Pajic v Lepan

[2006] NSWSC 1123

CITATION:	Pajic v Lepan [2006] NSWSC 1123
HEARING DATE(S):	17/10/06
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	10/17/2006
DECISION:	That probate in the estate of Dorde Pajic granted to the first defendant be revoked. First defendant to pay the plaintiff's costs.
CATCHWORDS:	SUCCESSION [258]- Executor- Removal and discharge- Administration not completed after three years from death- Deceased's property left vacant- High payment of commission demanded by executor- Inexcusable delay and inefficiency- Grant of probate to executor revoked.
CASES CITED:	Mavrideros v Mack (1998) 45 NSWLR 80
PARTIES:	Zoran Pajic (P) Drago Lepan (D1) Branka Seigal (D2)
FILE NUMBER(S):	SC 1451/06
COUNSEL:	M Lawson (P) No appearance for defendants
SOLICITORS:	Thomas Mitchell Solicitors (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 17 October 2006

1451/06 – PAJIC v LEPAN

JUDGMENT

1 HIS HONOUR: This is an application to remove an executor because of his poor performance in administering the estate of the late Dorde Pajic. Mr Pajic died on 10 November 2003 and probate was granted to the first defendant, the executor named in the will, a friend of the deceased, in 2004.

2 The evidence is that the estate was a fairly simple one. The deceased owned a home at Port Kembla and had $5,000 in the bank. By his will he left the property to his son, the plaintiff, and daughter, the second defendant, in equal shares. However, by an informal codicil which was administered to probate, he gave the plaintiff’s aunt what appears to be a life estate in the Port Kembla property. I say “what appears to be” because I do not want to be taken to have decided the interest was a life estate. The codicil was written in Croatian. The translation is, “I want … my sister to be in the house, until such time as she is alive”. I have read the word “until” as meaning “whilst”, but it could be argued that is a right to reside rather than a life estate. The fact that there is no provision for the payment of rates, taxes and any repairs may be significant. I do not want to decide that question without the plaintiff's aunt being given an opportunity to argue.

3 The whole thing may be academic, in any event, because it would seem - and again I use that word advisedly - that the executor entered into an arrangement with the person I have called the aunt for her to vacate the house for $5,000 and that the plaintiff and the second defendant put the executor in funds for this to happen. However, if there was a life estate then it may be that the aunt’s interest might still persist because it would not seem that there was any document in writing, or deed, surrendering the life estate.

4 If there was a mere right of residence that would not matter too much and it may be, as the estate was not fully administered, that at the time the agreement was made all that the aunt was giving up was her right to have the estate properly administered. However, there is some problem because correspondence from the executor’s solicitor suggests that the executor ordered the aunt out of the property, so that if the claims against the aunt are only equitable, that may make for some defence. However, that really does not concern what I have to do and that is look at the executor’s administration of the estate.

5 The deceased has now been dead for three years. The property is vacant. It has not been let. The executor has demanded moneys for commission to which he is not entitled unless the Court makes an order for commission if he has duly passed accounts to show he has properly administered the estate. He has not been cooperative with the persons who would appear to have the major interest as beneficiaries.

6 In Mavrideros v Mack (1998) 45 NSWLR 80 the Court of Appeal held that the Court has a discretion to revoke a grant of probate where the executor has been guilty of inexcusable delay and inefficiency so that the Court can see that the executor is impeding the due administration of the estate. It seems to me that the facts in the instant case come within that principle.

7 The case has proceeded before me ex parte and accordingly I have only read the evidence of one side, but the view one gets from reading the evidence is reinforced by the letters from the executor’s solicitor.

8 Accordingly, the grant should be revoked. The first defendant should be ordered to file accounts and then after due advertisement and compliance with the formalities, the Registrar in Probate may consider it appropriate to grant letters of administration, with the will annexed, to the plaintiff and the second defendant.

9 Accordingly, the Court makes the following orders:

1. That probate number 107225/04 in the estate of Dorde Pajic granted on 8 March 2005 to the first defendant be revoked.

2. That the first defendant by 4 pm on 15 November 2006 bring the said grant into the Probate Registry to be cancelled.

3. That the first defendant file and serve on or before 15 November 2006 an account verified by affidavit setting out full particulars, including assets distributed and undistributed, in relation to the estate of the late Dorde Pajic, including:
(a) all moneys disbursed by the first defendant;
(b) all moneys received, and
(c) all assets and liabilities of the estate.

4. Refer to the Registrar in Probate the question of grant of letters of administration cta in the estate of Dorde Pajic.

5. Liberty to the plaintiff and second defendant to apply to the Registrar in Probate for directions as to the taking and vouching of the accounts and consequential orders.

6. That the first defendant pay the plaintiff’s costs to date.

7. Further consideration reserved.

8. These orders may be entered forthwith.

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