beneficiary of the estate of the late BRENTON GLYNN PETERS
Fourth Defendant
BETHAN SHELLEY PETERS by next friend ROBIN ANDREA COOPES-WILLIAMS
Fifth Defendant

Catchwords:

Application for judicial advice and directions

Legislation:

Trustees Act 1962 (WA)

Result:

Advice given

Category: B

Representation:

Counsel:

First Plaintiff	:	Dr J J Hockley
Second Plaintiff	:	Dr J J Hockley
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	Mr C V Eastwood

Solicitors:

First Plaintiff	:	Douglas Cheveralls Lawyers
Second Plaintiff	:	Douglas Cheveralls Lawyers
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	Eastwood Law

Case(s) referred to in decision(s):

Blatchford v Laine [2018] WASC 207
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42

MASTER SANDERSON:

Brenton Glynn Peters (the deceased) died by his own hand on 13 October 2017. The deceased left a will dated 25 February 2015. The plaintiffs, who were appointed executors under the terms of the will, received a grant of probate on 16 April 2018. The deceased's estate has an approximately value of $1.5 million. Each of the executors (named as the first and second defendants in that capacity) received 10% of the deceased estate. Sixty percent of the estate was left to the third defendant and 20% to the fourth defendant. The fifth defendant, who is the daughter of the deceased, did not benefit under the terms of the will.
On 21 November 2018 the fifth defendant issued proceedings seeking revocation of the grant of probate: Peters (by her next friend Robyn Andrea Coopes‑Williams) v Read.[1] A statement of claim was endorsed on the writ. Essentially what is pleaded (in a very detailed statement of claim) is that the deceased lacked testamentary capacity as at the date he drafted his will. No reference is made in the statement of claim to any medical evidence supporting this conclusion. The evidence relates solely to the behaviour of the deceased prior to and at the time of making his will.
[1] Supreme Court of Western Australia CIV 3005 of 2018.
Remarkably enough neither the third or fourth defendants in these proceedings have entered an appearance nor have they indicated any intention to take part in the revocation proceedings. The third defendant lives in Demark and the fourth defendant lives in the United Kingdom. Both appear to have had some form of romantic relationship with the deceased, details of which are not presently relevant. However, it is important to note in the context of this application that neither has responded to the plaintiffs' approaches. There is nothing to suggest any involvement in the future.
Against that background the plaintiffs brought an application under s 92 of the Trustees Act 1962 (WA). The application has been amended twice and the present version is dated 11 June 2019. In that application the plaintiffs seek the following orders (marking up omitted):
1.Advice and Direction by the Court (a 'RE Beddoe Order') pursuant to s 92 of the Trustees Act 1962 (WA) in their capacities as Executors of the Estate of the late BRENTON GLYNN PETERS whether they are justified in defending a legal action CIV 3005 of 2018 in the Supreme Court taken by BETHAN SHELLEY PETERS (by her next Friend ROBIN ANDREA COOPES-WILLIAMS) against them in their capacity as executors and trustees of the Estate of the late BRENTON GLYNN PETERS (Estate), to set aside the deceased's Will dated 25 February 2015 (Will), on the grounds of lack of testamentary capacity, which would result in the testator dying intestate with the whole of his estate passing to his minor daughter, and whether they are justified in commencing a counterclaim, in their capacities as executors and trustees of the Estate, for a grant to them, in their capacities as executors and trustees of the Estate, of probate of the Will in solemn form of law.
2.Court Orders to provide advice and direction to the Executors as to whether they are authorised to pay all legal cost incurred by them including the costs of and incidental to the action in their capacity as Executors from the Estate.
3.If the Court grants the Executors approval to defend the action, that the Court provide direction as to whether there are any limitations on that approval.
4.If the Court advises or directs the Executors that it is in the interest of the Estate to defend the action, an order that the Executors can pay all costs of and incidental to this application on a solicitor and own client basis from the Estate.
5.Directions from the Court with regard to:
(a)filing affidavits and/or submissions by any of the parties for a hearing of this application;
(b)filing any answering affidavits and/or submissions;
(c)a date and time for the hearing of this application; and
(d)service of this summons on the beneficiaries of the estate as two of the beneficiaries live outside of Australia.
