Lindsay v Arnison

Supreme Court

New South Wales

Medium Neutral Citation:

Lindsay v Arnison [2017] NSWSC 41

Hearing dates:

27 October 2016 and 15 November 2016

Decision date:

10 February 2017

Jurisdiction:

Equity

Before:

Robb J

Decision:

Defendants required to provide a proper accounting of their dealings with the deceased’s bank and building society accounts.

 Parties to consider these reasons with appropriate orders to be determined at a directions hearing.

Catchwords:

EQUITY – General principles – Fiduciary relationships – Whether defendants were fiduciaries of the deceased – Where first defendant was the daughter of the deceased – Where second defendant was the son in law of the deceased – Where both defendants were duly appointed attorneys and agents of the deceased – Where deceased was elderly and in a nursing home – Where first defendant had access to deceased’s bank and building society accounts

 

EQUITY – Equitable remedies – Accounts and inquiries – Orders sought by beneficiary under deceased estate – Orders sought that defendants account for dealings with accounts of the deceased

  SUCCESSION – Administration of estate – Other matters – Where defendants were executors of deceased’s will but had not sought a grant of probate – Whether defendants guilty of wilful default or as executors de son tort

Legislation Cited:

Powers of Attorney Act 2003 (NSW)

Cases Cited:

Meehan v Glazier Holdings Pty Ltd (2002) 54 NSWLR 146; [2002] NSWCA 22

Category:

Principal judgment

Parties:

Christine Lindsay (plaintiff)
Deborah Gail Arnison (first defendant)
Murray Arnison (second defendant)

Representation:

Counsel: M Tibbey (plaintiff)
M Pringle (defendants)

  Solicitors: Brazel Moore Lawyers (plaintiff)
Michael Daley (defendants)

File Number(s):

2015/356788

Publication restriction:

None

Judgment

Introduction

1. The plaintiff, Christine Lindsay, commenced these proceedings against the defendants, Deborah Gail Arnison and her husband Murray Arnison, by statement of claim filed on 4 December 2015.

2. Ms Lindsay is the sister of Ms Arnison, and the sister-in-law of Mr Arnison.

3. Ms Lindsay and Ms Arnison were two of the children of the late Ruth Eileen Seddon, who died on 8 September 2013. Ms Seddon also had a son, called Peter Seddon. Mr Seddon is not a party to the proceedings.

Ms Seddon’s will

4. Ms Seddon made a will dated 1 September 2011. By that will she appointed Mr and Ms Arnison as her joint executors.

5. Ms Seddon stated in cl 5, by reference to her previous will wherein she had made provision for a bequest to her grandchildren as they turned 18 years of age, that those funds had already been distributed to the grandchildren or to their parents as trustees.

6. She also said in cl 6(i) that when she moved from her unit at 935 Friarbird Close (sic), Wyoming, to the nursing home, all her assets, other than the unit itself and her jewellery, had been distributed amongst her children and grandchildren or sold. A debt owed by Mr Arnison had been repaid.

7. In relation to her unit, she said in cl 6(ii) that it was her intention to leave the unit unsold until such time as she…