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Re Masci[2014] QSC 281

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

25 November 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

11 April 2014, 13 May 2014, 22 September 2014

JUDGE:

Dalton J

ORDERS:

1.Probate of the Will of Fernando Masci dated 2 April 2006 is granted to Mr Graham Silvino Masci as executor, subject to the formal requirements of the Registrar.

2.Declaration that the joint will of Fernando and Elizabeth Masci dated 2 April 2006 is a mutual will.

3.Declaration that the joint tenancy in which Fernando and Elizabeth Masci held the land situated at 1 Iceland Court, Merrimac in the State of Queensland, was severed, at least from the death of Fernando Masci.

4.Declaration that the joint will of Fernando and Elizabeth Masci dated 2 April 2006 operated to give Elizabeth Masci a life estate in the land situated at 1 Iceland Court, Merrimac in the State of Queensland, and all the monies of Mr Fernando Masci whether held in his own name or jointly with her.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITIONS OR SUMMONS FOR ADVICE – GENERALLY – where uncertainty in interpreting a will – whether executor can seek advice pursuant to s 96 of the Trusts Act 1973 (Qld)

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – HOME MADE WILL – where the will was poorly drafted – where home-made will – whether the will can be admitted to probate

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – PRINCIPLES OR RULES OF CONSTRUCTION – READING WILL AS A WHOLE –whether the will establishes a life estate in the survivor

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – JOINT AND MUTUAL WILLS – where the document is a joint will – whether the will is a mutual will

REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – JOINT TENANCY AND TENANTS IN COMMON – JOINT TENANCY – SEVERANCE – GENERALLY –where husband and wife held their home as joint tenants  – where husband and wife made a joint will – whether the joint tenancy was severed

SUCCESSION – PERSONAL REPRESENTATIVES – DISPUTES BETWEEN PERSONAL REPRESENTATIVES – where executors cannot co-operate – whether to remove an executor

Succession Act 1981 (Qld), s 6, s 33K, s 52(2)

Trusts Act 1973 (Qld), s 5, s 80, s 96

Baird v Smee [2000] NSWCA 253

Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11

Birmingham v Renfrew (1937) 57 CLR 666

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1981-1982) 149 CLR 345

Colston v McMullen [2010] QSC 292

Colston v McMullen [2011] QCA 2

Dufour v Pereira (1769) 1 Dick 419; 21 ER 332

Fell v Fell (1922) 31 CLR 268

Fielder v Burgess [2014] SASC 98

Re Hagger [1930] 2 Ch 190

Re Lowin (deceased); Perpetual Trustee Co Ltd v Robins [1967] 2 NSWR 140

Re Rodgers [2002] 1 Qd R 543

Re the will of Mayer [1995] 2 Qd R 150

Smidmore v Smidmore (1905) 3 CLR 344

COUNSEL:

R Cameron for the applicant

P Travis for the respondent

SOLICITORS:

Lovegrove, Smith & Cotton for the applicant

Bell Legal Group for the respondent

[1] Mr Fernando Masci died on 7 February 2012.  His second wife, Mrs Elizabeth Masci, survives him.  Both had been previously married and had children from their previous marriages.  Mrs Elizabeth Masci and the children from both previous marriages were heard before me.  The case concerns a will which Mr Fernando Masci and Mrs Elizabeth Masci executed on 2 April 2006 after having drawn it themselves on a pre-printed form:

“This is the last Will and Testament of me, Fernando Masci & Elizabeth Masci (name) of 1 Iceland Court, Merrimac (address) in the State of Queensland 4226.

1.I revoke all Wills and other documents of testamentary intent previously made by me; this is my last Will and Testament.

2.I appoint Mrs Susan Elizabeth Camm and Graham Silvano Masci (name) of 4 Hero’s Drive Gembrook, Victoria to be Executor or Executrix and Trustee of this my Will.

I give Fernando Masci my husband is to stay in the house above and to handle all monies untill his demise. (death) Elizabeth Masci is to stay in the house above and handle all monies if Fernando Masci is deceased before her.  On the death of both Mrs Susan Camm of 4 Hereo’s Drive, Gembrook. Victoria 3783 Ph: 0359681831 and Graham Silvano Masci of Suite 2 155 Canterbury Rd, Kilsyth. VIC. 3137 are to sell all possessions and 50% is to go to Mrs Susan Camm and 50% to Diane Collins, daughter of Fernando Masci, Ricky Fernando Masci son of Fernando Masci and Graham Silvano Masci son of Fernando Masci.  This is to be reversed if either is deceased first.  This is the last will and testament of Fernando Masci and Elizabeth Masci.