6.Such further or other order or orders that the Court deems fit.
As I understand the fifth defendant's position, she does not oppose the amendment to the originating summons. Leaving to one side some minor amendments as to the description of the parties the latest version of the originating summons is amended to seek leave to commence a counterclaim (par 1). This is clearly a necessary amendment. If the revocation proceedings are unsuccessful it follows there should be a grant of probate in solemn form rather than under the rules relating to uncontentious grants. Accordingly, the plaintiffs will have leave to re‑amend the originating summons in terms of the minute filed 11 June 2019.
The principles relevant to an application of this nature were set out by Vaughan J in Blatchford v Laine [2018] WASC 207 [48] – [58]. Both parties accepted it was those principles which govern this application and I adopt those principles without repeating them. Counsel for the plaintiff did, however, rely in particular on the High Court decision in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42. In particular counsel relied upon what was said by Gummow ACJ, Kirby, Hayne and Heydon JJ to the effect that:
A trustee who is sued should take no step in defence of the suit without first obtaining judicial advice about whether it is proper to defend the proceedings.[2]
[2] Macedonian Orthodox Church [74].
It was the fifth defendant's position this application was premature. Counsel pointed to the fact the fifth defendant had proposed the matter go to mediation on the understanding that the plaintiffs' costs of the mediation would be met out of the estate. The fifth defendant maintained if that course was followed there would be a saving in costs to all parties. If a settlement was reached then presumably the parties could seek court approval of that settlement – it is difficult to see how any settlement could take effect without there being court approval. Anyway, the fifth defendant maintained that to seek approval for the executors to defend the claim and pursue the counterclaim at this stage was unwarranted.
With respect, that submission must be rejected. The position here is complicated by the fact the third and fourth defendants have elected not to take any part in the proceedings. There is presently grant of probate pursuant to which they stand to receive significant benefit. That grant issued by the court can only be revoked if the court is satisfied the deceased did not have testamentary capacity when he drafted his will. The law requires the plaintiffs to satisfy the court the deceased did have capacity at the date he drafted his will. At the very least the plaintiffs would need to investigate the behaviour of the deceased to see whether or not the allegations found in the statement of claim in the revocation proceedings can be made out. Perhaps they can. If so, the plaintiffs may take a neutral position in the revocation proceedings. But unless and until the claim is investigated they are not in a position to make any decision as to what attitude they will adopt.
Furthermore, it is difficult to see how, without making some enquiries as to the deceased's mental condition, there could be any meaningful negotiation. Prima facie, the plaintiffs are in a position where they are bound by virtue of their position as executors to support the will and argue for its validity. That is so even though the third and fourth defendants have decided not to participate in any proceedings. In fact the obligation to support the validity of the will is perhaps more acute because the third and fourth defendants are not participating.
All of those comments must be set against the backdrop of what the High Court said in the Macedonian Orthodox Church decision. The plaintiffs have sought directions at the earliest possible time and they were right to do so. Furthermore, they lodged with the court a confidential opinion of counsel on the merits of the revocation proceedings. It must be acknowledged that this advice was given before any investigation relevant to the deceased's mental condition was undertaken. It is not appropriate that I say anything in these reasons which could, in any way disclose the advice which was given. It is enough if I say that, as presently advised, there is nothing to suggest the executors are behaving improperly in seeking directions.
For these reasons I propose to make the orders 1 ‑ 5 sought by the plaintiffs in the minute of re‑amended originating summons filed 11 June 2019. Further programming orders may be necessary and I will hear the parties in that regard. I will also hear submissions with respect to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
Associate to Master Sanderson
16 JULY 2019