Re Boardman; Edgar v Boardman
[2021] VSC 314
•1 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2020 03412
| IN THE MATTER of the will and estate of PETER JOHN BOARDMAN, deceased | |
| and | |
| IN THE MATTER of the will and estate of ANTHONY ELLIS BOARDMAN, deceased | |
| and | |
| IN THE MATTER of section 34 of the Administration and Probate Act 1958 and sections 48 and 51 of the Trustee Act 1958 | |
| APPLICATION BY: | |
| MALCOLM GRAEME EDGAR (in his capacity as executor of the estates of PETER JOHN BOARDMAN, deceased and ANTHONY ELLIS BOARDMAN, deceased) | Plaintiff |
| v | |
| CASEY JAMES BOARDMAN | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF RULING: | 1 June 2021 |
CASE MAY BE CITED AS: | Re Boardman; Edgar v Boardman |
MEDIUM NEUTRAL CITATION: | [2021] VSC 314 |
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WILLS AND ESTATES — Where executor of estate who is also executor by representation in second estate seeks to be discharged as executor of both estates — Chain of representation — Administration and Probate Act 1958 (Vic) ss 17, 34 — In the Will of Keys [1909] VLR 325 — The King v Registrar of Titles; Ex parte Irish [1915] VLR 622.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Mah | Australian Unity Trustees Legal Services |
| For the Defendant | McNab McNab & Starke |
HER HONOUR:
Introduction
Peter John Boardman (‘Peter’) died on 12 June 2018. Probate of Peter’s will dated 23 December 2017 was granted to his brother Anthony Ellis Boardman (‘Anthony’) on 20 September 2018.
Anthony died on 1 August 2019, before fully administering Peter’s estate. Probate of Anthony’s will dated 10 May 2019 was granted to the plaintiff on 17 March 2020.
Upon the plaintiff obtaining the grant of probate of Anthony’s will, the plaintiff also became executor of Peter’s estate by operation of s 17 of the Administration and Probate Act 1958 (Vic) (‘the Act’).
Plaintiff’s application
Pursuant to s 34(1) of the Act, the plaintiff seeks to be discharged as executor of Anthony’s and Peter’s estates due to his difficulties in finalising both estates.
Casey Boardman is Anthony’s son and Peter’s nephew, and the residuary beneficiary of both estates. As such, his interests are affected by the plaintiff’s application. Pursuant to orders made on 22 September 2020, Casey Boardman was joined as a defendant to the proceeding.
The plaintiff consents to the defendant being appointed as the administrator of Anthony’s estate and to the defendant then applying for administration de bonis non in order to complete the administration of Peter’s estate.
For the reasons set out, orders will be made pursuant to s 34(1)(b) of the Act that the plaintiff be discharged as executor of Anthony’s estate and an order pursuant to s 34 that the defendant be appointed administrator of Anthony’s estate.
Jurisdictional issues
The application concerns the Court’s jurisdiction under s 34 of the Act. The issues that arise are:
(a) whether the Court has jurisdiction to make an order pursuant to s 34(1) of the Act that the plaintiff be discharged as executor of Peter’s estate. This will depend on the construction of the phrase ‘an executor … to whom probate … has been granted’ in the introductory paragraph of s 34(1).
(b) whether an order pursuant to s 34(1) that the plaintiff be discharged as executor of Anthony’s estate breaks the chain of representation under s 17 of the Act, with the consequence that it is not necessary for the Court to make an order pursuant to s 34 of the Act that the plaintiff be discharged as executor of Peter’s estate.
Applicable legislation
Section 34 of the Act provides:
34 Discharge or removal of executor or administrator
(1)Notwithstanding anything contained in any Act where an executor or administrator to whom probate or administration has been granted whether before or after the commencement of this Act or where an administrator who has been appointed under this section or any corresponding previous enactment—
(a) remains out of Victoria for more than two years;
(b)desires to be discharged from his office of executor or administrator; or
(c) after such grant or appointment refuses or is unfit to act in such office or is incapable of acting therein—
the Court upon application in accordance with the Rules of Court may order the discharge or removal of such an executor or administrator and also if the Court thinks fit the appointment of some proper person or trustee company as administrator in place of the executor or administrator so discharged or removed upon such terms and conditions as the Court thinks fit; and may make all necessary orders for vesting the estate in the new administrator and as to accounts and such order as to costs as the Court thinks fit.