[2] No-one contended that the will had not been executed in accordance with s 10 of the Succession Act 1981 (Qld).

[3] Despite the passage of considerable time since Mr Masci’s death, the administration of the estate has not proceeded, partly because of the difficulties in interpreting the joint will and partly because of the sanguine but unrealistic hope of Fernando and Elizabeth Masci that there would be co-operation between the two executors appointed: Mrs Masci’s daughter on the one hand and Mr Masci’s son on the other.  It is evident that there cannot be co-operation between them.

[4] This proceeding involved an application and cross-application by Mr Masci’s son Graham on the one hand, and Mrs Masci and her daughter on the other.  Mr Graham Masci asks for advice, declarations and orders pursuant to s 96 of the Trusts Act 1973 (Qld)Although it is not apparent from the terms of the application itself, the points which he required to be determined were: whether the will could be admitted to probate (doubt being raised by its being so uncertain); whether the joint will was a mutual will; whether or not the will severed the joint tenancy in which Mr Fernando and Mrs Elizabeth Masci held their home; what the words “all monies” in the will meant, and for Ms Susan Day[1] to be removed as an executor. 

[5] The cross-application was brought by Mrs Elizabeth Masci.  Her attitude was that Mr Graham Masci’s application was incompetent having been brought by one executor, not both.  She was willing to waive this point to save costs.  I am willing to treat it as an irregularity given that both executors are before the Court; Ms Day will not join in as an applicant, and there are real matters of controversy.  Counsel for Ms Day and Mrs Elizabeth Masci criticised Mr Graham Masci for bringing his application which he said was unnecessary and which he opposed in substance.  By her cross-application Mrs Elizabeth Masci asked for both executors to be removed and a solicitor, whom she named, to be appointed as an administrator instead, with consequential orders for the property and records of the estate to vest in him.

[6] I am satisfied that this is an appropriate case to give the advice and make the declarations and orders sought pursuant to s 96.  There is a real basis for doubt, uncertainty and potential conflict as to the matters raised.

Construction of the Document

[7] A Court cannot give effect to intention which is not expressly or plainly implied in the language of a will.[2]  However, it is the duty of a Court to ascertain, if possible, what the testator intended by the words of a will, whether the intention is found expressly or implicitly in the document and, as far as it is possible, give effect to that intention.[3]  The Court leans against intestacy but cannot rewrite the will.  In looking for an intention it is relevant to take into account that the testator drafted their own will.[4]  And there is a similar latitude extended to testators who do not have English as their first language.[5]

[8] The drafting of the will in this case is so poor that I wondered whether or not I could sensibly give any effect to it.  I think that reading it as a whole I can.  I think that it can be admitted to probate. 

[9] To understand the sense of the will it is necessary to take cognisance of the fact that both Fernando and Elizabeth Masci had been married before they were married to each other.  Further, that both of them had children from their first marriages, but no children from their marriage to each other.  Fernando’s children from his first marriage are Graham, Diane and Ricky.  Mrs Elizabeth Masci had one daughter from her first marriage, Susan.  It seems to me that broadly the intention behind this will was that the survivor of Fernando and Elizabeth was to be looked after during their lifetime but, on their death, the property of both testators was to be equally divided so that it went half to Mr Masci’s children and half to Mrs Masci’s children.  The will treats Fernando and Elizabeth equally: they have the same rights on survivorship.  Further, the will treats the families of Fernando and Elizabeth equally.  A child from each of the previous marriages is made executor, and the residue, after the life of the survivor, is to pass equally to the two families. 

[10] It seems to me that the first two substantive sentences of the will establish a life estate in the survivor of Fernando and Elizabeth.  The two sentences are clear enough in their intention, although they are not elegantly or formally expressed.  The language “handle all monies” and “is to stay in the house” is quite distinctive.  Both the verbs “to handle” and “to stay” give the clear impression that something short of an absolute interest is being given.[6]  Further, the provision that on the death of both, which must mean both Fernando and Elizabeth, the executors are to sell “all possessions” also tends to indicate that what was being given to the survivor of Fernando or Elizabeth for their lifetime was not absolute ownership but a life estate – ie., the will disposes of property after the death of the survivor.[7]  This result is consistent with s 33K of the Succession Act.

