Tyler v Public Trustee of Tasmania

[2011] TASSC 13

[2011] TASSC 13

COURT:                  SUPREME COURT OF TASMANIA

CITATION:              In the Matters of the Estate of Webster;

Tyler v Public Trustee of Tasmania [2011] TASSC 13

PARTIES:  IN THE MATTERS OF THE ESTATE OF
  WEBSTER, Peter John
  WEBSTER, Ernest Alfred
  WEBSTER, Friederica Anna
  TYLER, Bevan John
  v
  PUBLIC TRUSTEE OF TASMANIA

FILE NO/S:  238/2011
DELIVERED ON:  30 March 2011
DELIVERED AT:  Hobart
HEARING DATE:  21, 22 March 2011
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Succession – Executors and administrators – Devolution of office and estate – Appointment of Public Trustee by executor of last surviving executor.

Administration and Probate Act 1935 (Tas), s10(1).
Public Trustee Act 1930 (Tas), s15(1).
Aust Dig Succession [256]

REPRESENTATION:

Counsel:
           Applicant:  In person
           Respondent:  C J Gunson
Solicitors:
           Applicant:  In person
           Respondent:  In person

Judgment Number:  [2011] TASSC 13
Number of paragraphs:  27

Serial No 13/2011
File No 238/2011

IN THE MATTERS OF THE ESTATE OF PETER JOHN WEBSTER,
ERNEST ALFRED WEBSTER AND FRIEDERICA ANNA WEBSTER
BEVAN JOHN TYLER v PUBLIC TRUSTEE OF TASMANIA

REASONS FOR JUDGMENT  CRAWFORD CJ

30 March 2011

1. By an originating application, Mr Tyler applied for a number of orders relating to the involvement of the Public Trustee in the estate of Ernest Alfred Webster deceased.  It purports to be performing the role of executor of the deceased's will.  He sought to have it removed.  He also sought orders transferring the management of the estate to himself together with the personal estate of the deceased.  He sought other orders as well. 

The role of the Public Trustee in the estate of Ernest Alfred Webster

1. Facts that are stated hereafter have been found from evidence put before me by the parties.

1. Ernest died on 19 September 2003, aged 94.  He left surviving him his wife, Friederica, and his son, Peter. 

1. On 1 December 2005, probate of Ernest's will was granted by the Court to Friederica and Peter.  The will consisted of two pages, although some confusion was created by the fact that its two pages were numbered 2 and 3 respectively.  However, the first page, at the bottom, was described as "Page One" and that description was followed by the signatures of the testator and the two witnesses. 

1. The will may be described as a homemade will.  It was dated 19 August 2002.  By clause (1), the testator purported to "cancel all previous Wills and all Codicils to those Wills and any instructions pertaining thereto".  By clause (2) (first appearing), Ernest appointed Friederica "as Principle [sic] Trustee and Executor to this Will", and Peter as "Residual Trustee and Executor of My Will". 

1. By clause (2) (second appearing), the testator directed his trustees to hold the whole of the estate on trust for distribution to persons for whom he made provision.  In subclauses (f), (g) and (i), he made specific bequests.  In subclauses (b), (c) and (d), he provided that Friederica had the use, occupation and enjoyment of two houses at 8 and 10 Higson Street, Midway Point until her death.  However, in the case of 10 Higson Street only, he also provided that she had the power to sell it and to use the proceeds of sale, or any part of them, for her own purposes beneficially.

1. The provisions for both Friederica and Peter vested on the date of death of Ernest.  They only had to survive him to be entitled. 

1. Peter died on 11 December 2005.  Upon that event, Friederica became the sole executor of Ernest's estate.  Administration and Probate Act 1935, s10(1). I received no evidence of what occurred with Peter's estate following his death. However, I am aware of material in the file to which Mr Tyler referred and which explains his interest in this case, although at the hearing he did not formally seek to have any of that material admitted into evidence. It includes Letters of Administration with the will annexed of Peter's estate that were granted by the Court to Mr Tyler on 19 January 2010. Peter's will made three specific bequests and the residue was left to a woman in the Philippines. Mr Tyler referred to her as Peter's fiancée.

