Walter v Hasslinger
[2022] VSC 460
•26 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LISTS
S ECI 2021 04467
| MICHAEL JOHN WALTER | Plaintiff |
| v | |
| ALBAN HORST HASSLINGER & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23, 25 August 2022 |
DATE OF JUDGMENT: | 26 August 2022 |
CASE MAY BE CITED AS: | Walter v Hasslinger & Ors |
MEDIUM NEUTRAL CITATION: | [2022] VSC 460 |
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ADMINISTRATION AND PROBATE – Application by one of two executors to be discharged from office – Costs of application – Appointment of administrator and trustee in place of discharged executor – Trustee companies and other independent persons declining to accept appointment – Whether appointment of life tenant of principal estate asset as trustee and co-executor appropriate – Administration and Probate Act 1958 s 34; Trustee Act 1958 s 48; Settled Land Act 1958 s 30(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W F Rimmer | Harry M Hearn |
| For the First Defendant and For the Second Defendant For the Fourth and Fifth Defendants | Ms C M Symons Mr P Thompson (Solicitor) | Marshalls & Dent &Wilmoth McDonald, Slater & Lay No appearance |
HIS HONOUR:
The plaintiff and the first defendant are the executors and trustees of the will and estate of Alban Richard Hasslinger deceased (‘the deceased’). The plaintiff makes application under s 34(1) of the Administration of Probate Act 1958 that he be discharged as an executor of the will and estate of the deceased, and that the third defendant, or such other person who may be appropriate, be appointed as trustee and executor in substitution for himself.
That application by the plaintiff is not opposed. For the reasons which follow, I consider it is appropriate to grant the application. However, there are two other issues which remain for determination. The first issue concerns the identity of the person or persons who should be appointed in substitution for the plaintiff. The second issue concerns whether the plaintiff’s costs of this application should be paid out of the estate.
Background circumstances
The deceased died on 30 November 2013 leaving a will dated 3 September 1997, a codicil dated 8 June 2008, and a second codicil dated 29 September 2013. By the will, the deceased nominated Karl Heinz Stepp and the first defendant as the executors of his estate. By the first codicil, the deceased appointed the plaintiff as an executor in place of Mr Stepp, with the first defendant remaining as a co- executor. Probate of the will and codicils of the deceased was granted to the first defendant and the plaintiff on 22 August 2016. The delay in the probate application was apparently due to ongoing family disputes, and it also resulted from the fact that the first codicil was executed in Germany, which raised some issues as to its validity as a testamentary document in Victoria.
By the terms of the will and codicils, the deceased, in effect, bequeathed and devised his estate to his four sons, namely, the first defendant, the second defendant, the fourth defendant and the fifth defendant, his de facto partner, the third defendant, and his three adult siblings in Germany.
The inventory of assets and liabilities of the deceased, filed in the application for probate, declared assets the total value of which was $3,153,703.60, with total liabilities of $145,239.02. The assets comprised the following:
·The deceased’s home at 9 Sowter Court, Donvale (‘the Donvale property’), valued at $1,225,000;
·personal estate in Victoria valued at $1,630,864.17;
·personal estate outside Victoria being $297,839.
In October 2016, State Trustees Ltd (which had been appointed as the administrator of the fourth and fifth defendants, due to their intellectual and physical disabilities) commenced proceedings pursuant to Part 4 of the Administration and Probate Act1958 seeking further provision for the fourth and fifth defendants. Subsequently, in December 2016 the third defendant issued separate proceedings pursuant to Part 4 seeking further provision.
After a lengthy trial in February and March 2019, Associate Justice Daly upheld the claims in each of the two proceedings.[1] Her Honour made a complex set of orders, the substantive effect of which was as follows:
[1]Schmidt (a pseudonym) v Walter; Wagner (a pseudonym) v Walter [2019] VSC 385.
(1) The Donvale property be held on trust by the executors and trustees of the estate (or such other trustees being not fewer than two in number as may be appointed from time to time).
(2) The third defendant be permitted to have the use and occupation of the Donvale property for her life, subject to her paying all rates, taxes and other outgoings from time to time in connection with the property.
(3) The trustees must at any time at the direction of the third defendant sell the property.
