Tsaknis v Lilburne - [2010] WASC 152

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TSAKNIS as Executor and Trustee of the Estate of GEOFFREY DOUGLAS ROLAND LILBURNE (DEC) -v- LILBURNE [2010] WASC 152

CORAM: EM HEENAN J

HEARD: 21-22 APRIL 2010

DELIVERED : 22 APRIL 2010

PUBLISHED : 21 JUNE 2010

FILE NO/S: CIV 2693 of 2009

BETWEEN: LEO ANTHONY TSAKNIS as Executor and Trustee of the Estate of GEOFFREY DOUGLAS ROLAND LILBURNE (DEC)
Plaintiff
AND
DAVID DOUGLAS ROLAND LILBURNE
First Defendant
PATRICK GEOFFREY LILBURNE
Second Defendant
ROBERT ARTHUR LILBURNE
Third Defendant

CONSOLIDATED : PRO 3817 of 2006

MATTER :In the matter of the estate of GEOFFREY DOUGLAS ROLAND LILBURNE late of Koh-I-Noor Nursing Home, Pangbourne Street, Wembley, Western Australia, deceased
BETWEEN :LEO ANTHONY TSAKNIS
Executor to whom probate granted

CONSOLIDATED : PRO 2222 of 2009

MATTER :In the matter of the estate of GEOFFREY DOUGLAS ROLAND LILBURNE late of Koh-I-Noor Nursing Home, Pangbourne Street, Wembley, Western Australia, deceased
BETWEEN :DAVID DOUGLAS ROLAND LILBURNE
Applicant for double grant and removal of caveat

Catchwords:

Probate and administration - Application for double probate - Caveat against grant of double probate - Grant of probate in common form to one of two named executors - Other executor granted leave to come in and prove - Partially administered estate - Disputes over course of administration - Coexecutor making application to come in and prove and obtain a double grant - Caveat by grantee of probate against application - Summons to remove caveat - Directions generally

Trusts and trustees - Application by executor granted probate for trustee's directions - Trustees Act 1962 (WA), s 92 - Whether sufficient cause to try issue of whether second executor should obtain double grant - Power to pass over executor - Where arising

Trusts and trustees - Costs out of trust fund - Whether beneficiaries entitled to costs of application for directions

Consolidation of proceedings - Trustees Act 1962 (WA), s 92

Legislation:

Administration Act 1903 (WA)
Supreme Court Act 1935 (WA)
Trustees Act 1962 (WA), s 92

Result:

Consolidation of proceedings
Adjournment of applications for double grant and removal of caveat
Order that executor granted probate be at liberty to oppose application by other named executor for double grant on certain terms and conditions
Order for trial of issue as to whether other named executor should obtain double grant
Liberty to apply
Costs of all parties to application for directions to be paid out of estate

Category: A

Representation:

CIV 2693 of 2009

Counsel:

Plaintiff:     Mr D R Williams QC and Mr M D Cuerden
First Defendant             :     Mr S K Shepherd
Second Defendant         :     Mr K L Christensen
Third Defendant           :     Mr J G M Fiocco

Solicitors:

Plaintiff:     Gibson Tovey & Associates
First Defendant             :     Kershaw Legal
Second Defendant         :     Gadens Lawyers
Third Defendant           :     Fiocco's Lawyers

PRO 3817 of 2006

Counsel:

Executor to whom probate granted: Mr D R Williams QC and Mr M D Cuerden

Solicitors:

Executor to whom probate granted: Gibson Tovey & Associates

PRO 2222 of 2009

Counsel:

Applicant for double grant and removal of caveat: Mr S K Shepherd

Solicitors:

Applicant for double grant and removal of caveat: Kershaw Legal

Case(s) referred to in judgment(s):

Alcock v Public Trustee (1936) 53 WN (NSW) 192
Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220; [1995] 1 All ER 431
Bates v Messner (1967) 1 NSWR 638; (1967) 67 SR (NSW) 187
Bell v Timiswood (1812) 2 Phillim 22; 161 ER 1066
Campbell v Glasgow [1919] HCA 57; (1919) 27 CLR 31
Elders Trustee & Executor Co Ltd v Eastor [1963] WAR 36
Elovalis v Elovalis [2008] WASCA 141
Estate of Rogers v Rogers [2009] WASC 358
Evans v Tyler (1849) 2 Rob Eccl 128; (1849) 163 ER 1266
Harrison v Mills [1976] 1 NSWLR 42
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
Hart‑Roach v Public Trustee (Unreported, WASC, Library No 98044, 11 February 1998
In re Adcock [1904] 26 ALT 127
In re Atkinson (dec) [1971] VR 612
In re Devoy; Fitzgerald & Pender v Fitzgerald [1943] St R Qd 137
In re England's Settlement Trusts; Dobb v England [1918] 1 Ch 24
In re Hunter (dec) v Hunter [1932] NZLR 911; [1932] CLR 317
In the Estate of Crippen [1911] P 108
In the Estate of Shephard (dec) (1982) 29 SASR 247
In the Goods of Loveday [1900] P 154
In the Will of Keepkie (dec) [1960] Qd R 436
Leitch v Dore [2005] QSC 069; [2005] 2 Qd R 168
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198
Marsh v Patten (1868) 7 SCR (NSW) Eq 18
Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80
McDonald v Horn [1995] 1 All ER 961; [1995] ICR
Miller v Cameron (1936) 54 CLR 572; [1936] ALR 301
Monty Financial Services Ltd v Delmo [1996] 1 VR 65
Perpetual Trustees WA Ltd as Executor of the Will of Goyder (dec) v Goyder (Unreported, WASC, Library No 990138, 24 March 1999)
Phelan v Booth (1941) 43 WALR 60
Porteous v Rinehart (1998) 19 WAR 495
Re Beddoe; Downes v Cottam [1893] 1 Ch 547
Re Buckton [1907] 2 Ch 406
Re Chapman [1903] P 192
Re Estate of Biggs (dec) [1966] 1 All ER 358; [1966] 2 WLR 536
Re Estate of Crane [2005] SASC 379; (2005) 93 SASR 198
Re Estate of Crossland [2001] WASC 21
Re Finn [1942] VLR 125; [1947] ALR 167
Re Giles (dec) [1972] Ch 544
Re Grose (dec) [1949] SASR 55
Re Hillston; Bar‑Mordecai v Rotman (Unreported, NSWSC, Library No 9804681, 4 September 1998)
Re Nilant [2004] WASC 7; (2004) 28 WAR 81
Re Paine's Estate (1916) 115 LT 935
Re Saunders Nominees Pty Ltd; Ex parte Saunders Nominees Pty Ltd [2007] WASC 152
Re the Estate of Drawmer (dec) (1913) 108 LT 732
Re the Estate of S (dec) [1968] P 302
Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070
Weinstock v Beck [2007] NSWSC 193; (2007) 1 ASTLR 156
Wheatley v Edgar [2003] WASC 118