1. On 2 February 2006, the Guardianship and Administration Board made an emergency order appointing the Public Trustee as Friederica's administrator under the Guardianship and Administration Act 1995. On 2 March 2006, the Board made another such order. On 30 March 2006, the Board made an order appointing the Public Trustee as the administrator of her estate until 29 March 2009. It also ordered that the administrator's powers and duties be those conferred by Div4 of Pt7 of the Act. By s56(2)(t), those powers included the power to "exercise any power, including a power to consent, vested in the represented person, whether beneficially, or as a trustee, or otherwise". By subs(5), any actions taken by the administrator under that power had effect as if they were taken by the represented person and the represented person had the legal capacity to take them.

1. In its capacity as Friederica's administrator, the Public Trustee assumed the role of executor of Ernest's will and commenced to administer his estate.  At that time, Friederica was living at 8 Higson Street and 10 Higson Street was rented out. 

1. As administrator of Friederica, the Public Trustee applied to the Court on her behalf for a greater provision out of Ernest's estate pursuant to the Testators Family Maintenance Act 1992, and applied to the Court for an extension of time in which to make that application.  Both applications were filed on 11 July 2006.  At the same time, it also applied for orders under the Wills Act 1992, ss45 and 46(1), to validate the provision in Ernest's will in her favour, notwithstanding that she had witnessed his will. 

1. However, at about that time, the Public Trustee recognised that it had an irreconcilable conflict of interest in assuming the role of executor of Ernest's estate on behalf of Friederica, and making claims against the estate on her behalf.  For that reason, it made an application to the Board for directions and orders.

1. On 19 September 2006, the Board ordered that the Public Guardian be substituted for the Public Trustee as Friederica's administrator and that its powers and duties be those conferred by Div4 of Pt7 (which included s56) of the Guardianship and Administration Act.  The Board directed the Public Guardian "to appoint the Public Trustee as the Executor of the will of the late Ernest Webster" and "to retain the services of the Public Trustee as its agent for duties associated with administering the represented person's estate except for the purposes of giving instructions in legal proceedings".

1. The source of the power of the Public Guardian as Friederica's administrator to appoint the Public Trustee as the executor of Ernest's will in place of Friederica was in the Guardianship and Administration Act, s56(2)(t) and (5), to which I referred earlier, and the Public Trustee Act 1930, s15(1). Under the last mentioned provision, Friederica, in her capacity as executor of Ernest's will, had the power to appoint the Public Trustee to act as executor (or administrator) in her place. As her administrator, the Public Guardian had power to exercise that power of appointment on her behalf, under s56(2)(t).

1. Purportedly pursuant to that power, on 3 October 2006, the Public Guardian appointed the Public Trustee "to act as administrator of the Estate of the late Ernest Webster, in place of Friederica Webster".  Through an oversight, the appointment was incorrectly expressed to be to the role of administrator rather than to the role of executor.  At the same time, the Public Guardian appointed the Public Trustee to be her agent for the purposes of the management of Friederica's estate, except for the purposes of giving instructions in legal proceedings.

1. In about February 2007, Friederica moved out of 8 Higson Street and took up residence in a fulltime care facility.  Thereafter 8 Higson Street was rented out.  However, by July 2009, both houses at 8 and 10 Higson Street had become vacant and the Public Trustee had determined that they could not be tenanted any further because they were not in a tenantable condition due to poor repair and insufficient funds in Ernest's estate to pay for the necessary work.  Both houses remain unoccupied.

1. On 24 June 2009, Friederica died and the Public Trustee ceased to have any powers it may have had to act as the executor of Ernest's will.  The executor of Friederica's estate is the Public Trust of New Zealand.  By virtue of the Administration and Probate Act, s10(1), the Public Trust became the executor of Ernest's will in its capacity as the executor of the last surviving executor appointed by Ernest's will and to whom probate was originally granted. Exercising the power given by the Public Trustee Act, s15(1), on 8 July 2010, the Public Trust appointed the Public Trustee to be the sole executor of Ernest's estate and the Public Trustee assumed the management of the estate in that capacity. It is the lawful executor of the estate.

