Lewis v Lewis
[2017] WASC 39
•16 FEBRUARY 2017
LEWIS -v- LEWIS [2017] WASC 39
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 39 | |
| 16/02/2017 | |||
| Case No: | CIV:2860/2016 | 2 FEBRUARY 2017 | |
| Coram: | MASTER SANDERSON | 2/02/17 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID ARI LEWIS ROSHANA LEE LEWIS as Representative of the Estate of the late JANICE MARIE LEWIS ROSHANA LEE LEWIS as Trustee for THE CHERRY TRUST |
Catchwords: | Trustee Right of beneficiary to inspect trust documents Turns on own facts |
Legislation: | Nil |
Case References: | Rouse v IOOF Australia Trustees Ltd [1999] SASC 181 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ROSHANA LEE LEWIS as Representative of the Estate of the late JANICE MARIE LEWIS
First Defendant
ROSHANA LEE LEWIS as Trustee for THE CHERRY TRUST
Second Defendant
Catchwords:
Trustee - Right of beneficiary to inspect trust documents - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr J A Robertson
First Defendant : Ms H Tiplady
Second Defendant : No appearance
Solicitors:
Plaintiff : Williams & Hughes
First Defendant : Dwyer Durack
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Rouse v IOOF Australia Trustees Ltd [1999] SASC 181
- MASTER SANDERSON:
(This judgment was delivered extemporaneously on 2 February 2017 and has been edited from the transcript.)
1 I am not satisfied that the application in this matter should succeed. Essentially, what is being sought is a raft of documents - and I will not run through them; they are set out in the amended originating process - to do with both the affairs of the deceased before she passed away, and the administration of the estate after the death of the deceased. I think the first question to be determined here is just what interest Mr Lewis has in the estate.
2 The answer is, I think, provided by the will itself. It appoints the defendant in her personal capacity - and I will come back to the reference to her as trustee of The Cherry Trust in a moment, but it appoints the defendant in her personal capacity as executor and trustee of the estate. It then leaves to the plaintiff an amount of $500,000. The rest of the estate is to pass to the defendant in her capacity as trustee of The Cherry Trust.
3 The will itself does not set up a trust; what it does is it gives a specific legacy to the plaintiff and it gives the rest of the estate to the defendant in her capacity as trustee of The Cherry Trust. Leaving to one side the fact that the defendant in her personal capacity has not yet taken steps to be appointed executor, and assuming that she has duties as either the actual executor or an executor de son tort, it is a question of how those duties are to be performed and what fiduciary duties arise as a consequence of the position as executor.
4 The obligation of an executor is to apply for probate in a timely manner and to administer the estate in accordance with the will. As a general rule, a beneficiary under the estate does not have a vested interest in the estate. The beneficiary has an expectation that the terms of the will will be effected. If the executor, for one reason or other, either does not abide by the terms of the will or does not apply in a timely fashion for administration or for probate of the will or takes some other action which may be inconsistent with the duties of an executor, then there is a right to replace the executor.
5 Either the plaintiff could apply or someone who he regards as suitable could apply. But it is, I think, open to question whether or not, on the facts of this case, there is an interest in the estate which can be characterised in the nature of a beneficiary of a trust. In my view, the position is relatively clear and it is to the effect that the plaintiff is not in the position of a beneficiary of a trust created by the will, that while he may have rights under the will, and while there may be fiduciary duties owing by the executor to the estate and perhaps, although I express no concluded view on this - perhaps to the beneficiary, the plaintiff, I am not satisfied that there is an interest that is consistent with the type of beneficial interest which was dealt with in Rouse v IOOF Australia Trustees Ltd [1999] SASC 181, and other cases upon this - in this area.
6 But if that be a wrong conclusion, then it would seem to me that the beneficiary has the right to inspect certain documents in the estate, but there is nothing in the material that I can see that would justify, in this case, that right overriding any discretion which resides in the hands of the trustee. There is nothing in the material which suggests that the deceased behaved in an improper fashion or that the defendant, in her personal capacity, exercised some undue influence or, in some other way, persuaded inappropriately the deceased to produce a will which did not actually reflect her testamentary intentions.
7 I should also make the point that this process seems to me to be inappropriate for what is really an attack on the integrity of the will. I do not suggest there is anything improper in taking this course, but it seems to me that if the plaintiff has real doubts as to the testamentary capacity of the deceased or doubts about whether or not there was some form of undue influence which led to the production of a will which did not actually reflect her testamentary capacity, then there is a process by which that can be undertaken - that attack can be undertaken.
8 That is to say, proceedings can be issued and it is then open to the court to determine, one way or another, whether or not the will should stand. But I am not satisfied that this course of action, when the position of the plaintiff is at best uncertain, is the proper way to gain access to documents which form part of the estate.
9 The plaintiff is a general beneficiary of The Cherry Trust, but nonetheless, it does not seem to me, in circumstances where the trustee of that trust is the defendant, and where the discretion that she holds is significant, that there would be any basis for ordering production of these documents.
10 I think that the evidence establishes that the defendant has acted at all times appropriately and, accordingly, I would dismiss the application. The costs of the application including the reserved costs to be paid out of the estate.
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