EM HEENAN J: Three separate applications for directions, orders and other relief have been listed for hearing together. They concern the administration of the estate of Geoffrey Douglas Roland Lilburne (dec) who died on 25 July 2006 leaving a last will dated 7 December 2004 unrevoked and with no codicil. A grant of probate of that will was made by this court in common form on 5 October 2006 to Leo Anthony Tsaknis, one of the two executors appointed under the will, with leave reserved to David Douglas Roland Lilburne, the other executor, to apply for probate.
Mr Tsaknis has embarked upon the administration of the estate of the deceased and, so far, has identified many but not all, of the assets of the deceased; has realised certain assets and made partial distributions to the beneficiaries entitled under the will. In the course of doing so a number of issues have arisen between Mr Tsaknis as the grantee of probate and the other named executor Mr David Lilburne which, so it seems, have impeded or delayed the ascertainment of some of the assets of the deceased and their value and which also may effect the course of the administration of other valuable assets of the estate. This has led to the three matters now before the court which are:
1.PRO 3817 of 2006 – an application by Mr David Lilburne for a grant to him of double probate of the will of the deceased;
2.PRO 2222 of 2009 – an application by Mr David Lilburne for the removal of a caveat against his application for double probate lodged by Mr Tsaknis, the executor to whom probate has already been granted;
3.CIV 2693 of 2009 – an originating summons by Mr Tskanis as executor and trustee of the estate of the deceased for orders and directions pursuant to s 92 of the Trustees Act 1962 (WA) and for declarations that he be at liberty:
(a)to oppose the application by Mr David Lilburne for a grant of double probate of the will of the deceased; and
(b)to seek revocation of the leave reserved by the original grant of probate made on 5 October 2008 for Mr David Lilburne to apply for probate.
In this third set of proceedings the first defendant, David Lilburne, was originally the sole defendant but by subsequent interlocutory orders his two brothers, Patrick Geoffrey Lilburne and Robert Arthur Lilburne, themselves co‑beneficiaries of the estate, have been joined, respectively, as second and third defendants.
At the hearing there was, initially, some controversy over which application should be dealt with first and in what order the remaining applications ought to be dealt with or, alternatively, whether all ought be dealt with simultaneously. For reasons which will emerge later I decided that it would be convenient to hear general submissions on all matters but that the application for directions pursuant to s 92 of the Trustees Act (that is, CIV 2693 of 2009) should be determined first. At the end of the hearing I also ordered and directed that all three matters should be consolidated and, subject to any subsequent order, should be carried on together but that PRO 3817 of 2006 should be the leading matter.
The deceased was a retired medical practitioner and died aged 80. He left, surviving him, his widow Mary Gertrude Lilburne and their four adult children: David Lilburne born 29 December 1953; Robert Lilburne born 5 June 1956; Patrick Lilburne born 15 September 1958; and Anne Marie Tsaknis (nee Lilburne) born 9 April 1960. All of the four children are married and there are 10 grandchildren. David has three children, Patrick Lilburne has one daughter, Robert has three children, and Anne Marie Tsaknis has three children. Anne Marie Tsaknis is married to Mr Tsaknis, the executor to whom probate has been granted who is, accordingly, the only son‑in‑law of the deceased.
By his last will the deceased appointed his son, Mr David Lilburne, then and now resident in New York in the United States of America and his son‑in‑law, Mr Tsaknis, then and now resident in Western Australia who is a legal practitioner and practicing barrister in this State as his executors and trustees. By his last will the deceased made a series of dispositions and conferred a number of express powers upon his trustees. It is not necessary to detail all the provisions of the will, nor all the powers of the named executors. For present purposes it is sufficient to mention only the following major dispositions, namely:
(a)the grant to his widow of the right to live in the estate's half‑share of the family home at The Avenue, Nedlands, together with the use of all furniture, fittings and household articles, subject to a power of sale with the proviso that, so long as Mrs Lilburne desired to occupy the home as her principal place of residence, neither it nor its contents should be sold without her consent, and also subject to a power to let the premises with the rent payable to Mrs Lilburne and with a power to sell or mortgage the home and use the proceeds to purchase another residence for her together with other associated powers;
(b)when the trusts and interests of Mrs Lilburne in the house and contents at The Avenue, Nedlands, or any substitute property eventually end to hold the estate's interest in that property, or any substitute property, as part of the residuary estate;
(c)to hold the deceased's estate and interest in other specified land at Baldivis on trust for sale and for the proceeds of sale to be distributed equally between his four children;
(d)from the residuary estate there be legacies (adjustable in the event that the residuary estate were not sufficient to satisfy them) of $100,000 to each of the deceased's grandchildren to be held on trust for each grandchild for his or her education or medical expenses up to the age of 25 years at which date the remaining balance of the legacy should be paid to the grandchild absolutely;
(e)the balance of the residuary estate to be divided equally amongst the deceased's four children.
There is also the usual provision providing for substitutional gifts should any of the deceased's children predecease him leaving grandchildren who survived him. The express powers conferred on the trustees include powers to sell, lease, exchange or otherwise dispose of any of the assets of the deceased and to rezone, subdivide, partition or otherwise breakup any real or personal property of his estate and to sell such divided portion, and to borrow money with or without security over any part of the estate and other like powers.
Following the death of the deceased an application for probate in common form was made by Mr Tsaknis, one of the executors named in the will but on the basis that leave be reserved to his co‑executor Mr David Lilburne to come in and prove. As already noted, probate was granted to Mr Tsaknis on that basis. The evidence from Mr Tsaknis is that he, and Mr David Lilburne, discussed the question of who should apply for probate of the deceased's will shortly after the death and that agreement was reached that Mr Tsaknis should apply alone, but reserving liberty for his brother‑in‑law to come in and prove, because of the latter's residence in the USA and the practical difficulties that his absence from this State might be expected to cause in the course of administration. The evidence from Mr Tsaknis is that this was a consensual arrangement but there is an assertion in an affidavit from Mr David Lilburne that, from his view point, it proceeded on a different basis but it is quite unnecessary to go into that now.
Having obtained the grant of probate Mr Tsaknis embarked on the course of administration, and began identifying and collecting various of the estate assets. The value of the estate is quite large. In the statement of assets and liabilities accompanying the application for probate the gross value of the estate in September 2006 was estimated to be slightly more than $17 million with only relatively small liabilities leaving a net value estimated at $16.988 million. The major items of value were:
(a)the land at Baldivis, then estimated to be worth $12.5 million;
(b)the deceased's half‑share in the home at The Avenue, Nedlands, then estimated to be worth $2.325 million;
(c)a portfolio of shares worth in excess of $2 million;
(d)movable property including silverware, books, maps, prints, then estimated to be worth some $1.51 million;
(e)a loan to the GDR Lilburne Family Trust of $192,475.
There were also some bank accounts and personal effects.
The administration of the estate by Mr Tsaknis to date has led to the realisation of a number of the available assets and the payment in full of the legacies to all the grandchildren. The administration has also led to a number of partial distributions to each of the four children. At present, the unrealised assets of the estate include the half‑interest in the house and contents at The Avenue, Nedlands, which is still being occupied by Mrs Lilburne pursuant to her rights under the will; the land at Baldivis; and part of the deceased's collection of books, maps and prints.
At this point it can be observed that the deceased had a lifetime interest in historic books, maps, prints and similar artefacts and over the years assembled a very significant collection of such materials. His son, Mr David Lilburne, shares that interest and is a professional specialist antiquarian and conducts an antiquarian's business from New York dealing with such materials, not just Australian antiquities, on a world‑wide basis. As such he has special interest, knowledge and skill in dealing with antiquarian materials and special knowledge and contacts in the intricate field of valuing and securing the sale of such materials.
The estate land at Baldivis consists of a significant area of vacant undeveloped land which is ripe for subdivision and sale in an area where residential and semi‑rural development is rapidly progressing. It is the belief of the beneficiaries that, since their father's death, that land has appreciated even more in value and has the potential to continue to appreciate significantly. An important responsibility in the administration of the estate will be to decide when, where and how that asset should eventually be realised. That decision may need to take into account the question of whether or not the trustee should seek to subdivide and sell some or all of the land and, if so, whether or not to do so in stages or how otherwise to realise it to advantage.
Another of the assets of the estate is the sum of $192,475, already noted, being the amount of the loan by the deceased to the GDR Lilburne Family Trust owing at the date of death. According to the affidavit of Mr Tsaknis, which in this respect is not contested, this is the balance remaining in June 2006 of an advance of $321,087 made by the deceased to that trust on 18 January 1995. A further sum was advanced to the trust by Mrs Mary Lilburne. The trustee is a company, Rampard Pty Ltd (Rampard), of which the deceased held, and therefore now Mr Tsaknis as executor and trustee of his estate holds, 50 % of the issued shares. The present directors are the widow, Mrs Lilburne, and the third defendant, Mr Robert Lilburne. The evidence is that in or about January 1995 Rampard, as trustee, advanced to Mr David Lilburne and his wife an amount of $357,598 or thereabouts being the proceeds of the loans made by the deceased and Mrs Lilburne to the trust shortly before.
According to Mr Tsaknis he has not been able to ascertain the balance of the loans to Mr David Lilburne and his wife presently due and owing to Rampard. However, on the evidence available to Mr Tsaknis the amount owing at May 1998 might be either $169,000 or $140,000. As a result of analysis of financial statements and advice provided to him by a firm of accountants whom he has engaged on behalf of the estate, the amount of that loan due as at 30 June 2006 was $327,495. Mr Tsaknis has been in correspondence with his brother‑in‑law, Mr David Lilburne, about this matter requesting particulars of the amounts due to Rampard and a schedule of any repayments but has been unable to ascertain the current position. According to him, some schedule of payments has been submitted but these cannot be reconciled with the accountants' records. Furthermore, the position of Mr David Lilburne is that Mr Tsaknis is not entitled to this information because the debts, if any, are due by himself and his wife to Rampard and not to the estate. The contention is that because Mr Tsaknis is not an officer or agent of Rampard he, therefore, has no authority to make demands or seek information on behalf of that trustee company.
The response from Mr Tsaknis is that while he is not, of course, an officer or an agent of Rampard he is at present the sole executor of the estate which appears to be the only substantial creditor of Rampard and as such is entitled to enquire whether or not the debt to the estate due by Rampard, which is not contested, is likely to be recoverable and, if so, how and by what means. In particular, Mr Tsaknis needs to know whether it may be necessary to resort to enforcement measures or whether some accommodation can be reached with the debtors of Rampard which would enable them to discharge their liabilities to the trustee company in a manner which would see the debt due by the trustee company to the estate repaid on acceptable terms and conditions.
It is true that, to be enforceable, demands for repayment of any balance due of the debt owing by Mr David Lilburne and his wife to Rampard, or the provision of accounts relating to the quantification of that debt and the current position in relation to payments of interest, will need to be made by or on behalf of Rampard, presumably by its directors and that, in his position as an executor to whom probate has been granted of the estate of the deceased Mr Tsaknis is not in a position to insist that this be done. Nevertheless, if Rampard is unwilling or unable to repay the admitted debt due to the estate, then, as executor of the estate Mr Tsaknis will be entitled to take proceedings against Rampard which, presumably, would lead to a judgment for the amount of the undisputed debt and then to pursue a number of remedies against the company including, possibly, the appointment of a receiver or liquidator to collect the assets of Rampard in order to satisfy its liabilities. Whether or not he should resort to such measures is a matter to which he may need to give consideration in performance of his duty as trustee. Therefore, I consider that it is reasonably incidental to the performance of that duty for Mr Tsaknis to enquire about, so far as he is able to do so, just what is the position in relation to the indebtedness of Mr David Lilburne and his wife to Rampard and what are the prospects for the recovery by Rampard of that debt.