[11] The sentence at the end of the will, “this is to be reversed if either is deceased first”, only makes sense if it is read as relating to those first two sentences of the will.  I construe that sentence as relating to the first two sentences.  It seems to me that the sentence is strictly unnecessary but was added, perhaps prophylactically, given the difficulty the testators had in expressing the concept that whichever of the two survived, the situation was to be the same: the survivor would have a life interest and the residue would be shared equally between the two previous families.

[12] It was argued that the words “stay in the house” and “handle all monies” in fact gave something less than a life interest – a mere right to reside[8] and, in the case of the monies, imposed a trust to preserve the monies for the adult children.  I reject this argument because I think that it attributes too great a sophistication to the words used.  In my view, words were chosen which indicated something less than absolute ownership but, particularly in the case of monies, it becomes very difficult to see that something less than a life interest was meant.  The means of the testators were limited, they both received Government pensions.  There is no doubt that the survivor would need to use the monies they had in order to live and it is absurd to think that a will as simple as this would impose obligations on the survivor, rather than the executors, to handle monies in the sense that a trustee handles monies.  If the survivor was not to have beneficial use of the monies in their lifetime, there is no reason to postpone the ultimate gift to the two sets of children, as the will does.  I cannot see any reason for treating the intention as to the house any differently from the intention as to the monies. 

[13] There was an argument advanced that the phrase “handle all monies” was a reference only to monies held jointly between Fernando and Elizabeth as at the date of death.  I can see no reason to construe these words in that way.  To the contrary, the word “all” is clear.  Further, to the contrary of such an argument, if the survivor were only to “handle” or have the use of joint monies, there is no provision in the will for what is to happen to any separate monies until the death of the survivor.  While it might be possible to conclude that the executors were to take charge of any money which was not joint money until the death of the survivor, there is nothing in the will which shows any intention that this happen.  There is no reason why it ought to happen – if monies other than joint monies are intended to pass equally to the two groups of children eventually, why would that not occur immediately if the survivor were not to have a life interest in those monies?  Why would the executors be burdened with the investment and administration of the sums of money until the death of the survivor?  I find that all monies means all the monies of both Fernando and Elizabeth, whether held in joint accounts or otherwise.

Mutual Wills

[14] Mr Graham Masci contended that the will was a mutual will.  This is a difficult question.  In Bigg v Queensland Trustees Ltd [9] McPherson J said:

“Mutual wills are separate testamentary instruments of two individuals in reciprocal terms.  The discovery that such wills have been executed by two or perhaps more persons has in itself no particular legal significance … What matters is proof that the parties made an agreement to execute their wills in that form and that, expressly or by implication, they contracted not to revoke them.  It is the contract rather than the form of the wills that attracts relief at law or in equity.”

[15] The document here was a joint will.  By executing such a document, in the absence of any evidence to the contrary, I find that the parties had agreed to make their wills together in that form.  In the absence of evidence to the contrary, that almost goes without saying.  There remains the question as to whether or not there was an agreement between the parties not to revoke their wills, or at least not to revoke them without giving the other notice.  There was no evidence of any express agreement about this.  Williams on Wills gives the following proposition, “the mere fact of the execution of a joint will is not sufficient to establish an agreement not to revoke”.[10]  That text cites Canadian authorities and Re Hagger.[11]  Theobald on Wills give the same proposition at [1-011] and again cites a Canadian case.[12]  Lee’s Manual of Queensland Succession Law says, “usually, but not necessarily, [a joint will] is the product of an agreement and is therefore mutual as well as joint”.[13]  The author cites Re Hagger and Canadian cases.  I think that the statement in Lee most accurately reflects the law.

[16] Re Hagger concerned a joint will.  The will recited that the two testators (husband and wife):

“… had been engaged for many years past in a certain business to which they had devoted their joint energies, and as a result thereof had acquired certain lands, houses and other properties and moneys which they had always treated as their joint property, and no division thereof had ever been made, and that they had agreed to dispose of the same by their joint will, which they declared should not be altered or revoked save by their mutual agreement …” – p 190.