(4) If the property is sold before the death of the third defendant, the net proceeds of the sale shall be applied as follows:
As to 50 per cent, to the purchase of a suitable property for the third defendant for her life; a further 20 per cent to the State Trustees to be held on trust for the benefit of the fourth and fifth defendants; a further 20 per cent to the first defendant; and the remaining 10 per cent to the second defendant.
(5) The orders made specific provision for the distribution, on the death of the third defendant, of the proceeds of sale of any property purchased by her.
(6) The orders further directed that upon the death of the fourth and fifth defendants, the balance of the trust property held for their benefit by State Trustees Ltd be divided in equal shares between the surviving children of the deceased.
The application to discharge as executor
In his affidavit in support of the application to be discharged as an executor, the plaintiff deposed that there had been constant delays, and a continuing refusal, by the first defendant, to provide to him information and access to estate assets in order to enable the administration of the estate to be conducted in a timely manner. In response, the first defendant has filed an affidavit in which he has contended that the delays in the administration of the estate have been due to the fault of the plaintiff, and not himself.
It is not necessary for me to determine the merits of that dispute. It is sufficient to note that there has been, and continues to be, some difficulty between the plaintiff and the first defendant concerning the administration of the estate. Furthermore, the plaintiff is 78 years of age. He has suffered some ill health. Although he is a practising chartered accountant operating a small practice, he is now considering retirement.
The application for discharge as executor is made under s 34(1)(b) of the Administration and Probate Act which provides that, upon application by an executor for discharge, the Court may make such an order upon such terms and conditions as the Court thinks fit.
In respect of such an application, McMillan J stated in Re Flavel; An application by Lipshut:
Ultimately, the decision to discharge a personal representative depends on the facts and circumstances of the particular case and is a determination to be made at the discretion of the Court after consideration of the interests of the beneficiaries, the security of the estate property, the efficient and satisfactory exercise of the trusts and a faithful and sound exercise of the powers by an executor or trustee.[2]
[2][2018] VSC 228, [27].
The application by the plaintiff is not opposed. In view of the age and circumstances of the plaintiff, the fact that the administration of the estate will, most probably, continue for some time, and the fact that there have been difficulties between the plaintiff and the first defendant in the execution of their roles as executors and trustees,[3] it is appropriate to accede to the application, and I shall make an order to that effect. I shall also make an appropriate order permitting the plaintiff to retire as a trustee of the estate.[4]
[3]Cf Mann v Grantham [2004] VSC 156, [20] (Byrne J).
[4]Ibid [20]–[21].
The plaintiff’s costs
As mentioned, the plaintiff also seeks an order that his costs of the application be paid out of the estate. The first defendant opposes the making of such an order, on the grounds that there have been shortcomings in the performance by the plaintiff of his role as executor and trustee of the estate of the deceased.
It is not appropriate, or necessary, to examine in detail the conflicting evidence contained in the affidavits of the plaintiff and the first defendant concerning those issues. A short summary will suffice.
In his affidavit in support of the application, the plaintiff deposed that, during his time as executor of the estate, the first defendant has: refused to allow him to operate in the estate accounts; refused to release funds to the estate from the Hasslinger Family Trust; refused to pay part of the official fees; and refused to provide details of financial transactions of the family trust and of Timmid Pty Ltd (in which the estate owns some 60,000 shares). The plaintiff has stated that the first defendant also insisted on unilaterally instructing the former solicitors, who were acting for the estate, and advised the solicitors, by email dated 1 May 2000, that they were not to undertake any further work on behalf of the estate. In response to that email, the solicitors sent a letter to the first defendant outlining the steps which were required to be undertaken to advance the administration of the estate. The first defendant failed to respond to that email. In addition, according to the plaintiff, the first defendant has failed to respond to attempts by him to contact the first defendant by telephone, text message and email correspondence.
In response, the first defendant has deposed that, on a number of occasions, the plaintiff made decisions without his input or involvement, and carried out work on behalf of the estate, that was unnecessary or incorrect. In particular, according to the first defendant, the inventory of assets and liabilities prepared by the plaintiff was inaccurate and did not reflect the true value of the estate of the deceased, which affected the outcome of the two claims made against the estate under Part 4 of the Administration of Probate Act. In addition, the plaintiff: failed to include the first defendant in the preparation of material in defending the Part 4 claims; failed to support the first defendant in requesting a taxation of the legal costs incurred by the estate through its retainer of its solicitors; and failed to respond to requests made by the first defendant for the provision of critical documents.
