Minicozzi v Starr

[2019] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction)

MINICOZZI v STARR & ORS

[2019] SASC 55

Judgment of Judge Dart a Master of the Supreme Court

9 April 2019

SUCCESSION - PERSONAL REPRESENTATIVES - EXECUTOR DE SON TORT AND INTERMEDDLER

Application to admit will to probate - opposition from some beneficiaries - plaintiff the proposed executor - plaintiff wishes to renounce - plaintiff has intermeddled in the estate - discretion to permit renunciation, even where there has been intermeddling.

Held:

1. It is appropriate to permit the plaintiff to renounce.

2. Plaintiff is disjoined.

3. Mr Andrew Moffa is joined as plaintiff.

Jackson and Wallington v Whitehead (1821) 3 Phill. Ecc. 577; 161 E.R. 1420; In the Will of Lyndon, deceased [1960] VR 112, applied.

MINICOZZI v STARR & ORS
[2019] SASC 55

JUDGE DART:

1. The plaintiff is a legal practitioner.  In these proceedings a grant of probate in solemn form is sought.  The will in question was made on 25 November 2016.  The will appoints the plaintiff and Mr Andrew Moffa to be executors and trustees of the estate.  At the time the proceedings were commenced, Mr Andrew Moffa did not join in the application for a grant of probate.

2. The matter was referred into Court because one of the beneficiaries lodged a caveat at the Probate Registry.  As it appeared that the proceedings could be protracted, an order was made on 13 August 2018 appointing Mr Macolino the Administrator pendente lite.  The order permits Mr Macolino to get in and protect the assets in the estate pending the resolution of this dispute.  These reasons deal with the request of the plaintiff to renounce as the executor.

   Background

3. The plaintiff undertook steps to protect the assets prior to the appointment of Mr Macolino.  In his affidavit he set out those dealings at paragraphs 45 to 47: [1]

   [1]    Third affidavit of Nicola Minizocci, sworn 22 November 2018, FDN15.

   45.Pending the grant of probate of the 2016 will, the acts taken by me in administration of the estate were limited to:

   a.Liaising with the managing agent of the real property in the estate,

   b.Securing the Highbury property and arranging for it to be cleared of furniture, personal effects and waste materials,

   c.Arranging for the sale of all saleable items of furniture and personal effect that were not otherwise sought by any of Mr Moffa’s children,

   d.Ensuring that insurance cover was maintained in respect of the estate assets,

   e.Ensuring that rates, taxes and other liabilities of the estate were paid through rental income earned or by my firm as a disbursement on the file,

   f.Providing instructions to Mr Moffa’s bank in relation to the rolling over of term deposits held in his name,

   g.Receiving net rental amounts paid by the managing agent of Mr Moffa’s investment properties, into my firm trust account.

   46.No assets of the estate (other than the items of furniture and personal effects) were liquidated or otherwise realised by me.

   47.No distribution of estate assets (other than items of furniture and personal effects) was directed by me.

4. A defence has been filed by the first and fourth defendants.  They have also commenced a cross-action.  They seek orders to pass over the 2016 will and obtain a grant of probate for a will made in 2013.  A number of issues are pleaded in respect of the 2016 will.  The plaintiff and his firm were involved in the preparation of that will.  In the circumstances, and in light of the issues raised, the plaintiff has determined that he should renounce as the executor of the 2016 will. 

5. Two issues arise.  The first relates to the future of the proceeding.  The plaintiff wishes to withdraw from the proceedings.  If the application to admit the 2016 will to probate is to be pressed, a new plaintiff is required.

6. The second is in respect of renunciation.   The plaintiff has intermeddled in the estate, as the matters deposed to in his affidavit make clear.  The usual rule is that an executor who has intermeddled may not ordinarily renounce the executorship of the will. 

7. The reason for that was explained in Jackson and Wallington v Whitehead when Sir John Nicholl said: [2]

   After looking through a great number of cases, I find none where the Court has refused to dismiss, except on the ground of the party having intermeddled with the effects.  The reason for this is obvious—that where a party has intermeddled, he has taken upon himself the burthen, and acquired the responsibility of an executor—that was the principle of the decision in Haywood v. Bridges (Prerog. 1767 ).

   [2] (1821) 3 Phill. Ecc. 577; 161 E.R. 1420.

8. The practice of the Court has been to require an executor who wishes to formally renunciate to declare that he has not intermeddled in the estate of the deceased and will not thereafter intermeddle with an intent to defraud creditors.[3]

   [3]    In the Will of Lyndon, deceased [1960] VR 112 at 113.

9. Notwithstanding the usual rule, the Court has an inherent power to permit a renunciation notwithstanding intermeddling.  The position is as stated by Pape J in In the Will of Lyndon, deceased:[4]

   I think, therefore that the court has power to accept a renunciation by an executor who has intermeddled in the estate, and the only question for me to decide is whether in this case I should do so.  In deciding this question, I think I should consider the interests not only of the beneficiaries, but also of the creditors (if any) of the estate. 

   [4] [1960] VR 112 at 115.

10. The Court needs to consider the interests of the beneficiaries and also the creditors of the estate.  The beneficiaries who may be affected by the outcome of the proceedings are the various defendants in this matter.  There is a difference between the defendants as to their attitude to the application to admit the 2016 will to probate.  Notwithstanding that, they all consent to the plaintiff renouncing.  Even without that consent, it would be appropriate to permit the plaintiff to renounce.  The steps taken in dealing with the estate assets were all protective in nature.  They were necessary and appropriate steps for the benefit of all of the defendants.  There has been no adverse effect caused by the plaintiff’s actions. 

11. The limited evidence before the Court in respect of creditors suggests that they are being paid.  Mr Macolino will remain in place until the matter has resolved.  The change of plaintiff will not affect the position of the creditors. 

12. It is appropriate that the plaintiff be given permission to renounce and that Mr Andrew Moffa be substituted as the proposed executor and plaintiff.