[17] When the terms of the will in Re Hagger are considered, it seems that the conclusion in that case – of mutual wills – was inevitable: evidence of an express agreement not to revoke was contained in the joint will.

[18] The old case of Dufour v Pereira[14] is authority for the proposition that an agreement not to revoke without notice can be implied from the making of a joint will.  This was, from the report, the first case about mutual wills in English law.  The older, much shorter, report (Dickens) assumes a contract not to revoke, at least without notice, but does not reveal the facts upon which that conclusion was based.  The longer report in Hargrave’s Juridical Arguments (1799) makes it plain that the agreement was implied from the joint will, “The instrument itself is the evidence of the agreement”.[15]  The report in Hargrave’s volume is the last part of an article entitled “The Walpole Case of Mutual Wills”.[16]  The article is recommended as an authority by Dixon J in Birmingham v Renfrew.[17]   He gives this extract from it in order to explain the reasoning behind the implication of an agreement not to revoke:

“In these circumstances, there is such a combination, that it seems to me impossible to deny the existence of compact between the two testators.  A mutual pledging is inferable from the beginning to the end of the transaction; it is inferable from the two instruments themselves; is inferable from every thing preceding and every thing accompanying the actual execution of them.  The whole transaction speaks the language of mutual engagement most emphatically in every part.  The evidence of the engagement is the thing itself.  Except on the idea of mutual concession and mutual engagement, the transaction is unintelligible. …  Consequently they must have intended, that during their joint lives neither should revoke secretly and clandestinely; and that after the death of one without revoking the right of revoking should cease to the other.  Upon any other footing, it would have been a transaction of mutual wills, with a licence to both parties to impose upon each other at pleasure; and instead of a fair honorable and equal bargain, it would have been one of a kind the most hollow deceptive and ensnaring.”

[19] In Bigg v Queensland Trustees Ltd (above) there were two wills with reciprocal provisions and some (rather slight, see p 12 and p 16) evidence that there was an agreement to make wills with reciprocal provisions.  There was no evidence of any express agreement not to revoke.  McPherson J said:

“Logically, the first question to be decided in a case like this is whether a contract to make and not to revoke mutual wills has been established.  I am in no doubt that an agreement to make such wills is proved by the evidence of the plaintiff before me.  The form of the wills … bears out his testimony on that point.  The substantial question is whether there was also a contract not to revoke.  In some of the judgments this is a matter that is treated as subject to strict proof of an express contract to that effect; in others, that it may be implied or inferred from the fact that the parties agreed to execute mutual or corresponding wills.  In Birmingham v Renfrew … Dixon J said of the testator in that case that ‘his obligation not to revoke his will during her life without notice to her is to be implied’.  For my part I do not see how it can be otherwise.  There is no point in agreeing to make corresponding wills if the parties to such an agreement are free to revoke immediately after executing them, by which I mean ‘free’ in the sense of immune from the ordinary remedies available for breach of contract”. – pp 13-14.

[20] There are two points of importance to be taken from that passage.  The first is that McPherson J acknowledges that the authorities on this topic are difficult to reconcile.  There are certainly cases which hold that the mere fact of making wills in reciprocal terms is not sufficient to establish an agreement not to revoke.  So far as joint wills are concerned, there is very little authority other than Re Hagger and Dufour v PereiraThe second proposition from the passage just cited is that in Bigg’s case McPherson J was prepared to imply an agreement not to revoke.  He relies on the judgment of Sir Owen Dixon in Birmingham v Renfrew, who in turn approves Dufour v PereiraThis is weighty authority.  As described, Bigg concerned corresponding wills, not a joint will, and the evidence as to the agreement to make reciprocal wills was slight.  Nonetheless, the basis for the implication of the term made by McPherson J was one which sits well with the modern circumstances in which a court would imply a term in a contract – that there could be no imaginable efficacy to the bargain without the implied term.[18]