In turn, the plaintiff filed a further affidavit in which he deposed that the draft inventory of assets and liabilities, prepared by the solicitors for the estate, was based on material that had been provided by the first defendant to the solicitors. The first defendant and the plaintiff swore a joint affidavit of executors in support of the application for probate, in which they both deposed that the deceased’s assets and liabilities were those contained in the inventory that was filed with the affidavit. In addition, the first defendant subsequently swore a further affidavit on behalf of the estate in the Part 4 applications specifically listing the assets and liabilities, as at the date of the death of the deceased, as those which were listed in the inventory of assets and liabilities.
Rule 63.26 of the Supreme Court (General Civil Procedure) Rules 2015 provides that, unless the Court otherwise orders, a party who sues or is sued as trustee shall be entitled to the costs of the proceeding out of the fund held by the trustee. Rule 63.01 provides that ‘a trustee’ includes an executor of a will and the administrator of the estate of the deceased person.
Ordinarily, in an application for costs in a proceeding such as the present, it is not appropriate to embark on a detailed examination of the allegations and cross-allegations made by the parties concerning the administration of the estate.[5] It is clear, on any view, that differences have arisen in the administration of the estate, such that it is appropriate that the plaintiff withdraw from his position as executor and trustee of it. In addition, as already discussed, the plaintiff is elderly, he has some ill health, and he is considering retirement from professional practice. In those circumstances, where the application is based on appropriate grounds, the plaintiff, ordinarily, should be entitled to be paid the costs of the application from the estate.[6]
[5] Cf Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622, 624 (McHugh J).
[6]Attorney- General v Murdoch (1856) 2 K&J 571, 574; 69 ER 910,911 (Page Wood VC).
In respect of the issues raised by the first defendant, it is not possible to decide the merits of the allegations and cross-allegations made by the parties. It would appear that the first defendant was very much a party to the compilation of the list of assets and liabilities of the estate that was the basis of the inventory of assets and liabilities filed in respect of the probate application. As the plaintiff has pointed out, the first defendant, in two separate affidavits, deposed to the accuracy of that inventory. Further and in any event, the effect of any such inaccuracy, on the outcome of the Part 4 proceedings, is, at best, speculative.
In any event, taken at their highest, the allegations made by the first defendant are not such, in my view, as to disentitle the plaintiff from the ordinary order that would be made in his favour for payment of the costs of the current application from the assets of the estate.[7] I shall therefore make an order to that effect.
[7]Cotterell v Stratton (1872) LR 8 Ch 295, 302 (Lord Selborne LC); O’Brien v Tracy (1907) 24 WN (NSW) 44, 47 (Street J).
Replacement of plaintiff as executor and trustee
The question of the appointment of an appropriate person or corporation as executor and trustee, in place of the plaintiff, is not without some difficulty.
Section 34(1) of the Administration and Probate Act provides that the Court, on ordering the discharge of an executor or administrator of an estate, may appoint a proper person or trustee company as administrator in place of that executor or administrator. In similar terms, s 48(1) of the Trustee Act 1958 provides that the Court may make an order appointing a new trustee in substitution for (or in addition to) an existing trustee or trustees.
In support of his application, the plaintiff’s solicitor approached two reputable and experienced trustee companies, Equity Trustees Ltd and Australian Unity Trustees seeking their consent to be appointed as co-executor and co-trustee of the estate with the first defendant. Both of those trustee companies in turn declined to accept that appointment. In response to an enquiry made of the parties before the hearing of the application, the plaintiff also further advised the Court that he had also approached Perpetual Trustees, which had declined to accept nomination for the appointment as executor. In addition, he approached a particular senior solicitor, who previously had been appointed by this Court on a number of occasions as a replacement executor or trustee, but he, too, had declined to accept the appointment. The plaintiff’s solicitor (who himself is very experienced in this area) observed that he would expect a similar response from any other senior practitioner once that person was apprised of the circumstances relating to the estate.
The question of the possible appointment of State Trustees Ltd as an executor and trustee, pursuant to s 5 of the State Trustees (State Owned Company) Act 1994 (‘the State Trustees Act’), was also raised in the lead up to the oral hearing of this application. That corporation has responded that it would be prepared to act as sole administrator and trustee, but it would not be prepared to accept an appointment as co-executor and co-trustee with the first defendant.