1. Accordingly, I hold that the Public Trustee is the executor of Ernest's will and, subject to any order the Court might have jurisdiction to make, the Public Trustee is entitled to continue in that role.

Does Mr Tyler's argument prevail?

1. Ernest had an earlier will dated 11 April 1997.  I mentioned that by clause (1) of his will of 19 August 2002, he purported to cancel all previous wills and codicils.  That had the effect of revoking the earlier will. 

1. There is also another document dated 19 August 2002.  It consists of one page and Mr Tyler relies on it.  It is headed "Statement by Ernest Alfred Webster".  It does not purport to be a will in the way the other document of that date does, for it contains no provision by which he distributed any of his estate.  However, strangely, by clause (1) of the statement, Ernest made the same provision as in clause (1) of his will of the same date.  In other words, he purported to "cancel all previous Wills and all Codicils to those Wills and any instructions pertaining thereto".  That provision was signed by him and the signatures of two witnesses were also appended, neither of whom were Friederica, which was not the case with the will.  By clause (2) of the statement, Ernest purported to appoint Friederica and Peter as his executors and trustees in similar, but not identical, terms to such an appointment in the will of that date.  Having regard to clauses (1) and (2) in the will, it is impossible to understand the additional purposes of clauses (1) and (2) in the statement.

1. However, there was an additional clause in the statement, clause (3).  By it, Ernest provided that "the Public Trustee of Tasmania is excused from acting on my behalf in any Matter whatsoever as of this date.  I hereby, Direct the Public Trustee to Return to myself, any and all Documents held by them pertaining to My Previous Will and any other business or instruction they may have had."

1. Immediately following clause (3) of the statement appear the signatures of Ernest and of three witnesses, two of whom were the witnesses to Ernest's signature after clause (1) and the other was Friederica.

1. It was Mr Tyler's submission that the effect of clause (3) of the statement is that the Public Trustee is prohibited from being an executor of Ernest's will. I reject that submission for the following reasons.  Ernest only purported to excuse the Public Trustee from being the executor of his will as of the date of the statement.  He did not purport to excuse the Public Trustee from being the executor of his will at all times thereafter.  Further, in the context in which the word was used, as a verb, the ordinary meaning of "excuse" is to release from an obligation (Macquarie Dictionary (1992)), or release from a task, duty or obligation (The New Shorter Oxford English Dictionary (1993)).  Its meaning is not to prohibit a person from performing a task, duty or obligation.

1. In my view, all Ernest did on 19 August 2002 concerning the executors of his will was to provide that the Public Trustee was no longer to be the executor and to appoint Friederica and Peter as the executors.  Nothing was done by Ernest that prevented the Public Trustee from later becoming the executor of his will in some other way, for example, by being the executor of the last surviving executor of Ernest (Administration and Probate Act, s10(1)), or by being appointed to be the executor by the executor of Ernest's will (Public Trustee Act, s15(1)). It was in the second of those ways that the Public Trustee was appointed to be the executor by the Public Trust of New Zealand.

1. It was also argued by Mr Tyler that the Public Trustee should be removed as executor and administrator of Ernest's estate because the Public Trustee is destroying the estate and is incompetent in its management of it.  He claimed that a child could do it better.  However, he placed no evidence before the Court to support those allegations, and for that reason I can make no relevant finding of fact. 

1. Mr Tyler asserted from the bar table that his heart was in the estate and that Peter told him on his deathbed to care for his estate.  That may be so, but it provides him with no justification in law for the orders he seeks concerning Ernest's estate.  In fact, in response to my request that he explain why, as a matter of law, he should be controlling Ernest's estate instead of the Public Trustee, he confessed to being unable to do so.

Conclusion

1. Mr Tyler has failed to maintain a case for any of the orders he seeks.  For that reason the originating application, as amended, will be dismissed.