[21] The case of Birmingham v Renfrew was a case of mutual wills where there was evidence of an express contract not to revoke – see the facts set out at p 674.  In that case both Latham CJ and Dixon J were at some pains to point out that the onus of proving the agreement not to revoke is upon the party making the assertion and that it was “a heavy burden of proof” – p 674.  Latham CJ added, “perhaps most husbands and wives make wills ‘by agreement’, but they do not bind themselves not to revoke their wills.  They do not intend to undertake or impose any kind of binding obligation” – pp 674-5.  Dixon J said that an agreement not to revoke “can be established only by clear and satisfactory evidence.  It is obvious that there is great need for caution in accepting proofs advanced in support of an agreement affecting and possibly defeating testamentary dispositions of valuable property” – pp 681-682.  Nonetheless, it is Dixon J who sets out at some length the extract from Hargrave’s report of Dufour v Pereira (see [18] above), at the end of which he says, “this passage contains the reason for implying a condition that neither party should revoke his or her will without notice to the other”. 

[22] In Baird v Smee[19] the New South Wales Court of Appeal dealt with separate reciprocal wills made by a husband and wife.  As in this case, each of the testators had a previous marriage and children from their former marriage, but no children together.  Mason P stated the following:

“Two legal propositions are, in my view, clearly established:

(1)an express or implied agreement may be constituted or evidenced on the face of mutual wills;

(2)the mere fact that two persons simultaneously make wills with mutually similar provisions does not itself establish an agreement not to revoke.” – [6].

[23] Mason P cited Dufour v Pereira, Birmingham v Renfrew and Bigg v Queensland Trustees for the above propositions.  In that case the wills left to the surviving spouse absolutely, but in default of survivorship over 30 days, the estate was to be divided into two equal parts, one part to go to the wife’s children and one part to go to the husband’s children.  It was held that the wills were not mutual.  The Court was unwilling to imply any agreement not to revoke in the absence of any evidence of such an agreement.  In particular, the Court would not imply an agreement not to revoke from the terms of the wills themselves. 

[24] The wills in that case were prepared by an officer of the Public Trustee.  Therefore, Mason P thought that the matter would have been put beyond doubt had there been mutual promises not to revoke – [16].  This case contrasts, as the parties here were not assisted by a lawyer. 

[25] Oddly, in Baird v Smee there was no evidence of the age of the testators at the time they made the wills.  Mason P made comments to the effect that mutual wills might be appropriate in “the case of an elderly married couple wishing to settle their affairs in the same way before they die” but inappropriate otherwise – [13] and see the article cited at [17].  Here of course the testators were elderly at the time they made the joint will.

[26] Handley JA recognises a difference between joint wills and reciprocal wills in terms of whether or not an implication could be made from the terms of the wills themselves:

“The wills themselves may evidence the making of a contract as in Dufour v Pereira and in In re Hagger … where the parties had made a joint will.  However mutual wills in reciprocal form which do not in terms evidence such an agreement have never been sufficient on their own to establish a binding contract.” – [30].

[27] Handley JA addressed the circumstance that the testators in Baird v Smee both had children from prior marriages at [35]-[36].  He concluded that there was no support in the cases for raising an implication of a binding contract from the mere fact that the parties had children from prior marriages.  In my view, the terms of the will in Baird v Smee are important when considering this point.  The wills (allowing for a 30 day survivorship) essentially benefitted the surviving spouse; it was only if there was no surviving spouse that there was an intention to benefit the two families of children equally.  As Mason P put it at [10], “the main concern of each [testator] was for the other”.  He commented, “a gift of this nature does not preclude a contract not to revoke mutual wills, but it does mean that (if such contract existed) the ‘absolute’ beneficiary of the first operative will would be recognised as entitled to substantially full enjoyment of the fruits of the gift in favour of the survivor (cf Re Oldham at 87, Birmingham at 689)”. 