In response to the application by the plaintiff to be discharged as executor and trustee, the first defendant proposed that the third defendant be appointed as administrator and trustee of the estate in substitution for the plaintiff. For that purpose, the third defendant swore an affidavit setting out her personal circumstances, including her age, and her qualifications, which comprise a tertiary degree as an engineer for coal conversion into gas. The third defendant has deposed that she is ready, willing and able to be appointed as an administrator of the deceased’s will and trustee of the deceased’s estate. She considers that she is a fit and proper person to undertake the administration of the estate, having had a close familial relationship with the deceased. As such, she is familiar with the background and history of the estate.
In turn, the second defendant has objected to the appointment of the third defendant as administrator and co-trustee of the estate assets. The second defendant pointed out that, by the terms of the orders made by Daly AsJ, the third defendant is required to ensure that the Donvale property is well maintained, and that all rates, taxes and other outgoings in relation to it are paid by her. The order further provides that where the third defendant fails to comply with those obligations, the trustees are obliged to take particular action, including the sale of the Donvale property. In those circumstances, it was submitted, there would be a real potential for a conflict of interest if the third defendant were appointed as an administrator of the estate and a co-trustee of the assets of the estate. Further, it was submitted, the appointment of the third defendant, the life tenant, as a co-trustee with the first defendant, would not, in a practical way, assist the administration of the estate after the termination of her life interest.
The principal asset of the estate of the deceased is the Donvale property. On the most recent information that had been provided to the Court, the value of that property is assessed at $1,650,000. The only other asset, of any particular value, is a debt owed to the estate by the Hasslinger Family Trust No 3 in the sum of $325,777.59. The total assets of the estate amount to $2,038,365.19. The total liabilities of the estate are $423,111. Thus, on the latest figures available, the net assets of the estate amount to $1,615,254.19.
In those circumstances, the third defendant is the life tenant of the principal asset of the estate. The estate has very limited, if any, liquid assets. The order made by Daly AsJ requires the third defendant to pay all rates, taxes and outgoings in respect of the property and to insure it against risks. Clause 5 of the orders provides that if the third defendant fails to comply with those obligations, the trustees must notify her in writing of that failure and require her to rectify them within a reasonable time. Clause 6 provides that in the event that such a failure is not rectified, the trustees must ‘forthwith’ sell the property and apply the proceeds in the manner specified by cl 8 of the order.
In those circumstances, there is, quite evidently, a significant potential for a conflict of interest, if the third defendant were appointed as an executor and trustee in the present case.
The principles concerning the selection and appointment of a replacement trustee are well established. They were discussed, in some detail, by Brereton J in Hancock v Rinehart.[8] The dominant consideration is the welfare of the beneficiaries in the estate.[9] Accordingly, a trustee should not be appointed with a view to promoting the interests of some of the beneficiaries in opposition to the interests of other beneficiaries. In particular, the Court should be concerned to avoid appointing, as a replacement administrator and trustee, a person or party who might have a potential conflict of interest.[10] In essence, in appointing an administrator or trustee, the Court should have regard to whether the appointment would promote or impede the execution of the trust.[11]
[8](2015) 106 ACSR 207; [2015] NSWSC 646.
[9]Ibid 241 [120].
[10]Ibid 241 [123].
[11]Ibid 242 [124].
In accordance with those principles, the courts have ordinarily avoided appointing a life tenant or beneficiary as a replacement administrator or trustee.[12] Nevertheless, in an appropriate case, notwithstanding the desirability of appointing an independent administrator and trustee, the limited resources of the estate may justify the appointment of a beneficiary or of a party related to the beneficiary.[13]
[12]Re Davies and Kent’s Contract [1910] 2 Ch 35, 49–50 (Cozens-Hardy MR); Re The Will of Benjamin [1920] VLR 393, 396–7 (Cussen J); Saul v Lin [No 2] (2004) 60 NSWLR 275, [9] (Palmer J).
[13]Mustica Holdings Pty Ltd v Lotus Almonds Pty Ltd [2015] VSC 531, [9]–[10] (Sifris J).
The potential conflict of interest, arising from the position of the third defendant as a life tenant of the Donvale property, raised a significant difficulty in respect of the appointment of an appropriate replacement of the plaintiff as administrator of the estate and trustee of its assets. The difficulty arises from the requirement that there be at least two trustees of the Donvale property, unless the sole trustee is a trustee company.