Accordingly I consider that Mr Tsaknis is entitled to make the enquiries which he has made of Mr David Lilburne about this subject even though, strictly speaking, Mr David Lilburne is correct in maintaining that he is not obliged to respond or to give an account of those matters to Mr Tsaknis. That at least remains the position so long as Mr David Lilburne remains a debtor of Rampard. But, despite submissions to the contrary, I consider that the position then changes significantly if, as has now happened, Mr David Lilburne seeks a grant of double probate of the estate of the deceased so as to become a co‑trustee with Mr Tsaknis responsible for the due administration of the estate including the pursuit of claims against Rampard which will necessarily involve Rampard in seeking to recover some or all of the debt due to it by Mr David Lilburne and his wife. In that situation I consider that because of his desire to become a joint trustee of his late father's estate he comes under an obligation to make full disclosure of the nature and extent of the indebtedness due by himself and his wife to Rampard because of the direct significance which that has to the ability of the estate to collect the debt due to it by Rampard.
Furthermore, in the course of administration of the estate Mr Tsaknis has completed the transfer of the deceased's half‑share in the family home at The Avenue, Nedlands into his name as executor, with leave reserved for the Mr David Lilburne to come in and prove. Similarly, he has secured the transfer of the deceased's interest in the whole of the land at Baldivis into his name as executor on the same terms. The transfer of both those interests and the registration of those interests in the name of Mr Tsaknis as executor occurred in late February 2007. The portfolio of shares of the deceased has been sold and the proceeds of sale was credited to the estate bank account in late November 2006. Of the deceased's valuable collection of books, maps and prints, part of the collection known as 'The WA Collection' was sold by Mr Tsaknis in April 2008 for the amount of $2.3 million. A quantity of books, maps and prints remains. This is held at the home at The Avenue, Nedlands together with further items said to be held by Mr David Lilburne in New York.
Another subject in contention between Mr Tsaknis and Mr David Lilburne is that the former has requested and the latter has so far declined, to give an inventory of the remaining items in the collection and to return the items held by Mr David Lilburne in New York. Mr David Lilburne submits that this is not the case and says that, although in the past he had offered to do so, he is under no obligation to prepare an inventory of the collection which is housed at the home in The Avenue, Nedlands, and, that if such inventory is necessary it can and should be arranged to be prepared by or on behalf of Mr Tsaknis here in Western Australia. He also maintains that there are no items of the collection in his possession or control in New York but, in that regard, there is evidence to indicate that a number of particularly valuable items had been sent to him in New York for appraisal, refurbishment (by rebinding and otherwise) and with a view to sale but that these have not been returned and that no account has been provided of their present whereabouts or disposal.
In the past Mr Tsaknis had raised with his brother‑in‑law, Mr David Lilburne the possibility that the latter may sell some or all of the books, maps and prints forming assets of the estate in return for payment of 10 % commission - including The WA Collection. According to Mr Tsaknis such an arrangement was concluded but Mr David Lilburne maintains that his agreement was to sell The WA Collection for a commission of 10 % but that a higher commissions ranging up to 50 % for some items would be payable in respect of other items in the collection. As already noted The WA Collection of prints, maps and books has been sold by Mr Tsaknis, he says largely as a result of his own initiatives. Nevertheless Mr David Lilburne has demanded payment of commission of $230,000 and, despite some misgivings, and with the express agreement of Mr Robert Lilburne and Mrs Anne Marie Tsaknis, he paid $230,000 commission to Mr David Lilburne. Mr Patrick Lilburne on this, and other issues, supports the position of his brother Mr David Lilburne.
The evidence discloses that there is a lack of agreement between Mr Tsaknis, as executor and trustee of the estate, and Mr David Lilburne about the terms of sale and commission relating to the balance of the collection of books, maps and prints. There also have been disagreements about: the manner in which partial distributions of the estate should be made payable to Mr David Lilburne; concerning the identity of the person or entity to which payment should be made; the susceptibility of such payments to taxation or similar imposts whether in Australia, the USA or elsewhere; and the terms upon which Mr David Lilburne might sell the balance of the collection to a buyer which he reported as having identified.
Another matter of potential difference between Mr Tsaknis and Mr David Lilburne concerns the handling of the Baldivis land. As already appears, this is the most valuable remaining asset of the estate and several important decisions need to be made as to how, when and by what means it should be realised. One of the other beneficiaries, the second defendant Mr Patrick Lilburne, is, by profession, a real estate agent. Mr David Lilburne has proposed that he should be engaged on commission to sell the Baldivis land. As already indicated Mr Tsaknis has not reached any decision as to how or when the Baldivis land should be realised but is giving consideration, as one possibility, to the prospect that the estate might itself undertake the subdivision development sale of the land and proposes to seek advice from a number of different persons with experience in the development and realisation of such land with subdivisional potential in that respect. He is, therefore, not willing to commit the estate to the sale of the land or to the engagement of Mr Patrick Lilburne, or indeed any other person, as a commission agent to procure the sale of the property in the near future. It seems that Mr David Lilburne desires to press for the appointment of his brother, Mr Patrick Lilburne, as commission agent for the sale of the property and to secure its realisation in the near future. Again, in this respect, the second defendant Mr Patrick Lilburne supports the position taken by his brother David.
The evidence does not even attempt to allow the question of how, when and by whom the Baldivis land should best be realised to be decided. However, it is evident that this is a major question, likely to have significant impact on the administration of the estate, which will call for a responsible decision by the trustee or trustees and which may require additional professional and valuation advice to be obtained. That decision is likely to involve the weighing of a number of important considerations, including comparison of the potential advantages to the estate of an immediate sale of the land without development, against the prospects of a more protracted sale of some or all of the land either before or after a residential or semi‑urban subdivision. Decisions of that kind will require careful thought, enquiry and consideration by whichever trustee or trustees may have the eventual responsibility for the making the decision.
According to Mr Tsaknis the remaining assets of the estate, as yet unadministered, have fluctuated in value since the death of Dr Lilburne, but, in his affidavit of 24 September 2009, Mr Tsaknis estimated they were then worth somewhere between about $15 million and $16 million. Each of the four children of the deceased, including Mr David Lilburne, is entitled to receive one‑quarter of the net value of the estate once the assets are eventually realised.
Mr David Lilburne remains resident in the USA where he has lived for the past 30 years or so. He has, however, been accustomed to make regular, usually annual or more frequent, visits to Australia and Western Australia but, by all accounts, he intends to remain a resident in the USA.
This account of differences between Mr Tsaknis and Mr David Lilburne is slightly more limited and neutral than the details contained in the evidence and does not fully describe the sharpness of the differences which have resulted. For example, I have not attempted to detail the events which led to a telephone argument between Mr Tsaknis on the one hand and Mr David Lilburne on the other in July 2008 over the latter's demand for payment of commission during which, as he now admits, Mr David Lilburne lost his temper and threatened to come and kill Mr Tsaknis – a threat which he explained was in fact made in the heat of the moment and without any intention to carry it out. Nevertheless, Mr Tsaknis and Mr David Lilburne have not spoken since July 2008 and, sadly, the relationship has deteriorated to the point at which Mr Tsaknis maintains that, in all conscience, he feels that he would be unable to undertake the mutual obligations of trust and responsibility for the administration of the estate with Mr David Lilburne. Mr Tsaknis asserts that it would be practically impossible for them both to work together to deal with the remaining issues concerning the administration of the estate being, in particular, the identification and realisation of the balance of the collection of the books, maps and prints, and the important and difficult decisions which will need to be made about the manner in which the value of the Baldivis land is best realised for the estate.
A major reason for reticence at this stage of these proceedings when describing the allegations which have been advanced by Mr Tsaknis against Mr David Lilburne and vice versa with regard to the state and nature of the disagreements between them, is because I am satisfied that this is not the occasion when the court can, or should, attempt to make final findings in respect of those questions. Rather, I consider that the real function of the present proceedings is to consider whether or not there is sufficient cause to withhold making an immediate grant of double probate of the will of the deceased to the named co‑executor Mr David Lilburne and, instead, to order the trial of issues to consider whether or not he should obtain such a double grant or again be passed over either temporarily or permanently. If I were satisfied that there was sufficient reason to order the trial of such cause or causes then that should be done and, in the trial of that cause or causes, a full examination of the allegations made concerning Mr David Lilburne's conduct in relation to his dealings with his father's estate; the extent, if any, of his and his wife's indebtedness to Rampard; the existence of estate property or the proceeds of such property in the possession or control of Mr David Lilburne; arrangements for the sale of the remaining portions of the collection; and, perhaps but not necessarily, details of the competing views about the manner in which the Baldivis land should be sold would have to be examined and decided upon. In view of that potential necessity it is obviously inappropriate to make any final findings upon any of these contentious issues. Accordingly, as indicated, I consider that at this stage of the proceedings the court should confine its attention to whether or not sufficient reason has been shown to require an order for the trial of the cause or causes on the question of whether or not Mr David Lilburne should obtain a grant of double probate of his father's will.
This question is a very similar to, if not indistinguishable from, the issue raised by Mr Tsaknis in the originating summons for directions under s 92 of the Trustees Act. The existing executor and trustee is seeking advice and directions from the court as to whether he is justified in opposing his brother‑in‑law's application for a grant of double probate and is seeking an order that the leave granted by this court in the grant of probate of 5 October 2006 for Mr David Lilburne to apply for probate should be unconditionally revoked.
A decision to order the trial of a cause or causes over whether or not there should be a double grant, would mean that the court is satisfied that there is, objectively, sufficient reason to conduct a trial as to whether or not there should be a double grant, and whether or not the leave to come in and prove should be revoked unconditionally or temporarily. If the court refused to order the trial of such a cause or causes then, on the evidence as it stands, including the evidence that the will already proved was the valid will of the deceased and that he appointed, as well as Mr Tsaknis, his son Mr David Lilburne as a named co‑executor then, subject to the proof of the eligibility and willingness of Mr David Lilburne to obtain a double grant it would necessarily follow that the caveat against his application for a grant should be removed and that the double grant should issue. However, in this case the issue sought to be raised by Mr Tsaknis concerns the eligibility, in the sense of the suitability, of Mr David Lilburne to obtain a double grant because of his conduct in the past and because of the probable effects which such an appointment would have upon the future administration of the estate were that to occur. If, because of the concerns advanced by Mr Tsaknis and the evidence in support of them which he has submitted, Mr David Lilburne is not, having regard to the circumstances, a suitable person to be appointed as co‑trustee of his father's estate and/or because of practical problems which could be expected to arise in the further administration of the estate if he were so appointed, there seems to be a real question as to whether or not in these particular circumstances, there should be a double grant.
These considerations also reflect the matters which the court needs to take into account when considering whether or not to give directions under s 92 of the Trustees Act and, if so, the directions to be given. A decision to grant directions as sought by Mr Tsaknis would be a recognition that, in all the circumstances, there were arguable reasons sufficient for Mr Tsaknis to oppose his brother‑in‑law's application for a double grant and for the removal of the caveat which would have the consequence of the court conducting a trial of the question whether or not such a double grant should be made. This identifies the similarity, in substance, between the issues raised by the originating summons under s 92 of the Trustees Act and the corresponding issue of whether or not there should be an order for trial of a cause or causes in the probate proceedings as already described. An important difference, however, is that if the court declined to give directions along the lines sought by Mr Tsaknis on the s 92 application, he would, nevertheless, still be entitled to oppose the application by Mr David Lilburne for a double grant and for the removal of his caveat but, in doing so, may be at peril personally for the costs of the proceedings. Of course if I were of the view that there was no sufficient basis for the court to order the trial of an issue as to eligibility of Mr David Lilburne to obtain a double grant then that would, almost as if it were a summary judgment application, resolve the caveat proceedings and the double grant proceedings and result in a favourable determination of those proceedings for Mr David Lilburne leaving Mr Tsaknis unsuccessful. However, there is no reason for me to conclude that the matters raised by Mr Tsaknis do not amount to an arguable case for the refusal of a grant of double probate in favour of his brother‑in‑law and I do not, therefore, consider that such a summary disposition of these proceedings is, on the evidence, possible.
This examination of the evidence and history of the administration of the estate of the late Dr Lilburne now brings me to a consideration of a number of the legal issues which have been raised by the parties bearing on the claims advanced. I consider that these can be grouped under the following principal headings:
1.Is this a case in which the court can and should give directions under s 92 of the Trustees Act or otherwise to Mr Tsaknis in his capacity as executor and trustee of the estate of the deceased or is it, as counsel for Mr David Lilburne submits, an occasion when the court does not have any such jurisdiction to entertain that application?
2.Where the court has already ordered, by the grant of probate on 5 October 2006, that Mr David Lilburne have leave to apply for probate, can this court now raise or determine any issue over whether or not he should obtain such a double grant or, put another way, is it beyond the power of the existing executor and trustee, Mr Tsaknis, to object to a double grant being made in favour of a co‑executor named by the deceased in his last will which has already been proved?
3.Does the court have power to order that such a named executor be passed over in any grant of probate, whether the original grant or a subsequent application for a double grant by that named executor who had leave reserved, to come in and prove?
It will be necessary to examine each of these somewhat complicated issues in detail.

