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Williams v Williams

Williams v Williams

Case [2004] QSC 269 26 August 2004

Standing

Removal of Trustees

Misconduct

Unauthorised Payments

Substitute Trustee

Succession Law

Trusts & Equity

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SUPREME COURT OF QUEENSLAND

CITATION:

Williams v Williams [2004] QSC 269

PARTIES:

NANNETTE JANE WILLIAMS
(first applicant)
and
SAM JOHN WILLIAMS (by his litigation guardian NANNETTE JANE WILLIAMS)
(second applicant)
v
JOHN CHARLES WILLIAMS and BENJAMIN DEAN WILLIAMS (as executors of the estate of Marcus John Charles Williams – Presumed Deceased)
(respondents)

FILE NO:

BS2396/04

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

26 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2004

JUDGE:

Wilson J

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – Application for removal of executors and trustees – Application for appointment of administrator – where there has not been a grant of probate – whether Court has power to remove executors for misconduct or dereliction of duty – where executors are father and brother of the deceased – where executor made unauthorised payments from estate to himself and family company – where there is a delay in applying for probate – where executors demonstrate lack of understanding of duties and obligations.

EQUITY – TRUSTS AND TRUSTEES – TRUSTEES – THEIR APPOINTMENT, DISMISSAL, ESTATE, ETC – RETIREMENT AND REMOVAL – REMOVAL BY THE COURT – Application for removal of executors and trustees – Application for appointment of substitute trustee – where allegations of trustee misconduct and/or dereliction of duty - whether Court has power to remove trustees and appoint substitute.

Administration of Justice Act 1985 (UK) s50
Public Trustee Act 1978 s31
Trusts Act 1973 ss6, 80(1)
Succession Act 1981 ss6, 41, 45, 52(2)

Bates v Messner (1967) 67 SR (NSW) 187 applied
Chetty v Chetty [1916] AC 603 cited
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 cited
Monty Financial Services Ltd v Delmo [1966] 1 VR 65 cited
Phelan v Booth (1941) 43 WALR 60 at 61 cited
Porteous v Rinehart (1998) 19 WAR 495 applied
Re Estate of Maschke (QSC 65/1992, 18 March 1994 unreported) applied
Ryan v Davies Bros Ltd (1921) 29 CLR 527 cited
Skaftouros v Dimos [2002] VSC 198 applied

Crago "Executors of Unproved Wills: Status and Devolution of Title in Australia" (1993) 23 UWALR 235

Meagher and Gummow, Jacobs: Law of Trusts in Australia (6th ed, 1997)

Yeldham et al, Tristram and Coote's Probate Practice (28th ed, 1995)

COUNSEL:

A Collins for the applicants
I Perkins for the respondents

SOLICITORS:

Damien Bourke & Associates for the applicants
Quinn & Scattini for the respondents

WILSON J: This is an application for the removal of executors and trustees of a deceased estate, the appointment of an administrator, and consequential orders.

Marcus John Charles Williams ("the deceased") died on 16 February 2000 aged 29. He left a widow Nannette Jane Williams (the first applicant) and a son Sam John Williams (the second applicant) who had been born on 7 March 1997. By his will dated 17 February 1998 he appointed as his executors and trustees his father John Charles Williams and his brother Benjamin Dean Williams (the respondents). By clause 3 of his will he…

Grounds of appeal

[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.

Continue reading Williams v Williams

Details

AGLC: Williams v Williams [2004] QSC 269
Case: [2004] QSC 269
Decision Date: 26 August 2004

CaseChat Overview and Summary

The applicants, in this case, sought the removal of executors and trustees from the estate of the deceased. The executors, the father and brother of the deceased, were accused of misconduct and dereliction of duty. They had made unauthorised payments from the estate to themselves and a family company, and there was a delay in applying for probate. The applicants sought the removal of the executors and trustees, as well as the appointment of an administrator and a substitute trustee due to allegations of misconduct and dereliction of duty. The court was required to determine whether it had the power to remove the executors and trustees, and if so, whether it was appropriate to do so in the circumstances of this case.

The court considered the allegations of misconduct and dereliction of duty by the executors and trustees, as well as the delay in applying for probate. The court found that it did have the power to remove the executors and trustees for misconduct or dereliction of duty, and that it was appropriate to do so in this case. The court noted that the executors demonstrated a lack of understanding of their duties and obligations, and that the delay in applying for probate was unreasonable. The court also considered the interests of the beneficiaries of the estate, and found that the removal of the executors and trustees was in their best interests.

The court ordered the removal of the executors and trustees from their positions, and appointed an administrator and a substitute trustee. The court found that the executors and trustees had acted contrary to their duties and obligations, and that their conduct warranted their removal. The court also found that the delay in applying for probate was unreasonable, and that the interests of the beneficiaries of the estate would be best served by the removal of the executors and trustees. The court made orders for the distribution of the estate, and for the payment of costs.

In conclusion, the court found that it had the power to remove the executors and trustees for misconduct and dereliction of duty, and that it was appropriate to do so in this case. The court considered the allegations of misconduct and dereliction of duty, as well as the delay in applying for probate, and found that the removal of the executors and trustees was in the best interests of the beneficiaries of the estate. The court appointed an administrator and a substitute trustee, and made orders for the distribution of the estate and the payment of costs.

Orders