Clause 3 of the orders made by Daly AsJ requires that the Donvale property be held on trust by the plaintiff and the first defendant or ‘such other trustees being not fewer than two as may be appointed from time to time’. That requirement reflects s 30(3) of the Settled Land Act 1958, which provides that where a settlement of land is created by a will, the personal representatives of the deceased shall be the trustees of the settlement, but where there is a sole personal representative, not being a trustee company, it is obligatory for that personal representative to appoint an additional trustee to act with him.
That provision was not the subject of any detailed consideration in the course of submissions before me. The submissions by the parties proceeded on the basis that it does apply to this case.
By its terms, s 30(3) applies to a ‘settlement [that] is created by a will, or a settlement that has arisen by the effect of an intestacy’. Section 97 (4) (a) of the Administration and Probate Act provides that where a deceased dies leaving a will disposing of his estate, every order made under Part 4 of the Act will take effect ‘as if the provision made by the order had been made by the testator executing a codicil to his will immediately before his death’. In accordance with that provision, clause 2 of the orders made by Daly AsJ provides that the plaintiff and the first defendant (and the third defendant) shall administer the will and the codicils of the deceased as if they contained the provisions set out in cls 3 to 9 and 13 to 18 of her Honour’s orders.
In the absence of argument before me as to the issue, it is appropriate that I proceed on the basis (as did the parties) that s 30(3)of the Settled Land Act does apply to the will and codicils of the deceased as varied by the orders made by her Honour. Accordingly, both in accordance with cl 3 of the orders made by Daly AsJ, and s 30(3) of the Settled Land Act, it is necessary that, on the discharge of the plaintiff from his office as executor and trustee, a replacement trustee of the Donvale property be appointed, unless the sole trustee is a trustee company.
In that respect, in the course of submissions, I raised with counsel for the first defendant (and the third defendant) whether the first defendant would be prepared to apply to be discharged from his role as executor and trustee of the estate, so as to enable State Trustees Ltd to be appointed, in his place, pursuant to s 8 of the State Trustees Act. However, counsel for the first defendant advised that her client would not agree to being discharged from his office as executor and trustee.
In view of that position taken by the first defendant, the Court was left with an unresolved dilemma. The terms of the orders made by Daly AsJ, and the effect of s 30(3) of the State Trustees Act, require the appointment of an additional trustee of the Donvale property, which is the only significant asset of the deceased’s estate. Counsel for the second defendant, and counsel for the plaintiff, both submitted that, to resolve that dilemma, I should exercise a power, which they contended the Court possesses under s 48 of the Trustee Act 1958, or alternatively under the inherent powers of the Court, to remove the first defendant as a trustee of the Donvale property, so as the enable the appointment of State Trustees in his place.
I doubt that such a power exists under s 48(1) of the Trustee Act. The Court certainly does have an inherent power, in an appropriate case, to remove a trustee. Such a power ordinarily is exercised in cases in which the position of the trustee in question is antithetical to the welfare of the interests of the beneficiaries of the settlement.[14] However, in my view, this is not such a case. As I have already discussed, I have refrained from adjudicating the competing claims made between the plaintiff and the first defendant concerning the administration of the estate for the deceased, including issues relating to the Donvale property. In those circumstances, I am not in a position to make a finding that, based on some conduct by the first defendant, it would be appropriate to remove him as a trustee of the property. The fact that it would be convenient to do so would not, on its own, be a sufficient basis for his removal in the circumstances of this particular case.
[14]Miller v Cameron (1936) 54 CLR 572, 575 (Latham CJ), 580–1 (Dixon J); [1936] HCA 13.
Counsel for the second defendant further contended that, pursuant to the State Trustees Act, I could make an order requiring State Trustees to act as a co-trustee with the first defendant of the Donvale property. In that respect, counsel relied, in particular, on the provisions of s 5 and s 8 of the Act.
In my view, those provisions do not empower the Court to make a mandatory order that State Trustees act as a co-trustee, in circumstances in which it has declined to do so. In any event, in view of the background to the current application, as outlined in the materials that have been filed in this matter, it would not be appropriate to make such an order in the absence of the agreement of State Trustees to such a course.