Application for directions pursuant to s 92 of the Trustees Act or otherwise

The originating summons in CIV 2693 of 2009 invokes the power of the court under s 92 of the Trustees Act to give directions to a trustee. That section provides:
92.Directions, trustee may ask Court for
(1)Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.
(2)Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient.
However, this is not the only source of the jurisdiction and power of the court to give directions with the respect to questions arising concerning powers or duties of trustees or in the administration of trusts. This court has jurisdiction under s 16(1)(d)(i) of the Supreme Court Act 1935 (WA) as a court of equity with power and authority to do, exercise and perform all acts, matters and things necessary for the due execution of such equitable jurisdiction as, at commencement of the Supreme Court Ordinance 1861, the Lord Chancellor of England could or lawfully might have done within the realm of England in the exercise of the jurisdiction to him belonging; …' with the consequence that this court has general jurisdiction in equity extending to all matters relating to and concerning the operation, administration or terms of any trust and the duties and obligations of any trustee. Without in any way restricting the amplitude of these powers, the Rules of the Supreme Court 1971 (WA) O 58 r 2 provide that any trustee or any person interested under the administration of a deceased estate or under any trust may apply on originating summons for the determination, without a general administration of the estate or trust, of any of a number of designated questions or matters including '(g) the determination of any question arising in the administration of the estate or trust'.
The availability of this jurisdiction to enable a trustee to seek directions from the court, including 'judicial advice', as to whether or not to commence or to defend legal proceedings affecting the interests of the trust estate has been confirmed on many occasions and, recently, at the highest level in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 (the 'Macedonian Orthodox Community case'), especially at [37] – [74]. Earlier examples of the settled jurisdiction of the court to entertain applications for advice as to whether or not a trustee should sue or defend pending or anticipated litigation are provided by In re England's Settlement Trusts; Dobb v England [1918] 1 Ch 24; Alcock v Public Trustee (1936) 53 WN (NSW) 192; Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198 PC; and Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220; [1995] 1 All ER 431. This has been referred to the court's 'supportive, supervisory jurisdiction in addition to its punitive enforcement role' – Hayton D J, Underhill and Hayton Law of Trusts and Trustees (16^th ed, 2003) at 37.

The power can be employed by the trustees not only in cases where litigation is imminent or pending but where any doubt exists as to their position or correct course of action. The so‑called 'Beddoe' applications are discussed in Underhill and Hayton (supra) at (815 – 817 and 841). This recourse is part of the duty of a trustee to protect and preserve the trust estate and, accordingly, to represent the trust in third party disputes (Underhill and Hayton, 844). In the Macedonian Orthodox Community case, Gummow ACJ, Kirby, Hayne and Heydon JJ said [58] that only one jurisdictional bar to the employment of the analogous statutory jurisdiction existed, namely, the existence of some question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument, and, at [64] that the jurisdiction enabled the court to provide 'private advice' to the trustee for the trustee's personal protection, and:
[71]In short, provision is made for a trustee to obtain judicial advice about the prosecution or defence of litigation in recognition of both the fact that the office of trustee is ordinarily a gratuitous office and the fact that a trustee is entitled to an indemnity for all costs and expenses properly incurred in performance of the trustee's duties. Obtaining judicial advice resolves doubt about whether it is proper for a trustee to incur the costs and expenses of prosecuting or defending litigation. No less importantly, however, resolving those doubts means that the interests of the trust will be protected; the interests of the trust will not be subordinated to the trustee's fear of personal liability for costs. (emphasis added)
[72]It is, therefore, not right to see a trustee's application for judicial advice about whether to sue or defend proceedings as directed only to the personal protection of the trustee. Proceedings for judicial advice have another and no less important purpose of protecting the interests of the trust.
The position has long been recognised that a trustee, including an executor of a deceased estate, if in doubt about the course of action to be adopted in the course of administration of the estate or the trust, may always apply to the court for its opinion, direction or advice: In re Atkinson (dec) [1971] VR 612, 615.
Nevertheless, Mr David Lilburne, by his counsel, advances submissions: that the relief being sought by Mr Tsaknis is not for 'directions' within the meaning of s 92; that he does not seek the guidance of the court in the exercise of powers conferred upon him by the will; but rather seeks directions that he be 'at liberty' to oppose the grant of double probate and to seek revocations of the leave to come in and prove. Mr David Lilburne further submits that the jurisdiction of the court under s 92 is limited to giving directions to the trustee as to the manner in which the trustee should administer the trust estate: Perpetual Trustees WA Ltd as Executor of the Will of Goyder (dec) v Goyder (Unreported, WASC, Library No 990138, 24 March 1999) (Commissioner Martin QC). However, an examination of that decision does not support any such far‑reaching proposition, the observations of the learned Commissioner being confined to the facts and circumstances peculiar to that case and not expressing or implying any such limitation on the jurisdiction of the court. Mr David Lilburne also submits that s 92 ought not be used to determine substantive issues which involve the resolution of a contest between the trustee and other parties to the trust: Re Nilant [2004] WASC 7; (2004) 28 WAR 81 [41]; Re Saunders Nominees Pty Ltd; Ex parte Saunders Nominees Pty Ltd [2007] WASC 152 [3] (Martin CJ).
There are many cases containing dicta that the procedure should not be used to determine substantive issues involving hostile disputes between a trustee and beneficiaries – Harrison v Mills [1976] 1 NSWLR 42 [45]; and Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, 440, but these dicta now need to be read in the light of the observations in the Macedonian Orthodox Community Church case that there are no limitations implied upon the exercise of the jurisdiction once it is enlivened and such expressions of judicial opinion about when the statutory power applies go rather to discretion than to power: [56], [75].
However, those discretions do raise questions about the suitability of the procedure if there are likely to be contested issues of fact or allegations of breach of trust or misconduct of any kind by one party interested in the administration of the trust against another. That is why I have considered that it is desirable in the present proceedings, to deal with the application for directions under s 92 as a preliminary matter in order to determine whether or not Mr Tsaknis, as the existing trustee to whom probate has been granted, does have sufficient reason to oppose the claim for double probate and related matters sought by Mr David Lilburne. That first question is a matter which can, and in my view should, be determined on the s 92 application without attempting to embark, at least on this occasion or in the s 92 application, on any final determination of whether or not there should be a grant of double probate to Mr David Lilburne or whether he should be passed over again either permanently or temporarily.
Part of this determination will involve an assessment, at this preliminary level, of whether, if Mr Tskanis's allegations were to be established and accepted, they would amount to grounds upon which the desired grant of double probate could be refused. That is a matter which is examined more fully later.
If there are reasons which would render it unsuitable for Mr David Lilburne now to be granted double probate of his father's estate and so become a co‑trustee with Mr Tsaknis responsible for the further administration of the estate, particularly, if as has been alleged, the prospects for future due administration would be compromised because of Mr David Lilburne's alleged refusal to disclose the extent of maps, books and prints being property of the estate, in his possession or control or because of the absence of a sufficient degree of mutual trust, cooperation and confidence existing between co‑trustees who would ordinarily be expected to have to agree on decisions relating to the continued administration of the trust, then circumstances would exist which would affect the administration of the trust. Accordingly, any question about the suitability of Mr David Lilburne to be appointed as a co‑trustee is a question which will affect the due administration of the trust. This brings the question sought to be raised by the existing trustee, Mr Tsaknis, directly within the scope of s 92 of the Trustees Act and permits, indeed requires, this court to consider what directions or advice should be given to the existing trustee in the present circumstances.