…
(4)Upon such appointment the property and rights vested in and the liabilities properly incurred in the due administration of the estate by the executor or administrator so discharged or removed shall become and be vested in and transferred to the administrator appointed by such order who shall as such have the same privileges rights powers duties discretions and liabilities as if probate or administration had been granted to him originally.
Section 17 of the Act provides:
17 Executor of executor represents original testator
(1) An executor of a sole or last surviving proving executor of a testator is the executor of that testator.
This provision shall not apply to an executor who does not prove the will of his testator, and, in the case of an executor who on his death leaves surviving him some other executor of his testator who afterwards proves the will of that testator, it shall cease to apply on such probate being granted.
(2) So long as the chain of such representation is unbroken, the last executor in the chain is the executor of every preceding testator.
(3) The chain of such representation shall be broken by—
(a) an intestacy; or
(b) the failure of a testator to appoint an executor; or
(c) the failure to obtain probate of a will;
but shall not be broken by a temporary grant of administration if probate is subsequently granted.
(4) Every person in the chain of representation to a testator—
(a) shall have the same rights in respect of the estate of that testator as the original executor would have had if living; and
(b) shall be to the extent to which the estate of that testator has come to his hands, answerable as if he were an original executor.
Applicable principles
The contemporary approach to statutory interpretation is that consideration must be given to the context and purpose of the statute.
In Project Blue Sky Inc v Australian Broadcasting Authority,[1] the plurality of the High Court said:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.[2]
[1](1998) 194 CLR 355 (‘Project Blue Sky Inc v Australian Broadcasting Authority’).
[2]Ibid 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[3] the plurality of the High Court said:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[4]
[3](2009) 239 CLR 27.
[4]Ibid 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ, French CJ agreeing at 30 [1]) (citations omitted).
More recently, in SZTAL v Minister for Immigration and Border Protection,[5] the plurality of the High Court said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[6]
[5](2017) 262 CLR 362.
[6]Ibid 368 [14] (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).
There is a presumption that each word in a provision has work to do, and that should be given effect as far as possible. In Project Blue Sky Inc v Australian Broadcasting Authority,[7] the plurality of the High Court said:
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.[8]
[7]Project Blue Sky Inc v Australian Broadcasting Authority (n 1).
[8]Ibid 382 [71] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).
Regard must also be had to any potential consequences of giving a particular meaning to a provision. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation[9] Mason and Wilson JJ said:
when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.[10]
[9](1981) 147 CLR 297.
[10]Ibid 321 (Mason and Wilson JJ).
Consideration
On a narrow literal construction of s 34(1) of the Act, the section would apply only to a directly appointed executor, being the executor ‘to whom probate has been granted’. It would not apply to an executor by representation, as that person was not the executor to whom probate of the predeceasing testator’s will was granted. Accordingly, the Court would not have jurisdiction pursuant to s 34(1) to discharge the plaintiff as executor of Peter’s estate.
On a wider construction of s 34(1) of the Act, the section could also apply to an executor by representation, as that person was the executor to whom probate of the original executor’s will was granted. Accordingly, the Court may have jurisdiction pursuant to s 34(1) to discharge the plaintiff as executor of Peter’s estate.
As the authorities referred to above reflect, in undertaking the task of statutory interpretation, the Court must give consideration to the context and purpose of s 34 and the statute as a whole.