[28] In my view this is a point of considerable distinction between Baird v Smee and the present case.  In this case the joint will gave a life interest to the survivor of Elizabeth or Fernando Masci, but the main dispositive intent was that the assets of the couple pass equally to the two families, ie., Mr Masci’s children on the one hand and Mrs Masci’s daughter, Susan, on the other.  That this is an important circumstance in considering whether the wills are mutual is recognised in the following passage in Birmingham at p 675.  In that case the mutual wills made an absolute gift to the surviving spouse and it was said of that:

“Further, it is conceded by those seeking to enforce the agreement that it does not have the effect of preventing the husband from dealing during his lifetime with property which he received from his wife, so that any trust which was created can only be a kind of floating trust which finally attaches to such property as he leaves upon his death.  Prima facie, where property is given by will or otherwise to a person and he can do what he likes with it, a gift by the testator or donor of what that person shall happen to leave at his death does not limit or qualify the absolute gift to him which is the effect of such a disposition …”

[29] The case with which I am dealing contrasts.  In this case, having regard to the family circumstances of both Mr and Mrs Masci at the time they made the 2006 joint will; the fact that the will is a joint will, and the substance of the provisions of the will – to benefit the couple’s respective families equally, I am prepared to imply a term that this joint will was not to be revoked by either Fernando or Elizabeth Masci without giving notice to the other.  The consequence is that Fernando having died without revoking the will, Mrs Elizabeth Masci’s conscience is bound.

Severance of Joint Tenancy

[30] At the time the 2006 will was made, the main asset owned by Fernando and Elizabeth Masci was their home, which they held as joint tenants.  It was contended that the will severed that joint tenancy because it granted a life estate in the property to the survivor of Elizabeth and Fernando.  Butt says the following about this topic in “Land Law”, 6th ed:

“[14 86]  Severance by course of dealing may occur where all joint tenants make ‘mutual’ wills devising their interest in the jointlyheld property in an agreed manner, whether to themselves or to others – for example, to the survivor for life with remainder to designated beneficiaries.  Despite the rule that a joint tenant cannot defeat the operation of survivorship by a devise of his or her interest, the conduct of all joint tenants in making their mutual wills indicates that they regard themselves as competent to deal with their respective interests in a manner that is inconsistent with the right of survivorship.”

[31] See also to the same effect Bradbrook, MacCallum and Moore, “Australian Real Property Law”, 4th ed, [12.280].  There is old authority to this effect – In re Wilford’s Estate; Taylor v Taylor[20] and In the Estate of Heys.[21]

[32] It was said in argument that even if the joint will was not a mutual will, the joint will still severed the joint tenancy.  As I think the passage set out above shows, it is not the making of a will, per se, or even the making of two wills, per se, which severs the joint tenancy, it is the agreement between the joint tenants to dispose of their property in a way which is inconsistent with the continued existence of a joint tenancy.[22]  I think the concession in argument was correct, there would not need to be an agreement not to revoke a reciprocal will for the making of reciprocal wills pursuant to an agreement to dispose of property held under a joint tenancy in a way inconsistent with that tenancy.  In this case there is a joint will where both parties together, obviously pursuant to an agreement, make provisions that after the death of either one of them, the survivor was only to have a life interest in the property which they hold as joint tenants.  That was inconsistent with the continued existence of the joint tenancy.[23]

[33] A will is always revocable during a testator’s lifetime.  Even a mutual will is revocable, the agreement between the parties is enforced as a matter of contract law, or in equity, not by preventing revocation of the will.[24]  It may well be then that the joint tenancy was not severed until Mr Fernando Masci’s death.  It does not matter to the outcome of this case; there was a severing at least from Mr Masci’s death. 

Executors

[34] Despite the time which has passed since Fernando Masci’s death little has occurred in the administration of the estate.  Mrs Elizabeth Masci has sold the home the subject of the provisions in the will.  This may prove problematic in light of my determinations above.  The sale proceeds are held on trust awaiting determination of the disputes between the parties.  There is a correspondence which illustrates that Mr Graham Masci and Ms Susan Day cannot co-operate as executors of the will.  Mr Graham Masci seeks to have Ms Day removed as executor and Mrs Elizabeth Masci seeks the removal of both executors and the appointment of an independent administrator, a solicitor, who will charge for work administering the estate on the Supreme Court scale.