Grants of double probate

Where several executors are named in a will, if a grant of probate is made only to one or to some of them it is the practice of the court to reserve the power to make a like grant to those others who are competent to act and who have not renounced – Martyn J R and Caddick N, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (19^th ed, 2008) [25‑14]. So, in this case where the late Geoffrey Lilburne made a will appointing both his son, Mr David Lilburne, and his son‑in‑law, Mr Tsaknis, as his named executors and trustees, and when the original application for the grant of probate was made only by Mr Tsaknis, the grant was made to him with, as already noted, leave being reserved for Mr David Lilburne to apply for probate, as he had not renounced his right to do so. When, as now, an executor who has not joined in applying or obtaining an original grant of probate but has been granted leave to apply, subsequently makes an application for probate, the ensuing grant, if it occurs, is known as a double probate. It is made in general terms and relates to the remaining unadministered estate at the date of the second or subsequent grant - Halsbury's Laws of England (4^th ed, 2005) vol 17(2) [152]. It runs concurrently with the first grant if any of the first grantees are still living and it confers the same rights as an original grant. It follows that there may be several current grants of double probate – D'Costa R and Winegarten J, Tristram and Cootes: Probate Practice (29^th ed, 2002) [13.122].
Counsel for Mr David Lilburne submits, in reliance upon the decision of In the Will of Keepkie (dec) [1960] Qd R 436 that, because there has already been an uncontested grant of probate of the will of the deceased to Mr Tsaknis he has no standing to oppose a grant of double probate to Mr David Lilburne or to seek revocation of the leave reserved to Mr David Lilburne. His submission is that as Mr Tsaknis has himself obtained a grant of probate in common form no proper objection could be made by him to a further grant generally.
In Keepkie, the Full Court of the Supreme Court of Queensland held that an executor, to whom a grant of probate in common form had been made, reserving leave to a co‑executor, who had not renounced, to come in and prove later, did not have a sufficient interest to entitle him to object to a double grant in favour of the named co‑executor so as to require the named co‑executor seeking the double grant to seek proof of the will in solemn form of law. The decision concerns the nature of the interest necessary for a person to support an objection to a grant of probate by the lodgement of a caveat or otherwise and does not appear to mean anymore than that the position of a named executor, to whom probate has already been granted, does not of itself create such a sufficient interest. The case has been cited, without criticism, on other occasions in relation to the need for a sufficient interest to exist to support such a caveat or objection ‑ Re Estate of Crossland [2001] WASC 21; and Leitch v Dore [2005] QSC 069; [2005] 2 Qd R 168 but neither of those decisions deals with the situation where an objecting executor has attempted to advance positive reasons why the applicant for the double grant should be passed over and, accordingly, they are distinguishable from the situation arising in this present case. The latter case makes clear that the issues arising in Keepkie related to the sufficiency of a claim for standing for a person to insist that a testamentary document should be proved in solemn form of law because, in Leitch v Dore [12] the court cited with approval the decision of the Queensland Full Court in In re Devoy; Fitzgerald & Pender v Fitzgerald [1943] St R Qd 137 where Philp J, with whom Webb CJ and Mansfield J agreed, said
Now … no person, whether he were next of kin to the deceased or not, could oppose a grant of probate of a will unless he had some interest to protect; that is to say, that no person could force an executor to bring an action to prove a will in solemn form and oppose the grant of probate unless he could show that such a grant would affect some interest of his own. … a person who merely had an interest or pretended interest in the estate could not, merely upon showing such an interest or pretended interest, oppose a will: he must have been able to show that the grant of probate would affect some interest of his. … these principles were based on deep-rooted policy, because it is contrary to the interest of the State that persons having nothing to gain thereby should be permitted to institute or intervene in litigation, and courts are not established to enable parties to litigate matters in which they have no interest affecting their liberty, rights or property
before going on to say that no narrow view of the concept of interest would be taken.
The passage in the reasons of Stable J in Keepkie (supra) relied upon by counsel for Mr David Lilburne is to be found at (441) where his Honour addressed the issue of what possible interest an executor to whom a grant of probate had been made in common form might have to object to a grant of double probate to a named co‑executor so requiring the co‑executor to seek proof in solemn form of law. His Honour said:
As executor he has proved the will. Now, for some reason which he did not, it seems to me, instruct his counsel to disclose, he seeks to have the beneficiary who is his co‑executor prove it in solemn form. That appears to me to be contrary to the principle expressed in Mortimer on Probate (2^nd ed, 1927): p 512:
'An executor who has proved a will in common form cannot, as such executor, question the validity of that will. He has no right, therefore, merely in his capacity as executor, to cite the persons interested under it to propound it in solemn form'.
One can readily appreciate and accept this position because, of course, an executor who has already proved a will cannot be permitted to dispute its validity or contend for any entitlement at variance with the terms of the will properly construed. No such question as is presently before this court, concerning the suitability or present competence of the named co‑executor to obtain a double grant, was addressed or raised in Keepkie. The observations of the court in that case were obviously confined to the question of whether or not the objector had any sufficient standing to adopt a position which required further proof of the validity of the will which he had already proved.
The questions arising in the present case however, do not in any way question the validity or the effect of the will of this deceased. Nor is Mr Tsaknis adopting a position that Mr David Lilburne must, if anything, seek to prove his claim for double probate in solemn form of law. It is an easy but erroneous thing to assume, because of the desire to maintain the caveat and to oppose the application for a double grant, that the procedural consequences imply that Mr David Lilburne should seek to establish his claim in solemn form of law but neither does he suggest that to do so is necessary. Such a thought might be suggested by the more common procedure that where, on an initial application for a grant of probate in common form, a caveat against a grant is lodged by a person with a sufficient interest, the resulting procedure is that the applicant must then, if the caveat is not removed, prove the will in solemn form of law. But that is only because some issue may be raised about the validity of the will which is being propounded or because there may be other reasons, such as the greater finality of a grant in solemn form, that necessitate or require such a procedure – Wheatley v Edgar [2003] WASC 118 [17] – [19]. None of the parties has suggested that any such situation has arisen in the present case.
The basis for the objection, as I have already identified, is that Mr Tsaknis alleges that Mr David Lilburne is not a suitable or competent person to act as co‑trustee in view of the events which have occurred since the first grant of probate because, if he were to obtain such a grant the consequences would be adverse to the future due administration of the estate which, at present, Mr Tsaknis is bound to protect. Accordingly, the question which is before the court does not in any way impinge upon the validity or effect of the will of the deceased, which Mr Tsaknis unhesitatingly accepts. But, rather, Mr Tsaknis seeks to forestall what he considers would be real problems in the future administration of the estate if the double grant were to be made. In other words the objection raised does not concern the validity of the will, giving rise to any need for proof in solemn form or otherwise, but it questions the suitability of the applicant for the double grant which raises a separate question of competence. That question can be investigated and decided, not in any action for proof in solemn form but by the trial of a cause or causes directed to the issues which have emerged from the allegations advanced. This differentiates the present case markedly from the position which arose in Keepkie where, as noted, no reasons were advanced which suggested that the applicant for the double grant was not suitable to be appointed co‑trustee. Accordingly, I do not consider that that decision stands in the way of the relief being claimed by Mr Tsaknis in these present proceedings.