The predecessor of s 34 of the Act was s 5 of the Administration and Probate Act 1907 (Vic) (‘the 1907 Act’). Section 5 was enacted to address the significant differences between the legal position of trustees and executors in relation to discharge and removal.[11] Previously, the Court had no inherent or statutory power to remove or discharge an executor for breach or neglect of duty and an executor was not entitled to resign or retire.[12] In contrast, the Court had inherent power to remove a trustee for breach or neglect of duty and under a trust deed, statute or court order, a trustee could be permitted to retire.[13] The difference was ‘especially anomalous’ given that the offices of executor and trustee were frequently concurrent in one person, or an executor frequently assumed the office of trustee at a point difficult to identify.[14] The section has remained in substantially the same form since it was enacted. In the Court’s view, it would not be consistent with the purpose of the section to read in a limit to the Court’s powers to deal with executors by representation.
[11]Dimos v Skaftouros (2004) 9 VR 584, 603 [83]–[85] (Dodds‑Streeton AJA, Winneke P agreeing at 586 [1], Batt JA agreeing at 593 [15]).
[12]Ibid [83].
[13]Ibid [84].
[14]Ibid [85].
Section 34 is also to be construed in the context of s 17 of the Act. Section 17 derives from an early English statute introduced to avoid the need for an application to the Court for the appointment of an administrator de bonis non in circumstances where a sole executor predeceased the testator and there was a need to fill the consequent gap in executorship.[15] It reflects the position at common law that the estate of a testator and the office of an executor are transmissible.[16] On the one hand, this purpose supports a narrower construction of s 34(1) because on a wider construction if the executor by representation was removed or discharged then an application for administration de bonis non would need to be made. On the other hand, s 17 of the Act, in particular sub-ss (1) and (4), gives the executor by representation the same rights and liabilities as the original executor would have, if living. The consequence of this is to place an executor by representation in the same position as the original executor, which supports a wider construction of s 34(1).
[15]See GE Dal Pont, Law of Succession (LexisNexis, 3rd ed, 2020) 343–4 [10.83].
[16]Maddock v Registrar of Titles (Vic) (1915) 19 CLR 681, 688–9 (Griffiths CJ).
In the Will of Keys,[17] Madden CJ took the view that an executor by representation could not be discharged under s 5 of the 1907 Act while remaining executor of his own testator. His Honour held that if the legislature’s intention was to change the long-established rule that an executor could not accept one part of the duties of an executor and refuse the rest then definite and clear language was needed.[18] These views were expressed not on an application for discharge, but in relation to an application for administration with the will annexed in circumstances where executors by representation had purported by deed to renounce all their rights to the probate and execution of the first will.
[17][1909] VLR 325 (‘In the Will of Keys’).
[18]Ibid 326 (Madden CJ).
In TheKing v Registrar of Titles; Ex parte Irish,[19] Cussen J appeared to interpret Madden CJ’s opinion as being that s 5 of the 1907 Act did not apply to executors by representation in any circumstance.[20] However, in the Court’s view, Madden CJ was not going so far. Notwithstanding, if a wider construction was favoured, it may be appropriate to impose a limit on the Court’s power under s 34(1) to order the discharge of an executor by representation if discharge is only sought in respect of the first estate. This limitation would ensure that the common law principle that an executor cannot refuse part of his or her duties operates consistently with the statutory powers provided by s 34 in the absence of clear legislative intent to the contrary. It would also be consistent with the purposes of ss 17 and 34 discussed above.[21]
[19][1915] VLR 622 (‘The King v Registrar of Titles; Ex parte Irish’).
[20]Ibid 626 (Cussen J).
[21]See above [20]–[21].
An example of definite and clear language to the contrary can be found in the Queensland equivalent of s 17 of the Act. Under the Queensland equivalent, an executor may renounce their executorship by representation before intermeddling without also renouncing the executorship of his or her own testator, thus breaking the chain of representation.[22]
[22]Succession Act 1981 (Qld) s 47(3)(d).
The facts of the present application can be distinguished from those in In the Will of Keys[23] as the plaintiff is not seeking to renounce executorship of Peter’s estate while remaining executor of Anthony’s estate. Rather, the plaintiff is seeking to be discharged as executor of both estates. Accordingly, an order discharging the plaintiff as executor of Peter’s estate would not be inconsistent with the view expressed by Madden CJ.
