SUCCESSION — Executors and trustees — Duties – Liability to account – Wilful default – Held: Plaintiff beneficiaries’ claims for the taking of an account on wilful default basis, or equitable compensation in respect of alleged wilful defaults, dismissed.
SUCCESSION – Construction, validity and operation of clause in will excluding liability of executor for loss – Where defendant executor was the testator’s solicitor who drafted the will - Whether clause void or unenforceable by reason of presumed undue influence - Held: Presumption of undue influence does not apply in probate context – Whether liability for “loss” in the context of the exclusion clause includes liability to account on a wilful default basis – Held: yes – Whether exclusion clause is void on the basis that it is repugnant or contrary to public policy because it excludes liability for breach of executor’s irreducible core obligations – Held: No, the clause, properly construed, does not exclude liability for breach of irreducible core obligations of honesty and good faith.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Turnbull v Fleming [2024] NSWSC 918
Case
[2024] NSWSC 918
Decision Date
CaseChat Overview and Summary
The case of Turnbull v Fleming involved the plaintiff beneficiaries, Turnbull, who sought an accounting from the defendant executor, Fleming, as well as equitable compensation for alleged breaches of duty. Fleming was the solicitor of the deceased, and had drafted the will that appointed him as executor. The dispute arose from the beneficiaries' claims that Fleming had acted in wilful default and sought to hold him accountable under these principles. Additionally, the beneficiaries argued that a clause in the will, which excluded the executor from liability for loss, was void due to presumed undue influence and public policy considerations.
The primary legal issues before the court were whether the clause excluding the executor from liability for loss was enforceable and whether the clause was void due to undue influence or public policy considerations. The court had to determine if the clause could exclude liability for breaches of the executor's core duties of honesty and good faith, and whether the clause could effectively exclude liability for losses arising from wilful defaults. The court also had to address whether the presumption of undue influence applied in the context of a clause in a will drafted by the executor themselves.
The court held that the presumption of undue influence did not apply in the context of a will clause drafted by the executor. The court found that the clause in the will was not repugnant to public policy and did not exclude liability for breaches of the executor's irreducible core obligations. The court held that the clause was properly construed to include liability for losses arising from wilful defaults. Accordingly, the plaintiff beneficiaries' claims for an accounting on a wilful default basis and for equitable compensation were dismissed. The court concluded that the exclusion clause was valid and enforceable, and that the executor was not liable for the losses claimed by the beneficiaries.