Passing over an executor or trustee

Under s 18 of the Supreme Court Act 1935 (WA) this court has voluntary and contentious probate jurisdiction and authority in relation to the granting or revoking of probate of wills and letters of administration of all real and personal estate whatsoever within Western Australia of any deceased person and all such powers and authorities in respect of such jurisdiction as were given to the court by the Administration Act 1903 (WA) and any other Act in force before then with authority to hear and determine all questions relating to testamentary causes and matters. Further, under s 23, the court has the authority conferred on Her Majesty's Courts at Westminster or by or before the Lord Chancellor or any Equity Judge in every proceeding as conferred by any Act of Parliament in force in England on 1 June 1829 and applicable to this State. The continuation of that jurisdiction in relation to the estate of deceased persons is confirmed by s 4 of the Administration Act.
Section 36 of the Administration Act recognises that where a person dies leaving a will but without having appointed an executor, or having appointed an executor who is not willing and competent to take probate or is resident out of the State, the court may appoint an administrator of the estate or any part of it and that the administration may be limited as the court thinks fit. This is a partial statutory recognition of the power of the court to pass over the appointment of a named executor in such cases but it is nevertheless part of the inherent or inherited jurisdiction of the court to pass over the appointment of a named executor, or a person entitled to apply for a grant of administration, in special circumstances. Section 36 of the Administration Act has some similarities to s 33 of the Court of Probate Act 1857 (Eng) and s 162 of the Supreme Court of Judicature (Consolidation) Act 1925 (Eng) now s 116 of the Supreme Court Act 1981 (Eng). The first two of those English statutes were examined by Rees J in Re Estate of Biggs (dec) [1966] 1 All ER 358; [1966] 2 WLR 536 where the court, for special reasons, decided that it was right to pass over the appointment as executor of the person named as the executor who had intermeddled with the estate but who had refused to apply for probate. Rees J also examined a number of other cases in which orders had been made passing over named executors.
In Re Estate of Crane [2005] SASC 379; (2005) 93 SASR 198, Besanko J undertook a detailed review of the jurisdiction of the English courts and of the English legislation which conferred such jurisdiction before proceeding to set out how the corresponding jurisdiction was conferred on the Supreme Court of South Australia even without express statutory provision to that effect. His Honour's exposition of this result for South Australia shows, sufficiently, how the same jurisdiction was acquired by this court.
There can be no doubt that this court does have power to pass over an executor who has been named in a will or a person with a right to apply for administration in exceptional circumstances and even in other circumstances. This frequently occurs, as in the present case, where one of several executors initially decides not to apply for a grant and instead is given leave to apply later. Nor was it suggested in the present case that there was no power of the court to pass over, either temporarily or permanently, the appointment of Mr David Lilburne as a co‑executor and co‑trustee although, as set out in what follows, many submissions were advanced as to why that should not be done. There are many circumstances in which a named executor will be passed over, at least temporarily, which do not in any way reflect adversely upon that person. So, for example, if the executor named is a minor, he or she will be passed over with liberty to apply upon attaining the age of majority.

A series of examples in which orders passing over a named executor might be made can be found in Tristram and Cootes: Probate Practice [25‑1082], [25.154] and these include cases where the person entitled is unfit [25.134]. So a sole executor in prison was passed over in Re the Estate of Drawmer (dec) (1913) 108 LT 732; where an executor had unsuccessfully propounded a forged will she was passed over in Re Paine's Estate (1916) 115 LT 935; an applicant for administration who has murdered the deceased will be passed over: In the Estate of Crippen [1911] P 108; and a spouse convicted of manslaughter will be passed over as executor: Re the Estate of S (dec) [1968] P 302 and Re Giles (dec) [1972] Ch 544.
The inherent jurisdiction of the court to pass over an applicant for probate who is a named executor has also been recognised in Re Hillston; Bar‑Mordecai v Rotman (Unreported, NSWSC, Library No 9804681, 4 September 1998); In the Estate of Shephard (dec) (1982) 29 SASR 247; and Re Estate of Crane [15] – [23].
In Williams, Mortimer and Sunnucks (supra) [26‑05] there is the following passage which, with respect, I adopt and apply:
An executor may be passed over on account of his bad character; attempts to avoid tax and to delay the proper investigation of the deceased's affairs and to waste time, his neglect of his duties, where he has intermeddled and refuses to take a grant, because of his absence abroad, imprisonment, ill‑health, unsoundness of mind, incompetence to take probate, disappearance; or where the estate is insolvent. (footnotes omitted)
And at [26‑19] dealing with objections to an applicant the learned author observes that if objections exist against an administrator the court will not compel an unobjectionable person to join in and take a grant with him: Bell v Timiswood (1812) 2 Phillim 22; 161 ER 1066 (A). Other examples of instances giving rise to an order passing over an applicant include incompatible interests of the applicant, bankruptcy or insolvency, severe ill‑health, but there are no limits to the grounds upon which an applicant may be passed over. Every case must depend upon its special facts with each case to be decided upon its own merits: Re Chapman [1903] P 192 - see generally Halsbury's Laws of England, Re‑issue vol 17(2) [181] and Halsbury's Laws of Australia, vol 24 [395‑2550].
In Bates v Messner (1967) 1 NSWR 638; (1967) 67 SR (NSW) 187 the named executor was passed over because appointing him would place the administration of the estate in jeopardy and in In re Hunter (dec) v Hunter [1932] NZLR 911 944 ‑ 955; [1932] CLR 317 the court observed that it may refuse to appoint anyone who would clearly misconduct himself or herself in the office of executor. In this State in Phelan v Booth (1941) 43 WALR 60 it was decided that where one of several named executors was passed over and probate granted to the other executors with leave reserved to the named executor so passed over, that person could still retain leave to apply if the obstacle to the grant to him were to be removed – so providing an example where there may be a temporary passing over even in a case of unfitness which might be expected eventually to be cured.
All of the discussions of this principle emphasise that it is a serious matter to pass over an applicant for a grant who is an executor named by the deceased because, presumably, the deceased has made his or her choice of executors with knowledge of the person concerned and such a person is generally entitled to a grant of probate: Marsh v Patten (1868) 7 SCR (NSW) Eq 18; and Porteous v Rinehart (1998) 19 WAR 495, 518, so that exclusion of such a person requires special or stringent grounds: Evans v Tyler (1849) 2 Rob Eccl 128; (1849) 163 ER 1266.
The testator's choice of a designated person to be executor or co‑executor implies that the deceased reposed trust in that person and considered him or her to have been suitable and capable of performing the duties required - Monty Financial Services Ltd v Delmo [1996] 1 VR 65; Estate of Rogers v Rogers [2009] WASC 358 [32]; and Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070 [9]. Especially in relation to family affairs where it might be suggested that there is, or might be, a conflict of interest between the executor named and the due administration of the estate, it is necessary to bear in mind that the deceased can be expected to have known of relationships and circumstances existing during his lifetime which might create or lead to any expectation of any such conflict of interest and, to have made the choice of appointee in the light of that knowledge. However, this approach cannot be taken in relation to conduct or circumstances which have arisen since the death of the testator or about matters which the testator could not have been expected to have had knowledge.
Some guidance as to the exercise of the power to pass over a named executor who is an applicant for probate can also be found in cases dealing with an executor who is not 'competent' within the meaning of s 36 of the Administration Act because of misconduct in relation to the estate before probate: Hunter v Hunter (supra); Re Hillston; Bar‑Mordecai v Rotman (supra); and Uniting Church in Australia Property Trust (NSW) v Millane [6] – [7]. The primary concern of the court will be to ensure that the estate will be duly and properly administered according to the terms of the will: In the Goods of Loveday [1900] P 154, 156; Bates v Messner (supra); Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80, 107 – 108, so that the dominant consideration is the welfare of the beneficiaries: Miller v Cameron (1936) 54 CLR 572; [1936] ALR 301, 580; and Elovalis v Elovalis [2008] WASCA 141 [30] ‑ [40].
The circumstances advanced by counsel on behalf of Mr Tsaknis to support his claim that Mr David Lilburne should not obtain a grant of double probate, at least not now, are that:
(a)there has been a substantial delay by Mr David Lilburne in applying for probate, doing so now nearly three years after the death of his father and about two and a half years after the first grant of probate to Mr Tsaknis;
(b)Mr David Lilburne is resident out of the jurisdiction and is likely to remain so meaning that he is beyond the immediate supervision of this court;
(c)because of the absence of disclosure of the extent of the indebtedness of Mr David Lilburne and his wife to the trustee company, Rampard, itself a debtor of the estate, and because of an alleged failure to disclose the existence or whereabouts of valuable maps, books and prints forming part of the assets of the estate, that there is conflict between interest and duty;
(d)the existence of animosity between Mr David Lilburne and Mr Tsaknis of a serious degree resulting in a breakdown in communication between them and alleged incapability which would prevent a working relationship of trust and confidence necessary for the remaining administration of the estate; and
(e)alleged unsuitability of Mr David Lilburne because of allegations that he has attempted to involve the estate in tax avoidance arrangements and his refusal to disclose the identity of a potential buyer for the maps, prints and books comprising The WA Collection and in relation to other items in the collection.
It is important to appreciate that Mr David Lilburne utterly rejects the allegations and criticisms which have been raised against him. In relation to the monies alleged to be owing to Rampard he submits that no actual conflict of interest arises because the debt is not to the estate but to the trustee company and, in any event, that his father must be taken to have known of the existence of such debt when providing that Mr David Lilburne was to be his co‑executor and without altering that choice by subsequent will or codicil. In relation to the concerns expressed by Mr Tsaknis about the commission charged and paid to Mr David Lilburne for the sale of The WA Collection, Mr David Lilburne points out that under cl 7 of the will any beneficiary might undertake work for the estate and be paid a reasonable remuneration for doing so. With respect to his residence in the USA, Mr David Lilburne points out that he has been resident there for many years and that this was well‑known to his father. Furthermore, most of the assets of the estate are in Western Australia and readily susceptible to the jurisdiction of the court – including his own entitlement to eventual distribution as one of four residuary beneficiaries.
So far as concerns the caveat which has been lodged by Mr Tsaknis under s 63 of the Administration Act against the grant of double probate, counsel for Mr David Lilburne submits that Mr Tsaknis does not have a sufficient interest to support such a caveat and that generally a proprietary interest is need to sustain such a procedure: In re Adcock [1904] 26 ALT 127; Re Finn [1942] VLR 125; [1947] ALR 167, 127 (Lowe J); Hart‑Roach v Public Trustee (Unreported, WASC, Library No 98044, 11 February 1998; and Non‑Contentious Probate Rules 1967 (WA), r 33.
He further submits that Mr Tsaknis has no such proprietary interest and therefore has no standing to support such a caveat which should, therefore, be discharged. There are certainly observations in the authorities cited that a personal interest of a tangible kind is necessary to support the lodgement of a caveat and r 33 of the Non‑Contentious Probate Rules does require the disclosure of a proprietary interest in the estate in the sense of an entitlement in distribution. Significantly, however, there is no reference to a requirement for such a proprietary interest in s 63 of the Administration Act which simply provides that any person may lodge a caveat against any application for probate or administration. Again, I consider that any apparent inconsistency between the requirements of the Non‑Contentious Probate Rules and the dicta of the cases mentioned, on the one hand, and the provisions of s 63 of the Act itself, on the other, disappears when it is realised that those cases, and the Non‑Contentious Probate Rules are addressed to applications for initial grants of probate or representation where a major question is the validity of the will or testament being propounded or the entitlement of some person in the case of a total, or partial, intestacy thus giving rise to the considerations already mentioned in Re Devoy; Fitzgerald & Pender v Fitzgerald about the need to prevent persons with no legitimate interest from intruding into or delaying or disrupting claims for probate or administration.
As earlier explained, the focus of controversy which has arisen in this estate now does not in any way concern the validity of the deceased's will, which has already been proved, but raises the question of the suitability of the applicant for double probate who, if successful, will be obliged to participate in the joint administration of the remaining unadministered estate with the existing trustee who, for the reasons which he alleges, claims that that would not be possible or would be to the disadvantage of the estate. These questions of competence and suitability are, as the authorities discussed have demonstrated, grounds which if established could result in the refusal of a grant of double probate either permanently or temporarily because of their potential effect on the due administration of the estate. Accordingly they constitute grounds why, in my view, a caveat against a double grant is justified. Although no authority on this point has been cited to me, this is an occasion in which I consider that a sufficient interest has been shown by Mr Tsaknis to support the caveat which has been lodged. The questions are whether or not the caveat should stand, and if so, how the issue raised should properly be resolved.
Similar issues were comprehensively examined by Windeyer J in Weinstock v Beck [2007] NSWSC 193; (2007) 1 ASTLR 156; and Uniting Church in Australia Property Trust (NSW) v Millane (supra). They have also been examined in the Re Estate of Crane (supra) where there has been a very comprehensive analysis of many of the applicable authorities.
In the light of the evidence I am satisfied that there are real arguable issues as to whether or not Mr David Lilburne is a suitable or competent person to obtain a double grant and become a co‑executor and co‑trustee of his late father's estate or whether he should be passed over permanently or temporarily for reasons, which Mr David Lilburne strongly disputes, that are advanced by Mr Tsaknis. It is not possible, nor have I been asked, to decide these questions finally in the present proceedings which, as I have already explained, rather raise the preliminary questions of whether or not there are grounds for Mr Tsaknis to oppose the application for the double grant and to maintain his caveat. This conclusion will mean that it will become necessary to conduct a trial of an issue or a cause as to whether or not Mr David Lilburne should receive a double grant or be passed over.
The bases for suggesting that he should be passed over are: alleged conflicts of interest; alleged hostility or animosity between him and the existing trustee and grantee Mr Tsaknis; alleged failure to disclose the full extent of estate assets thought to be in his possession; and alleged failure to provide relevant information concerning indebtedness by himself and his wife to a trustee company which is itself a debtor of the estate; unresolved disputes about commissions said to be payable in relation to the engagement of Mr David Lilburne for the sale of estate assets and issues concerning attempts at tax avoidance. Clearly there have been controversies on all these matters which have remained unresolved between Mr Tsaknis and Mr David Lilburne for some years although Mr David Lilburne maintains that, in a number of instances, he has provided the information sought or is willing to do so, or claims that he does not have possession of any significant assets of the estate.
The correspondence between Mr Tsaknis and Mr David Lilburne which is in evidence shows that there are grounds for Mr Tskanis to seek explanations as to the extent of estate assets in the possession or control of Mr David Lilburne and that no clear and unequivocal disclosures have been given by the latter as to the extent of estate assets or their proceeds in his possession. Similarly, it is clear that there has not been disclosure of the details of the indebtedness by Mr David Lilburne and his wife to Rampard. While it is true that this is not a debt due to the estate, the extent of the indebtedness affects the administration of the estate in the way earlier described and if Mr David Lilburne were to become a co‑executor and co‑trustee of the estate the fullest disclosure would be essential.
There are also reasons for concern that the future administration of this estate, likely to continue for several years and to involve difficult decisions about the development or disposal of the land at Baldivis, might be handicapped if there were not a satisfactory working relationship between the co‑executors and co‑trustees if Mr David Lilburne were to obtain a double grant. Whether all or any of those matters is sufficient to pass over Mr David Lilburne as an applicant for a double grant could only be determined after full examination of those issues in a cause designed to address and resolve them. Nevertheless I do consider that sufficient has been shown to justify an investigation of those issues and to raise the question as to whether or not Mr David Lilburne should be passed over in his application for a double grant.
For these reasons I consider that there should be a trial of an issue to determine whether or not Mr David Lilburne's application for a double grant should be passed over. It follows that I consider that directions should be made, substantially as sought, by Mr Tsaknis in the originating summons in CIV 2693 of 2009 to the effect that he, as the present sole executor and trustee may oppose the application for the double grant and apply for the revocation of the liberty reserved for Mr David Lilburne to apply for a grant and for incidental orders.
I consider that detailed directions are called for to identify the cause or causes to be tried and to direct that they be identified by pleadings or in some other way and that the cause, so identified, should be managed as a contentious issue in this court and proceed to trial under the supervision of a judge. At the hearing I indicated that I would hear from counsel as to whether this procedure should be followed in any of the existing proceedings or whether independent proceedings should be commenced to that effect although it is obviously desirable that existing proceedings, if possible, be adapted for this purpose. After receiving further submissions from counsel as to the forms of the orders and relief which should be granted I decided that the following orders should be made:

