Lawson v Lawson
[2014] NSWSC 693
•26 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: Estate of Carmelita May Lawson; Lawson v Lawson [2014] NSWSC 693 Hearing dates: 26 May 2014 Decision date: 26 May 2014 Jurisdiction: Equity Division - Probate List Before: Lindsay J Decision: Order made for a grant of administration in favour of an independent licensed trustee company where beneficiaries in conflict
Catchwords: SUCCESSION - Wills, probate and administration - Probate and letters of administration - Administration with will annexed - To whom granted - Breakdown in relationships of beneficiaries named as executors - Need of independent Administrator Legislation Cited: - Cases Cited: - Texts Cited: - Category: Principal judgment Parties: Margaret Eleanor Lawson (Plaintiff)
Richard James Andrew Lawson (First Defendant)
Janet Elaine Lawson (Second Defendant)Representation: Counsel:
J Kearney (Plaintiff)
R Lawson in person (1st Defendant)
MS Willmott SC (2nd Defendant)
Solicitors:
McIntosh McPhillamy & Co (Plaintiff)
McCabes Lawyers (2nd Defendant)
File Number(s): 2014/00030713
Judgment - EX TEMPORE
Before the Court is an application for a grant of administration in relation to the will dated 4 July 1968 of Carmelita May Lawson, who died on 2 November 2011, aged about ninety nine years.
By her will, the deceased nominated her three children (the plaintiff, the first defendant and the second defendant, all now adults) as her executors and left the whole of her estate to them.
The estate is valued at about $4 million. It comprises of a farming property at Molong, a residential property at Orange and a residential property at Auburn. There is, additionally, just under about $1 million that is held in liquid form by the New South Wales Trustee.
The three children have strained relationships. They agree that they could not work together as executors. They invite the Court to order that administration of the estate be granted to an outside party.
The plaintiff and the second defendant favour Perpetual Trustee Company Limited, a licensed trustee company. The first defendant favours the New South Wales Trustee.
Both prospective administrators have consented to act as administrator.
The siblings part company over the suitability, or otherwise, of the New South Wales Trustee.
The New South Wales Trustee acted as financial manager of the estate of the deceased between 7 August 2000 and her death in 2011. It was appointed financial manager by an order of the Guardianship Tribunal.
The first defendant submits that he, and he believes the deceased, were satisfied with the service rendered to the deceased and her estate by the New South Wales Trustee. He has no objection to Perpetual Trustee Company Limited, but believes that the New South Wales Trustee would make the better administrator: in large part, because it is familiar with the estate of the deceased and with tensions within the family.
The plaintiff and the second defendant submit that there is a real possibility that the administrator of the deceased's estate will be required to consider whether the New South Wales Trustee, as financial manager, can and should be brought to account for maladministration of the estate over the eleven years that the financial management order was in place.
The possibility that the New South Wales Trustee might be called to account as financial manager focuses upon disputes relating to land tax liabilities and delays in the winding up of the family company, JA Lawson Holdings Proprietary Limited.
The first defendant says that he is not satisfied that there was any maladministration on the part of the New South Wales Trustee.
The Court is in no position to make a definitive ruling about that topic.
Another point made by the plaintiff and the second defendant which may not be entirely fair in the context of the way managed estates are managed is that the New South Wales Trustee, as financial manager, allowed the first defendant to occupy the Auburn property as his residence without the payment of rent.
The first defendant, for his part, says that his mother, the deceased, had never charged him rent for living at the property, and the New South Wales Trustee was doing no more than, as it is allowed, to continue a family arrangement that had met with the approval of the managed person.
The Court has to make a decision based upon an evaluation of what is in the best interests of due administration of the estate, having regard to all the circumstances of the particular case, including any preference expressed by the deceased and the respective interests of the beneficiaries.
A factor, but not a controlling factor, is that a majority of the beneficiaries, in terms both of their financial interests and their number, favours a grant of administration to Perpetual Trustee Company Limited.
Although there may appear to be potential for difficulties to emerge in the administration of the estate, arising perhaps from deep-seated antipathies between the beneficiaries, as well as from questions about the management of the deceased's estate over the eleven years preceding her death, the administration of the estate does not appear to be overly complicated. There are three pieces of real estate that need to be realised in circumstances in which one or another of the beneficiaries may wish to participate as a purchaser, and there is a liquid fund of about one million dollars. With any luck, if the parties, the beneficiaries restrain their unhappy feelings towards one another, the administration of the estate will be relatively smooth.
It is however important in a case such as this to ensure that the administrator of the estate is, and is seen to be, independent of all of the beneficiaries, and able to make an assessment objectively, and fairly, about whether or not there was maladministration in the course of management of the deceased's estate by a financial manager.
In those circumstances, in my judgement, the proper course, in the interests of due administration of the estate, is to order that there be a grant of administration to Perpetual Company Trustee Limited. I propose, accordingly, to make such an order.
"Is there any reason why I shouldn't make this a grant in solemn form?
"Mr Willmott: No. The parties are all present and it would involve probably more certainty.
Mr Kearney: No."
"And is there any reason why I shouldn't order that all the costs of all the parties come out of the estate?
Mr Kearney: No.
Mr Willmott: No.
"Is there any reason why it should not be on an indemnity basis for everybody?
Mr Willmott: No.
Mr Kearney: No."
I make the following orders:
(1) Order that there be a grant, in solemn form, of administration of the estate of Carmelita May Lawson (who died on 2 November 2011), with the will dated 4 July 1968 (Exhibit P1) attached, to Perpetual Trustee Company Limited.
(2) Order that the administration bond be dispensed with.
(3) Order that the proceedings be referred to the registrar to complete the grant.
(4) Order that the costs of all parties in relation to these proceedings and the proceedings numbered 2013/00317762 be paid out of the estate of the deceased on the indemnity basis.
(5) Order that Janet Elaine Lawson (the 2nd defendant in the current proceedings) be granted leave to discontinue the proceedings, commenced by her, numbered 2013/00317762 and that, to give effect to that grant of leave, those proceedings be dismissed.
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Decision last updated: 29 May 2014
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