Suttil v Suttil
[1990] TASSC 120
•23 July 1990
Serial No B43/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Suttil v Suttil [1990] TASSC 120; B43/1990
PARTIES: SUTTIL, Maria Gaylor
SUTTIL, John Paul
v
SUTTIL, Yolanda Angela
FILE NO/S: 332/1990
DELIVERED ON: 23 July 1990
JUDGMENT OF: Underwood J
Judgment Number: B43/1990
Number of paragraphs: 18
Serial No B43/1990
List "B"
File No 332/1990
MARIA GAYLOR and JOHN PAUL SUTTIL v YOLANDA ANGELA SUTTIL
REASONS FOR JUDGMENT UNDERWOOD J
23 July 1990
This is an application to appoint administrators pending suit of the estate of the late Antonio Suttil (the deceased). The power to grant administration to an administrator pendente lite is to be found in the Administration and Probate Act 1935, s19(1) which provides:
"19–(1) While any legal proceeding touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any representation, is pending, the Court may grant administration of the real and personal estate of the deceased to an administrator, who shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the real and personal estate, but shall be subject to the immediate control of the Court and shall act under its direction."
The parties to the pending litigation are agreed that this is an appropriate case for making such a grant of administration but differ as to who should be appointed the administrator. The applicants (plaintiffs) contend that they should be appointed and the respondent (defendant) contends that the administrator should be some person such as a trustee company, who has no interest in either the estate or the pending proceedings.
The matter arises in this way. The deceased died on 31 January 1989. He was survived by his wife and four children of a prior marriage, Maria Gaylor, and John, Robert and Daniel Suttil. He executed three testamentary instruments. The first was a will dated 17 September 1987, the second was a codicil to that will dated 27 January 1989 and the third was another will dated the same day as the codicil to the earlier will. The second will provided that all prior testamentary instruments be revoked. There is not a great deal of difference between the terms of the three testamentary instruments. The codicil excluded from the residuary estate the following property:
(a) a model boat collection
(b) a stamp collection
(c) gold
(d) monies in any bank account
and provided that it should be specifically bequeathed to:
(a) all the children
(b) John Suttil
(c) Maria Gaylor, Robert and Daniel Suttil
(d) all the children.
In all other respects the codicil confirmed the provisions of the 1987 will.
By the 1989 will the deceased incorporated the specific bequests made by the codicil except that:
(i)the gold was particularised as gold whether by way of ingot or jewellery; and
(ii)any monies in any bank accounts was bequeathed to the trustees upon trust as to one half for the widow and as to one half for all his children in equal shares.
Apart from the foregoing, the provisions of the 1987 will together with the codicil and the 1989 will are indistinguishable. A summary of these common provisions are as follows:
1That Maria Gaylor and John Suttil (the applicants) be appointed executors and trustees.
2Unit 7, 19A Paringa Road and contents to Robert Suttil.
3Unit 1, 19A Paringa Road and contents to John Suttil.
4Unit 10, 19A Paringa Road and contents to Maria Gaylor.
5Unit 3, 19A Paringa Road and contents to Daniel Suttil.
612 Hull Street and contents (excepting a motor vehicle and certain other articles) to the trustees to permit the widow to reside therein and to receive the rents and profits therefrom subject to payment of certain outgoings and to keeping the property in good repair until her death or remarriage. Thereafter to all the children as tenants in common and equal shares. The evidence established that at the date of death and at the present time the widow resided in and continues to reside in one of the buildings at 12 Hull Street.
7The deceased's interest in 6 O'Brien Street (owned by him as a tenant in common in equal shares with his wife) and its contents to the trustees upon trust for the benefit of the widow, subject to certain conditions, for life or until remarriage. Thereafter, to all the children in equal shares.
8Finally, both wills provided that the residue of the estate go to the widow.
By a writ dated 16 March 1990 the applicants commenced the pending proceedings. The statement of claim seeks an order that the court decree probate of the 1989 will, or in the alternative of the 1987 will and codicil, in solemn form. By her defence, the respondent alleges that on or about 27 January 1989 the deceased lacked testamentary capacity and counter–claims that the applicants are not fit and proper persons to be executors. By way of relief she seeks orders that the 1987 will (without the codicil) be admitted to probate and that the Court grant letters of administration to her with the 1987 will annexed. The particulars of unfitness alleged against the applicants are:
"(a)The Plaintiffs took no steps from the date of death to the 21st day of December 1989, to attempt to prove any Will or paper writing as the last Will and Testament of the deceased.
(b)The Plaintiffs intermeddled in the estate of the deceased by collecting rents owing to the estate while inordinate delays in application for proof of any Will existed.
(c)That the Plaintiffs have failed to properly administer the deceased's estate in that they have not let the properties compromised in the estate at all or at fair market rental."
In view of the similarity between the provisions of the three testamentary instruments, in essence, the dispute between the parties is of narrow compass namely: Whether the deceased made valid specific bequests of the model boats, gold, the stamp collection and monies in the bank or whether these items form part of the residuary estate and therefore pass to the widow? (I was told by counsel that the monies in the bank were jointly owned by the deceased and the widow and therefore, by operation of law, belong to her in any event).
