Longworth v Allen

[2005] SASC 469

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

LONGWORTH v ALLEN

Judgment of The Honourable Justice Anderson

14 December 2005

SUCCESSION - EXECUTORS AND ADMINISTRATORS - PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS

Plaintiff and defendant are sisters and beneficiaries under the will of their deceased brother – defendant is the executor and trustee of the will – the plaintiff’s son and two children of the defendant are also beneficiaries – long-running dispute between the plaintiff and defendant unrelated to the will – plaintiff made repeated requests for information about the administration of the estate – defendant’s solicitors asserted that a trustee was not obliged to report to beneficiaries during the administration of the estate – defendant followed this advice and failed to provide any information - distributed the estate but not the plaintiff’s share –distribution included the plaintiff’s infant son with the defendant acting as his trustee – defendant required the plaintiff to sign a release as a condition of her share of the estate – plaintiff alleged breaches of trustee’s duties by the defendant – whether proper to request a release from plaintiff – whether defendant required to distribute plaintiff’s share of estate – whether defendant entitled to be indemnified for her costs from the estate in defending the action – Held: defendant breached her duties as trustee in failing to respond to reasonable requests from the plaintiff as to progress reports on the administration of the estate – defendant required to distribute plaintiff’s share of the estate – defendant removed as trustee of the plaintiff’s son’s portion of the estate – defendant not entitled to be indemnified for costs out of the estate – defendant to pay her own costs – defendant to pay the plaintiff’s costs to be taxed – plaintiff's costs to be paid on a solicitor/client basis from 2 November 2005 - plaintiff's claim upheld.

Trustee Act 1936 s36, s84B; Trustee Regulations 1996, referred to.
Plimsoll v Drake (No 2) (Unreported, Supreme Court of Tasmania, Zeeman J, 1 August 1995), discussed.
Skaftouros v Dimos [2002] VSC 198; Re Beddoe; Downes v Cottam [1893] 1 Ch 547; National Trustees Executors and Agency Company of Australasia Ltd v Barnes [1941] 64 CLR 268; Re Jones; Christmas v Jones [1897] 2 Ch 190; Rouse v IOOF Australia Trustees Ltd (No 3) [1999] SASC 208; Morris v McEwin & Anor [2005] SASC 284, considered.

LONGWORTH v ALLEN
[2005] SASC 469

Civil

ANDERSON J

INTRODUCTION

1. The plaintiff and defendant are sisters.  This matter involves a long and bitter dispute between them.  Prior to the death of their brother they had not been on speaking terms for many years.  The dispute involves the administration of the estate of their late brother, Robert Anthony Quinn.

2. By his last will and testament, Mr Quinn appointed the defendant to be the sole executrix and trustee of his estate.  The beneficiaries under the will were the defendant and her two children, Rachel and Simon, together with the plaintiff and her child, Sebastian.  The whole…