[23]In the Will of Keys (n 17).
It is also necessary to consider what the meaning of the words ‘to whom probate has been granted’ would be under the alternative constructions.
On the narrow construction, the phrase clearly operates to exclude the section applying to executors by representation.
On the wider construction, the phrase may operate to include executors by representation and make clear that s 34(1) does not apply to named executors who have not yet been granted probate of the will under which they derive their title. In respect of this latter point, the Court already has inherent jurisdiction to pass over an executor before probate is granted, and so it is unlikely to have been the intention of the legislature to codify this power in statute.
This construction is consistent with the view expressed by Cussen J in The King v Registrar of Titles; Ex parte Irish.[24] In that case, his Honour concluded that he had jurisdiction under s 5 of the 1907 Act to make an order that removes one of two executors by representation on the basis that the executor was of unsound mind.[25] Cussen J held that the words of the section ‘to whom probate or administration has been granted’ seemed to him to ‘merely indicate that the application may or must be made after a grant’.[26] His Honour further held that ‘it is obviously desirable’ that the section receive ‘a liberal construction’.[27]
[24]TheKing v Registrar of Titles; Ex parte Irish (n 19).
[25]Ibid 626-7 (Cussen J).
[26]Ibid (original emphasis).
[27]Ibid 627.
Further, s 34(4) vests all property and rights and liabilities in any newly appointed administrator ‘as if probate or administration had been granted to him originally’. This wording is consistent with the section operating only after a grant of probate or administration.
Next, the Court must consider the potential consequences of each construction.
A narrow construction of s 34(1) may lead to an undesirable outcome if an executor by representation defaulted in the performance of their executor’s duties with respect to only the predeceasing testator’s estate. The beneficiaries of the predeceasing testator’s estate would have to apply to remove the executor as the executor of the original executor’s estate, even though the beneficiaries may have no interest in the original executor’s estate.
On the other hand, a wider construction may also lead to an undesirable outcome. As stated, if the executor by representation was removed or discharged then an administrator de bonis non would need to be appointed, which is contrary to the purpose of s 17.[28]
[28]See above [21].
Balancing the purpose and context of the statute against any potential adverse consequences, the wider construction subject to the limitation expressed by Madden CJ is to be preferred over the narrow construction. Accordingly, the Court has jurisdiction under s 34(1) to remove or discharge an executor by representation, except where discharge is only sought only in respect of the predeceasing testator’s estate.
Accordingly, the Court has jurisdiction to make an order pursuant to s 34(1) that the plaintiff be discharged as executor of Peter’s estate as, in this case, the plaintiff is also seeking to be discharged as executor of Anthony’s estate. However, it does not necessarily follow that the Court is required to make such an order in the circumstances of this application.
As set out above, s 17(3) of the Act lists three events that break the chain of representation.[29] An order under s 34(1) discharging or removing an executor is not included on that list.
[29]See above [10].
On one view, the list is exhaustive in that those three events are the only events that will break the chain. This is supported by the purpose of s 17, which is to avoid a gap in executorship and the requirement for an application for administration de bonis non.
The other view is that the list is not exhaustive, and that the three events are only examples of events that will break the chain. This view is preferable and thus the discharge or removal of an appointed executor pursuant to s 34(1) of the Act may but need not break any chain of representation derived from the will of the original executor. While an application for administration de bonis non might be a potential consequence, it would be incongruous if an appointed executor could be discharged or removed from that office but maintain the office of executor by representation given that the executorship by representation was derived from the grant of probate of the will which directly appointed the executor.
Conclusions
The Court has jurisdiction to make an order pursuant to s 34(1) of the Act that the plaintiff be discharged as executor of Peter’s estate. However, upon the Court making an order pursuant to s 34(1) of the Act that the plaintiff be discharged as executor of Anthony’s estate, the chain of representation under s 17 of the Act will be broken, with the consequence that the plaintiff will cease to be the executor of Peter’s estate. Accordingly, it is unnecessary to make an order pursuant to s 34(1) that the plaintiff be discharged as executor of Peter’s estate.
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