In addition, the solution proposed by counsel for the second defendant and counsel for the plaintiff would create a further difficulty. If the first defendant were removed as a trustee of the Donvale property, he would nevertheless remain as an executor of the estate. In view of the nature of the estate, and the circumstances in which it has been administered to date, in my view it would be undesirable that the executor of the estate be a different person or entity to the trustee of the Donvale property.
In those circumstances, at the conclusion of oral submissions, I was left with an intractable dilemma. For the reasons that have been advanced by counsel for the second defendant, and which I have discussed, the third defendant, if appointed as an administrator of the estate and trustee of the Donvale property, would be in a position of a conflict of interest. However, by the terms of the orders made by Daly AsJ, and by reason of s 30(3) of the Settled Land Act, it is necessary that a second person be appointed as a co-trustee of the Donvale property.
After I had adjourned in order to consider how I should resolve that dilemma, the solicitors for the first and third defendants forwarded a letter to the Court, and to the other parties, stating that the first defendant had made enquiries with Mr Tracey John Lake as to his availability to be appointed as co-executor and co-trustee of the estate of the deceased. Mr Lake is described as a mentor of the first defendant who has often provided business advice to him, and for that reason Mr Lake is familiar with the deceased’s estate.
Mr Lake has sworn an affidavit in which he has expressed his availability to be appointed an administrator of the deceased’s will and as a trustee of the deceased’s estate. Mr Lake has stated that he is willing to take on that role without any remuneration.
In his affidavit, Mr Lake confirmed that he had assisted the first defendant with various business issues in the past and that he had some familiarity with the conduct of the deceased’s estate. Mr Lake holds a Bachelor of Commerce degree from the University of New South Wales. He is 70 years of age and is in good health, and continues to work full-time.
Since 2012, Mr Lake has been the Chief Executive Officer of the Niuminco Group Limited which is a publicly listed mining and mineral exploration company. He first held the position of chief executive officer of a company in 1982, and he has been a principal shareholder in private and public companies. Mr Lake states that he has in excess of 45 years’ experience in a number of industries, including the retirement village industry, property development and investment, manufacturing, retail and the mining industry. At present Mr Lake is also a director of Furlough House Retirement Village, which is a not for profit retirement village for ex-servicemen and women, and for financially disadvantaged persons.
In response, counsel for the second defendant raised concerns as to the proposed appointment of Mr Lake as a trustee of the Donvale property and as an administrator of the estate of the deceased. He noted that Mr Lake is ordinarily resident in New South Wales, and he will therefore not be able to supervise the management of the principal asset of the estate, namely, the Donvale property. In addition, it was submitted that Mr Lake does not have sufficient independence from the first defendant in order to be able to discharge the fiduciary duties of his role as trustee of the Donvale property. Mr Lake has a long-standing commercial relationship with the first defendant, and, it would seem, the first defendant has a significant shareholding in the company of which Mr Lake is the current Chief Executive Officer. In addition, counsel noted that Mr Lake is older than the life tenant. He does not appear to be aware of the issues relating to the accounts of the estate or any other issues affecting its conduct. In addition, it was submitted, there was no indication that Mr Lake is familiar with the fiduciary duties of an executor and trustee.
In response, counsel for the first defendant submitted that Mr Lake has significant experience as an officer of corporations, and as such would be well familiar with the nature and content of the fiduciary duties which should attach to his role as an executor of the estate and trustee of the Donvale property. Although Mr Lake resides in New South Wales, he has two daughters who live in Melbourne, and he is a frequent visitor to Victoria.
The matters that have been raised by counsel for the second defendant are of some moment. Certainly, it would be preferable to appoint, as the additional trustee of the Donvale property, a person who is resident in Victoria, and who is fully independent of the first defendant. However, notwithstanding those considerations, it seems to me that Mr Lake is a person who is suitable to be appointed as trustee of the Donvale property, and also as an administrator of the estate of the deceased. Mr Lake has a significant background in commerce. In his capacity as a director and officer of a number of companies, he would have gained an understanding of the requirements of the fiduciary duties that apply to such positions. While the duties that attach to an executor and trustee are not identical with those of a director, nevertheless his experience would equip him with a sufficient understanding in order to ensure that he discharge his role independently of the first defendant, should he be appointed as a trustee of the Donvale property. It is a matter of some concern that Mr Lake is not a resident of Victoria. However, the fact that he does visit the State for family reasons does have the consequence that he will have the opportunity, from time to time, to inspect and supervise the conduct of the Donvale property.