Conversion to a pleaded cause

1.The application of David Douglas Roland Lilburne for a grant of double probate of the will of Geoffrey Douglas Roland Lilburne (dec), and any application by any defendant joined in the proceedings seeking to revoke the leave granted to David Douglas Roland Lilburne on 5 October 2006 and for orders permanently or temporarily passing over David Douglas Roland Lilburne as executor, proceed on pleadings and be heard and determined as in an action.

Consolidation

2.Proceedings PRO 3817 of 2006; PRO 2222 of 2009 and CIV 2693 of 2009 be consolidated and be carried on as one matter.
3.PRO 3817 of 2006 be the leading matter.

Parties to the cause

4.David Douglas Roland Lilburne be the plaintiff in the claim.
5.Leo Anthony Tsaknis as executor and trustee of the estate of Geoffrey Douglas Roland Lilburne (dec) be joined as first defendant in the cause.
6.Patrick Geoffrey Lilburne be joined as second defendant in the cause.
7.Robert Arthur Lilburne be joined as third defendant in the cause.
8.Anne Marie Tsaknis be joined as fourth defendant in the cause.
9.Mary Lilburne be joined as fifth defendant in the cause.

Pleadings

10.The plaintiff David Douglas Roland Lilburne file and serve a statement of claim within 14 days.
11.The defendants each file and serve any defence and counterclaim within 14 days thereafter.
12.The plaintiff file and serve any replies and defences to counterclaims within 14 days thereafter.

Management of the cause

13.The cause should be subject to the supervision of the Honourable Justice EM Heenan or, in his absence, any other judge or registrar of this court.

Liberty to apply

14.The parties have liberty to apply.

In addition I consider special directions should be made on the originating summons under s 92 of the Trustees Act in CIV 2693 of 2009 and in that regard I order that:
1.pursuant to s 92 of the Trustees Act it is directed, subject to order 2 hereunder, that the plaintiff Leo Tsaknis would be justified in opposing the application of the first defendant for a grant of double probate of the will of Geoffrey Douglas Roland Lilburne (dec) ('the main proceedings') and in seeking revocation of the leave reserved by order of this court made on 5 October 2006 to the first defendant to apply for probate of the deceased's will;
2.the approval given by order 1 is to extend up to, but not beyond, the point at which the main proceedings are ready to be entered for trial. The plaintiff have liberty to make a further application for directions that the plaintiff is justified in continuing to oppose the first defendant's application the subject of the main proceedings and to continue to seek revocation of the leave reserved by order of this court granted on 5 October 2006 to the first defendant to apply for probate of the deceased's will at or before that point;
3.the parties file any written submissions on costs by 30 April 2010 and any answering submissions on costs on or before 7 May 2010;
4.the time in which any party who has a right of appeal then these orders may appeal be extended to 21 days from the publication of written reasons for these decisions;
5.each party have liberty to apply.

