Windsor v Buxton

[2001] QSC 81

SUPREME COURT OF QUEENSLAND

CITATION:

Windsor  v Buxton [2001] QSC 081

PARTIES:

IAN FREDERICK HOLMES WINDSOR
(applicant)
v
MARGARET ANNE BUXTON
(respondent)

FILE NO:

S 8593 of 1999

DIVISION:

Trial

DELIVERED ON:

27 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2001

JUDGE:

Chesterman J

ORDER:

Orders as per draft. The respondent is to pay the applicant’s costs of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – Where two year delay in administration is caused by an administrator’s caveat – Where caveat had no substance and was to the financial detriment of the estate

COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – MISCONDUCT – DELAY – NATURE OF PROCEEDINGS – UNNECESSARY PROCEEDINGS

COUNSEL:

Mr. D. J. Morgan for the applicant
Mr. K. C. Kelso for the respondent

SOLICITORS:

Bradley & Bray for the applicant
Budgen Lawyers for the respondent

1. CHESTERMAN J:  By an application filed on 9 February 2001 the applicant sought orders that:

1.The caveat lodged by the respondent on 27 September 1999 be set aside.

2.That a grant of probate in common form be made to the applicant in respect of the will of Dennis Leslie Mather subject to the formal requirements of the Registrar.

3.That the applicant’s costs of the application be paid by the respondent.

1. The late Mr Mather died in Nambour hospital on 11 June 1998.  He executed a will six days earlier, on 5 June 1998.  By it he gave a pecuniary legacy to his daughter and specific legacies to his son and his de facto wife, the respondent Mrs Buxton. The residue of his estate was given to his children and Mrs Buxton in equal shares. 

1. The testator was 60 when he did.  He had for some time suffered from cancer which progressed and was incurable.  He had lived with Mrs Buxton for some years.  She is about 50.  There is and was a degree of animosity between the respondent and the testator’s children. 

1. On 15 May 1998 the testator, knowing his death was not far off, executed a will which gave the bulk of his estate to the respondent, a worthless business to his son, and two-thirds of the money standing to his credit in superannuation and bank accounts to his daughter. 

1. The later will, that made on 5 June 1998, was made while he was in hospital, shortly after the arrival of the daughter from overseas and without the knowledge of the respondent.  These facts, together with the advanced state of the testator’s illness gave rise to some suspicion that the testator may not have had the requisite capacity to make the will on 5 June 1998, or that it had been product of undue influence exerted on him by his children. 

1. Instructions for the will were taken by Ms Judy Hayward a solicitor (at the time an articled clerk) employed by Messrs Windsor Craig one of whose principals, Mr Windsor, is the applicant.  An affidavit filed in the proceedings establish beyond any doubt that the testator had the requisite mental capacity to make his will and that he was not overborne in deciding how to dispose of his property. 

1. The will appoints the applicant and respondent joint executors.  Only the applicant has applied for probate.  The respondent has refused to join in the application or to renounce her appointment.  She has commenced an application seeking better provision from the testator’s estate but has not prosecuted the application even to the stage of obtaining an order for directions.  She has remained in possession of the testator’s home which is the largest and indeed the only substantial asset in the estate. 

1. On 29 June 1999 the respondent caused a caveat to be filed in the court forbidding anything being done “towards the grant of administration of the (testator’s) estate . . without notice” to her.  The caveat lapsed but was renewed on 27 September 1999.  The service of the application for the removal of the caveat and for the grant of probate in common form appears to have caused the respondent to consider her position seriously for the first time.  Her solicitors on 22 September 2001 sought to compel the production of the Nambour hospital’s records in relation to the testator’s treatment at about the same time they sought medical advice about the testator’s health and testamentary capacity at the time he executed the will. 

1. The application came on before Byrne J on 26 February but was adjourned to allow the respondent more time to obtain evidence to oppose it.  When called on before me the respondent’s counsel indicated that his client no longer seeks to have the will approved in solemn form and, indeed, consents to a grant of probate to the applicant and an order that her caveat be removed.  It is accepted that the will made on 5 June 1998 is, in truth, the testator’s last will and testament. 

1. The applicant seeks the costs of and incidental to the application which have been incurred unnecessarily.  The respondent opposes such an order and seeks instead that the costs of both parties be paid out of the estate. 

1. Mr Windsor’s affidavit indicates to my satisfaction that the respondent has acted quite irresponsibly in relation to the administration of the testator’s estate.  While some initial suspicion about the validity of the last will was justified a conference with Ms Hayward would immediately have laid the suspicion to rest.  Not to have approached her and obtained her account of the manner in which the testator gave instructions for his will was unjustifiable.  There is no basis for thinking that had the respondent or his solicitor asked to confer with Ms Hayward that they would not have been accommodated.  The applicant at an early stage sent the respondent a copy of the testator’s written instructions for the will.  The respondent was a joint executor with Ms Hayward’s employer. 

1. For two years the administration of the estate has been delayed while the respondent enjoyed exclusive possession of the testator’s only substantial asset.  She refused requests from her co-executor to provide information and books of account relevant to the estate’s assets.  The respondent refused her consent to the investment of some moneys recovered by the estate pending the grant of probate.  As a result the moneys have been held in a trust account without earning interest.  As earlier noted she refused to join in making an application for probate though her solicitors erroneously asserted she had done so. 

1. The circumstances make it just to order the respondent to pay the applicant’s costs of and incidental to the application, to be assessed on the standard basis.  It would be quite unfair to require the estate, two-thirds of which is to pass to the testator’s children, to bear that expense. The continuation of the caveat was quite unnecessary. The respondent and her solicitors should have expeditiously ascertained whether there was any basis for alleging lack of capacity or undue influence.  The inquiry would have shown there was no such basis.  Her refusal to cooperate with her coexecutor and to provide information to allow the estate to be administered to the advantage of all beneficiaries while selfishly enjoying the benefit of it suggest a degree of cynicism in her actions.  The grounds for her caveat had no substance but she persisted with it to the financial detriment of the estate.  I will make an order in terms of the draft submitted by counsel for the applicant as amended and initialled by me.