[35] I have power to remove an executor pursuant to s 6 and possibly s 52(2) of the Succession Act, ss 5 and 80 of the Trusts Act and pursuant to my inherent powers because the administration of this estate will be prevented by the inability of the two people appointed executors to cooperate.[25]  I am concerned that this judgment will not put an end to all the potential disputes between the parties.  A paid administrator would be a significant imposition on what will remain of the funds of the estate after this litigation.  I am conscious that even if an unpaid executor is left in charge of the estate, they will need to consult lawyers because of the complexity of the problems still to be dealt with, and that legal costs will therefore necessarily be incurred in any event.  Nonetheless I do favour that latter course.  My decision is to remove Susan Day (Camm) as executor and leave Mr Graham Masci in sole charge of the estate.  I do not think that either Mr Graham Masci or Ms Day have acted perfectly until this point.  Nor am I inclined to find that either has acted in any way which is not understandable in all the circumstances.  Nonetheless, they cannot cooperate and I must make a choice between them.  In the end I prefer Mr Graham Masci because I think he is more likely to be able to act independently given that the consequences of Mrs Elizabeth Masci’s having sold the home must be dealt with.  I also think it was responsible for him to bring this application, and illadvised for Ms Day to oppose it.

[36] I would urge all the parties involved in this matter to reach some agreement as to division of what is left of the estate for, if they continue to pursue the remaining legal points, none of them will have any of the benefit which their parents intended for them.

[37] I will hear the parties as to costs.

Footnotes

[1] Wrongly called Camm in the will.

[2] Fell v Fell (1922) 31 CLR 268, 274.

[3] Smidmore v Smidmore (1905) 3 CLR 344, 354.

[4] Re Rodgers [2002] 1 Qd R 543, 546; Fielder v Burgess [2014] SASC 98, [50].

[5] Re Lowin (deceased); Perpetual Trustee Co Ltd v Robins [1967] 2 NSWR 140, 150.

[6] See Lee’s Manual of Queensland Succession Laws [17.100], and the cases cited there.

[7] See Lee’s Manual of Queensland Succession Laws [17.160], and the cases cited there.

[8] cf Re the will of Mayer [1995] 2 Qd R 150.

[9] [1990] 2 Qd R 11, 13.

[10] Williams on Wills, 8th ed, [2.2].

[11] [1930] 2 Ch 190.

[12] Theobald on Wills, 17th ed, 1‑011 – 1-013.

[13] Lee’s Manual of Queensland Succession Law, 7th ed, [2.310].

[14] (1769) 1 Dick 419; 21 ER 332; 2 Hargr Jurid Arg 273, 304.

[15] p 310 of Hargrave’s cited at p 194 of Hagger. The provenance of this longer report is given in the Hargrave’s article. It is accepted by Loughborough LC in Walpole v Orford (1797) 3 Ves Jr 402, 418; 30 ER 1076, 1084.

[16] This article is available electronically from the Supreme Court Library and there is a copy of the original kept in the rare books collection. It is both instructive and delightful.

[17] (1937) 57 CLR 666, 683-684.

[18] Codelfa Construction Pty Ltd v State Rail Authority of NSW (1981-1982) 149 CLR 345, 347, “so obvious that it goes without saying” citing Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206, 227.

[19] [2000] NSWCA 253.

[20] (1879) 11 Ch D 267 cited in Pridham v Pridham [2010] SASC 204, [67].

[21] [1914] P 192, pp 195-196, cited in Pridham, (above) [69].

[22] See Williams v Hensman (1861) 70 ER 862, 868; Sprott v Harper [2000] QCA 391 [7]-[8].

[23] cf Scott v Scott [2009] NSWSC 567, [100].

[24] See eg., In the Estate of Heys and Birmingham v Renfrew.

[25] See White J in Colston v McMullen [2010] QSC 292, [39], and on appeal, [2011] QCA 2.

Close

Editorial Notes

  • Published Case Name:

    In Re the Will of Fernando Masci

  • Shortened Case Name:

    Re Masci

  • MNC:

    [2014] QSC 281

  • Court:

    QSC

  • Judge(s):

    Dalton J

  • Date:

    25 Nov 2014

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2014] QSC 28125 Nov 2014Probate of will granted. Declared that that the joint will of Fernando and Elizabeth Masci dated 2 April 2006 was a mutual will. Declaration that a joint tenancy over property was was severed, at least from the death of Mr Masci. Declaration that the joint will gave Mrs Masci a life estate in certain land and all the monies of Mr Masci whether held in his own name or jointly with her: Dalton J.
Appeal Determined (QCA)[2015] QCA 245 [2016] 2 Qd R 42827 Nov 2015Appeal dismissed: Gotterson JA, Morrison JA, Philippides JA.

Appeal Status

Appeal Determined (QCA)

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