Issues arising over costs

Since 22 April 2010 written submissions have been filed by the parties in CIV 2693 of 2009 relating to the costs of the application under s 92 of the Trustees Act. Such submissions have been received from the executor and trustee Mr Tsaknis, from the first defendant Mr David Lilburne and from the plaintiff in reply.
There may also be some costs arising in the two probate applications PRO 3817 of 2006 and PRO 2222 of 2009 both for and because of the orders for consolidation and the directions relating to the trial of a cause over whether or not there should be a double grant in favour of Mr David Lilburne and whether or not his leave to apply for a double grant should be revoked. Neither of the two probate applications was finally disposed of and the orders which were made were, essentially, procedural calling for the programming and eventual determination of the issues arising. Accordingly, I consider that, in relation to the two probate proceedings the orders should be that, in each case, the costs of all parties be reserved.
In relation to CIV 2693 of 2009, the application for directions under s 92 of the Trustees Act, the submissions disclose that the parties are at issue whether or not Mr David Lilburne should be awarded his costs on a solicitor‑client basis at this stage. Mr Tsaknis, by his counsel, submits that his costs as executor and trustee and the costs of the second and third defendants of and incidental to the application should all be paid out of the estate on a solicitor and client basis.
Counsel for the first defendant Mr David Lilburne submits that each party's taxed costs should be paid out of the estate on a solicitor‑client basis and be taxed with notice of each taxation to be given to the other parties and to Mrs Anne Marie Tsaknis (as the other residuary beneficiary) and to Mrs Lilburne, the widow of the deceased. Although Mrs Lilburne has now been joined in the consolidated proceedings because she may be interested in the question of whether or not there should be a grant of double probate in favour of her son, Mr David Lilburne, she is not a residuary beneficiary and it is obvious that the net value of the estate, including the unadministered estate, is more than enough to ensure that her right of residence in the estate's half‑share of the family home at Nedlands and the conditional, substitute provisions for her in the will, are not likely to be disturbed or prejudiced in any way by the resolution of the remaining controversies in this litigation. Mrs Lilburne did not seek to appear or be heard on any of the applications which have been dealt with on these occasions and, therefore, I do not see that it is necessary for her to be given notice of any of the taxations of costs arising from the orders which I made on 22 April 2010 or will make as a result of these submissions on costs. Mrs Anne Marie Tsaknis, however, is in a different position because, as one of the residuary beneficiaries, any costs paid out of the estate as a result of these proceedings will have the effect of depleting, to some extent, the value of the residuary estate.
The real controversy in relation to these costs is that counsel for Mr Tsaknis submits that Mr David Lilburne should not be entitled to any costs from the estate either on an indemnity basis or at all and that, rather, his costs should be reserved or held over to be determined after the determination of the cause ordered to be tried in the consolidated proceedings, namely whether or not he should have a grant of double probate or whether his leave to apply for a double grant should be revoked. By contrast, counsel for Mr David Lilburne submits that he is entitled to have his costs of these proceedings paid on a solicitor‑client basis out of the estate immediately.
Section 97 of Trustees Act provides that the court may order such costs to be paid out of the assets or income of the trust estate. No question has been raised over whether or not these costs should be paid out of the corpus or from the income of the trust estate but nothing turns on this because, clearly, the costs will come out of the residuary estate and all the residuary beneficiaries are equally entitled to share in the residuary estate and the income of the estate which, so far as I can tell, will only come from the residuary estate.
That an applicant executor trustee seeking directions under s 92 of the Trustees Act should have his costs to be taxed paid out of the estate and on an indemnity basis is well‑established by authority. Indeed, that is directed by the Rules of the Supreme Court O 66 r 9(2) unless the applicant trustee has acted unreasonably or, if a trustee or personal representative, has in substance acted for his own benefit rather than for the benefit of the fund. Cases expressing and applying that principle include Re Beddoe; Downes v Cottam [1893] 1 Ch 547, 558; McDonald v Horn [1995] 1 All ER 961; [1995] ICR, 685, 970; and the Macedonian Orthodox Community Church case (supra) [71].
Counsel for Mr David Lilburne submits that his client was a necessary party to be joined on the application for directions and that it was necessary for him to appear before the court on the application – s 92(2) with the result that having appeared and been represented on the application he became bound by the direction given: Re Grose (dec) [1949] SASR 55 [60] (Mayo J). He further submits that, as I have earlier acknowledged, when the court exercises its jurisdiction to give directions pursuant to s 92 the court is engaged in determining what ought to be done in the best interests of the trust estate and not in determining the rights of adversarial parties: Marley v Mutual Security Merchant Bank & Trust Co Ltd (201) (PC). So, by analogy with the position in proceedings taken for due administration of an estate, counsel for Mr David Lilburne submits that the costs of all parties properly and necessarily before the court should be met out of the estate: Elders Trustee & Executor Co Ltd v Eastor [1963] WAR 36 [40] (Hale J). Furthermore, there is authority for the approach that when an application to a court is made by a trustee for directions the costs of the parties other than the executor or trustee are normally ordered to be paid out of the trust estate: McDonald v Horn (970); Re Buckton [1907] 2 Ch 406, 414; Marley v Mutual Security Merchant Bank & Trust Co Ltd (supra) (210); and Campbell v Glasgow [1919] HCA 57; (1919) 27 CLR 31.
Generally speaking, counsel for Mr Tsaknis accepts the proposition that the costs of the beneficiary on an application brought by a trustee for directions, where reasonably and properly incurred, may ordinarily be viewed as necessarily incurred for the benefit of the trust estate and so be ordered to be paid out of the trust estate.
However, in the present case the counsel for Mr Tsaknis submits that this application under s 92, and the orders made are not of a nature that will lead to, and have not led to, the determination of any substantive rights but, rather, are a part of the necessary response by the existing executor and trustee to what is, in effect, a hostile claim by Mr David Lilburne to obtain a grant of double probate - the effect of which would be to jeopardise the administration of the estate. Because of that, counsel for the applicant has submitted that situation is more analogous to that of an adverse claim by beneficiary against a trustee in which case costs should ordinarily follow the event: Re Buckton (supra) (415); McDonald v Horn (supra) (970 – 971). The applicant's submissions are to the effect that the first defendant's conduct should be regarded as being directed towards the advancement of his private interests rather than the interests of the estate as a whole and its due administration and the events which have led to Mr David Lilburne applying for double probate arise directly from: his failure to assist in the due administration of the estate; to disclose the existence of estate assets; to provide information about the state of indebtedness of himself and his wife to Rampard; and his dissatisfaction at the refusal of the trustee to respond to invitations to participate in what have been characterised as tax evasion arrangements - all of which reflect adversely upon his suitability to be a joint executor and trustee.
Accordingly, the applicant submits that Mr David Lilburne's claim for costs should be adjourned and the question of those costs reserved until further order and, preferably, until after there has been a final determination of the cause over whether or not Mr David Lilburne should receive a double grant. In so far as Mr David Lilburne's submissions advance the proposition that he was, as a beneficiary, a proper party to be joined and be heard on the application for directions under s 92 of the Trustees Act, counsel for Mr Tsaknis does not in any way contest those propositions but submits that they do not in any way conclude the question of his entitlement to costs. The reason why Mr Tsaknis brought the application for directions under s 92 in the first place was, so it was submitted and cannot be doubted, because Mr David Lilburne brought his application for a double grant in circumstances which the trustee considered himself obliged to oppose the application and seek directions of the court enabling him to do so. In short, the submissions on behalf of Mr Tsaknis advance the proposition that the whole question of costs for Mr David Lilburne should be seen as depending upon whether or not he is now entitled to a grant of double probate because, if not, there would have been no necessity for the application for directions under s 92 at all.
I acknowledge that there is some plausibility in these submissions on behalf of the existing executor and trustee but, inevitably, they are infused by the sentiment that, because of the alleged circumstances, Mr David Lilburne should not have applied at all for a grant of double probate of his father's will. No findings in relation to that matter have yet been made and a cause to determine the allegations advancing that contention remains to be heard so at this point there can be no acceptance that those allegations have been, or will be, established.
That leaves the question of whether or not the question of Mr David Lilburne's costs should be postponed until after the eventual disposition of the cause which I have ordered to be tried. However, in applying for a grant of double probate as he has done Mr David Lilburne has done nothing more than he was expressly granted leave to do by this court in the grant of probate in common form made on 5 October 2006. If, in exercising that undoubted right Mr David Lilburne has been met by objections that, because of his alleged conduct, he is no longer suitable to be so appointed, the question of his suitability and entitlement for appointment will be determined in proceedings designed for that purpose – as I have ordered. When those proceedings are determined issues of costs will, no doubt, arise. They will need to be decided in the exercise of the discretion of the judge determining the cause according to established principles and in the light of the outcome of that cause. At this stage, however, Mr David Lilburne is exercising a right to apply for double probate, granted to him by the court, and whether his motives be good or ill, and whether the application be eventually successful or not, the mere initiation of proceedings pursuant to that right has led to the need for Mr Tsaknis to seek directions of the court. That application for directions has led, inevitably and necessarily, to Mr David Lilburne being joined, appearing and being heard on the application.
Accordingly, I am satisfied that the ordinary principles apply and that he should have his costs on a solicitor‑client basis taxed and paid out of the estate notwithstanding that the determination of the costs of the eventual determination of the cause ordered to be tried may involve other considerations. It is not to be forgotten that he was named by his father in the will as a co‑executor and trustee and has been granted leave to apply when probate was first granted so that there is, therefore, no ground for suggesting that his application for a double grant is baseless or without any prima facie entitlement. That it has given rise to the contentious issues which I have examined means that significant and important questions have arisen in the course of the administration of the estate necessitating the application made by the existing trustee under s 92 and in respect of which, at least at this stage, there is no reason to depart from the conventional principles that all beneficiaries properly and necessarily appearing on the application for directions should have their costs out of the estate.
In the circumstances, therefore, I consider that the orders for costs which should be made are as follows:
1.Costs of all parties to probate applications PRO 3817 of 2006 and PRO 2222 of 2009, up to and including the orders of 22 April 2009 be reserved.
2.Originating summons CIV 2693 of 2009:
(a)the costs of the applicant executor and trustee and of each of the beneficiaries being the first, second and third defendants, including all reserved costs, if any, be taxed on a solicitor‑client basis and be paid out of the estate of the deceased;
(b)notice of the taxations be given to each of the plaintiff, first, second and third defendants and to the remaining residuary beneficiary Mrs Anne Marie Tsaknis and each of those persons be at liberty to appear and be heard on each of the taxations.
There will be orders accordingly.