In those circumstances, I am satisfied that Mr Lake is an appropriate person to be appointed as a trustee of the Donvale property. As I have already discussed, in my view it is desirable that such a person also be appointed as an administrator of the will and estate of the deceased.
Summary of conclusions
For the foregoing reasons, I have reached the following conclusions:
(1)I uphold the application by the plaintiff that he be discharged as an executor of the will of the estate of the deceased and that he be discharged from his office as trustee of the will and estate of the deceased and from his office as trustee of the Donvale property.
(2)Tracey John Lake be appointed pursuant to s 34(1) of the Administration and Probate Act 1958 as administrator of the will and estate of the deceased in substitution for the plaintiff, and, pursuant to the inherent jurisdiction of the Court, as trustee of the will and estate of the deceased and as trustee of the Donvale property, in substitution for the plaintiff.
(3)The plaintiff’s taxed costs of this application be paid out of the estate of the deceased.
Proposed orders
Counsel for the plaintiff, and counsel for the first and third defendants, have each helpfully provided the Court with draft orders. Subject to any further discussion with counsel, I therefore propose to make the following orders:
1) The plaintiff be discharged pursuant to s 34(1)(b) of the Administration and Probate Act 1958 as an executor of the will and estate of Alban Richard Hasslinger, deceased.
2) The plaintiff be discharged pursuant to the inherent jurisdiction of the Court from his office as trustee of the will and estate of the deceased and from his office as a trustee of the trust created by para 2 of the orders of the Honourable Associate Justice Daly dated 31 March 2020 (‘Donvale Property Trust’) of the land described in certificate of title volume 8857 folio 139, being the land located at and known as 9 Sowter Court, Donvale, Victoria (‘Donvale property’).
3) Tracey John Lake be appointed pursuant to s 34(1) of the Administration and Probate Act 1958 as an administrator with the will annexed of the estate of the deceased in substitution for the plaintiff.
4) Tracey John Lake be appointed pursuant to the inherent jurisdiction of the Court, alternatively s 48(1) of the Trustee Act 1958, as trustee of the will and estate of the deceased and as trustee of the Donvale Property Trust in substitution for the plaintiff.
5) All of the property and assets of the estate of the deceased (other than the Donvale property) vest in the first defendant as executor and Tracey John Lake as administrator with the will annexed in substitution for the plaintiff, as executor and administrator respectively and trustees of the will and estate of the deceased.
6) The Donvale property vest in the first defendant and in Tracey John Lake in substitution for the plaintiff, as trustees of the Donvale Property Trust.
7) By 2 September 2022, the first defendant deliver up to the Registrar of Probates the grant of probate made 22 August 2016 of the will of the deceased dated 3 September 1997, the codicil dated 8 June 2008 and the further codicil dated 29 September 2013 for the purpose of annexing an authenticated copy of the Court’s order to the grant.
8) By 9 September 2022, the plaintiff deliver up to the firstnamed defendant as continuing executor and to Tracey John Lake as the substituted administrator, and as trustees, of the deceased’s estate all of the property or documents of the estate of the deceased (other than the Donvale property) that are in his possession, power or control.
9) By 23 September 2022, the first defendant make and file in the office of the Registrar of Probates an account of his administration of the estate in accordance with s 306AA of the Supreme Court (Administration and Probate Act) Rules 2014 to the date of this order.
10) By 23 September 2022, the first defendant deliver to the second defendant the account of his administration of the estate referred to in cl (9) above.
11) The costs of the plaintiff, of the first and third defendants, and of the second defendant, each be paid out the property and assets of the deceased’s estate on an indemnity basis.
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SCHEDULE OF PARTIES
| MICHAEL JOHN WALTER (as executor of the estate of ALBAN RICHARD HASSLINGER, deceased) | Plaintiff |
| -and- | |
| ALBAN HORST HASSLINGER (as executor of the estate of ALBAN RICHARD HASSLINGER, deceased) | First defendant |
| MARCUS NORBERT HASSLINGER | Second defendant |
| KATRIN SICKEL | Third defendant |
| PETER VOLKER HASSLINGER (by his administrator STATE TRUSTEES LIMITED) | Fourth defendant |
| THOMAS MARTIN HASSLINGER (by his administrator STATE TRUSTEES LIMITED) | Fifth defendant |
3
7
1