One would imagine that in the ordinary course of things the parties would be able to settle these relatively minor matters thereby saving themselves great trouble and expense. However, this seems impossible for their exists such animosity between the deceased's four children and their step–mother that they are totally unable to communicate even through their advisers. This is much to be regretted and in result, the Court is required to resolve this litigation and meanwhile appoint an administrator pendente lite to manage and safeguard the estate pending the issue of probate. Pending determination of the proceedings the dispute between the parties which arises out of the lack of communication, is who should have possession of the property specifically bequeathed by the codicil to the 1987 will and the 1989 will and the management of 6 O'Brien Street. This property has laid vacant for some fifteen months. The widow has the key. A considerable sum of money needs to be spent on the property before it can be let to tenants. Apart from a claim that Daniel Suttil pays less than a fair market rental for one of the buildings occupied by him at 12 Hull Street, the applicants have managed the estate property satisfactorily.
The Court has a discretion with respect to the appointment of an administrator pendente lite. On behalf of the applicants it was submitted that whichever will is admitted to probate in solemn form they will be the executors and trustees of the deceased's estate and therefore should be appointed the administrators pending suit. On behalf of the respondent it was submitted that whatever the outcome of the litigation with respect to the testamentary script, by reason of the matters particularised in the counter–claim, the executors and trustees should be passed over and the respondent appointed administratrix with the will annexed. Thus, it was submitted on behalf of the respondent that until this issue is resolved, an independent person should be appointed the administrator.
With respect to the appointment of an administrator pending suit there are authorities to the effect that the Court will not make such an appointment simply to remove property from the hands of a party to the litigation. It must be shown that the property is at risk of being lost, damaged or wasted or that the party who has possession of the property has or is likely to act irresponsibly or fraudulently or the like. In Northey v Cock (1822) 1 Add 326 (162 ER 114) Sir John Nicholl said at p116:
"I have looked into the cases determined by my predecessor, and find that this Court hath been constantly in the habit of refusing to grant administrations, pending suit, merely to take property out of the hands of a litigant party in the actual possession of it. It hath always required it to be shewn that the property was in jeopardy – that the party sought to be dispossessed was irresponsible, and refused, or neglected, to furnish adequate and reasonable security. On the other hand, it hath constantly declined putting a litigant party in possession of the property by granting administration pending suit to him, always granting it, where requisite, to a nominee presumed to be indifferent between the contending parties."
See also Young v Brown (1827) 1 Hagg Ecc 53 (162 ER 504). However, in the present case the parties are agreed that an administrator pending suit should be appointed. The basis for their agreement is the total failure of the opposing parties to communicate sufficiently to enable the estate to be managed pending suit.
Although in many cases it is desirable to appoint an administrator who is independent of the parties there is no absolute rule against appointing a party to the litigation especially when that party is named as executor in all testamentary documents. See In re Griffin, Griffin v Ackroyd [1925] Probate Division 38; Wright v Rogers & Goodison [1870] 2 LR P & D 179; Tomkinson v Hersey (1983) 34 SASR 181.
It was submitted on behalf of the respondent that the applicants are unfit to act as executors, in part because they delayed in taking any steps to obtain probate for some eleven months after death. The applicants initially consulted a solicitor about this matter within a month of the death of the deceased. It appears that the solicitor did little to bring the matter to a conclusion. The applicants then twice saw the Public Trustee and sought his advice with respect to administration pending suit. Thereafter, the applicants consulted another solicitor but again, it appears that little progress was achieved in obtaining probate. Finally, about the middle of last year the applicants consulted their present legal adviser who commenced the appropriate proceedings to have the 1989 will admitted to probate. On the material put before me I cannot be satisfied that the passage of some eleven months prior to filing for probate indicates that the applicants acted irresponsibly in the discharge of their duties.
It was also submitted by the respondent that part of the property at 12 Hull Street is let to Daniel Suttil for $60 per week, being $20 a week less than the true market rental. This fact is conceded by the applicants but in evidence, it was explained that Daniel Suttil expended considerable labour, free of charge, to put the property in good and tenantable condition and that in consideration of him doing so the rental was reduced.
Finally, it was said that the widow should not be dispossessed of any of the personal property comprising the specific bequests referred to in the codicil to which she presently has possession to put it in the hands of the applicants for fear that by doing so the property may be put in jeopardy.
The estate of the deceased is quite extensive. Prior to his death, the deceased carried on business in partnership with at least some of his sons from part of the premises at 12 Hull Street. This business is still carried on by the surviving partners. Proper management of the estate by an independent person would require frequent consultation with one of the applicants and some expense. It is desirable to avoid that expense if possible. With respect to the personal property specifically bequeathed by the codicil, this expense could be avoided by appointing the applicants administrators pending suit. The interest of the respondent could be safeguarded by requiring the administrators to place the property in the hands of an independent person for safe–keeping until determination of the proceedings. However the management of 6 O'Brien Street is a difficult problem. The respondent has a half interest in the property. There can be no useful negotiations between her and the applicants to either sell the property or to raise the money to put it in good repair for letting. Meanwhile it lies empty and earns no income.
It therefore appears to me, in the circumstances of this case, appropriate to order that a person independent of the parties be appointed administrator pendente lite. The administrator will be at liberty to come to the Court for directions concerning the administration of the estate in particular the deceased's interest in the property at 6 O'Brien Street and its contents.
The order is that the Registrar of this Court appoint such person or persons as the parties may agree, or in default of agreement he may nominate, as administrator or administrators pendente lite of the estate of Antonio Suttil provided that such person or persons has or have first filed in this Court a written consent to the appointment. It is further ordered that in the event that the administrator appointed is the Public Trustee or a trustee company, no affidavit of fitness need be filed and no security lodged. Liberty is reserved to the parties to speak to the terms of this order and to the administrator or administrators to apply for directions with respect to the administration of the estate generally.
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