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Re Franks[2021] QSC 134

SUPREME COURT OF QUEENSLAND

CITATION:

Re Franks [2021] QSC 134

PARTIES:

JENNIFER EILEEN HUNTER

(Applicant)

v

PETER JOHN FRANKS

(Respondent)

FILE NO/S:

BS 3470 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2021

JUDGE:

Jackson J

ORDER:

  1. The applicant and the respondent are removed as executors of the will of William Harry Franks deceased.
  2. Subject to the formal requirements of the Registrar, a grant of letters of administration with the will dated 29 January 2018 issue to Renee Anne Bennett, as administrator.
  3. Pursuant to r 638(5) of the Uniform Civil Procedure Rules 1999 (Qld), the remuneration of the administrator and her firm, Wilson/Ryan/Grose Lawyers is fixed, such remuneration to be assessed by an independent costs assessor pursuant to the Supreme Court Scale as varied from time to time on the indemnity basis with the fees to be assessed at approximatively two monthly intervals and upon the completion of the administration or the appointment.
  4. All property of the deceased vest in the administrator as administrator of the estate and be deemed to have so vested on the date of the deceased’s death.
  5. Renee Anne Bennett as administrator be registered as proprietor of any real property of the deceased pursuant to s 114 of the Land Title Act 1994 (Qld).
  6. All documents in the possession or control of the applicant and the respondent relevant to the estate or any issue remaining outstanding in respect of the estate shall be delivered to the administrator within fourteen (14) days of this order.
  7. The administrator is directed and authorised to sell any or all assets in any order as she deems appropriate and necessary to complete the administration of the estate and to pay estate liabilities.
  8. The administrator has liberty to apply for directions concerning the administration of the estate.
  9. The applicant’s costs of the proceeding be paid from the estate on the indemnity basis.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – DISPUTES BETWEEN PERSONAL REPRESENTATIVES – where William Harry Franks died on 14 July 2020 and apparently left a last will dated 29 January 2018 – where the will appointed two of the testator’s children, being the applicant and the respondent, and the testator’s sister, Patricia Mary Cook, as executors – where Ms Cook renounced her role as executor on 17 February 2021 – where the executors have been unable to agree on the administration of the estate under the will to date – where the solicitors engaged to progress the administration were unable to obtain joint instructions from the executors – where there has been no agreement as to how to fund the expenses of the estate, including the defence of the application brought by a beneficiary for further provision from the estate – whether the executors should be replaced by an independent administrator

Succession Act 1981 (Qld), s 6

Baldwin v Greenland [2007] 1 Qd R 117, cited

Chesney & Anor v Tognola & Anor [2011] QSC 340, cited

Mann Jnr v Grantham [2004] VSC 156, cited

Re Flavel; Application by Lipshut [2018] VSC 228, cited

Re McLennan [2018] QSC 124, cited

COUNSEL:

C Brewer for the applicant

S Forrest for the respondent
Terrence Franks in person
Denis Franks in person

SOLICITORS:

South Geldard Lawyers for the applicant
Rostron Carlyle Rojas Lawyers for the respondent

  1. [1]
    This is an application under s 6 of the Succession Act 1981 (Qld) for the removal of the two remaining executors of the will of William Harry Franks and for the grant of letters of administration with the will to an independent administrator.
  2. [2]
    The testator died on 14 July 2020, apparently leaving a last will dated 29 January 2018.  The will appointed the applicant, Jennifer Eileen Hunter, the respondent, Peter John Franks, and Patricia Mary Cook as executors.  Ms Cook has renounced office as a personal representative, leaving the applicant and the respondent as the remaining executors. 
  3. [3]
    The will has not been proved to date.  To date the executors have been unable to agree on the administration of the estate under the will.  Because of the disagreements and conflicts to date, the applicant applies for their replacement as executors by an independent administrator.
  4. [4]
    If the applicant and respondent are to be replaced as executors, there is no dispute as to the appointment of the proposed independent administrator.  The question to be resolved is whether the executors should be replaced.  The applicant submits they should because they are unable to agree or conduct the administration effectively and efficiently.  The respondent submits they should not be replaced because any disagreements to date do not mean that they are unable to act jointly as executors to administer the estate from now on. 
  5. [5]
    The testator was survived by a sister (Ms Cook), five adult children and a number of grandchildren.  In all, there are 31 beneficiaries named in the will.  All but the five children are the beneficiary of a $1,000 pecuniary legacy. 
  6. [6]
    The substance of the estate was divided among the five children by the following gifts:

“4. I GIVE the interest I own in the Blackbutt property namely Lot 100 on RP229658 County of Cavendish, Parish of Taromeo (Certificate of Title 17373043) (“THE BLACKBUTT PROPERTY”) as follows:-

a) 37.5/100ths to my Daughter the said JENNIFER EILEEN HUNTER provided she survives me for a period of thirty (30) days, for herself absolutely;

b) 37.5/100ths to my Son the said PETER JOHN FRANKS provided he survives me for a period of thirty (30) days, for himself absolutely; and

c) The remaining 25/100ths to the DENIS HARRY FRANKS TRUST.

d) SHOULD the Blackbutt property be sold prior to my death THEN I GIVE the proceeds of any bank accounts to which the proceeds are deposited to be divided as set out in clause 4 of this my Will.

5. I GIVE the Crystal Items at the property situated at 19 Jacaranda Drive, Stanage Bay, that I own at the time of my death to my Son the said PETER JOHN FRANKS provided he survives me for a period of thirty (30) days, for himself absolutely;

6. I GIVE the following properties I own at the time of my death to my Son TERRENCE JAMES FRANKS, provided he survives me for a period of thirty (30) days, for himself absolutely:-

i. The property and improvements known as “Stewarts”, Ridgelands Road, Alton Down in the State of Queensland together with the benefit of all crops growing or stored thereon being Lot 1788 on CP LN40562 in the County of Livingstone Parish of Karkol contained in Certificate of Title 30060111, Lot 838 on CP LN40580 in County of Livingstone Parish of Karkol contained in Certificate of Title 30338172, Lot 104 on CP LN288 in the County of Livingstone Parish of Karkol contained in Certificate of Title 50347757 and Lot 109 on CP LN333 in the County of Livingstone Parish of Karkol contained in Certificate of Title 50347758;

ii. The benefit of any irrigation permit and water licences relating to my property “Stewarts”, Ridgelands Road, Alton Downs in the said State;

iii. All irrigation plant and equipment located at my property “Stewarts” Ridgelands Road, Alton Downs in the said State;

iv. My large air compressor and air powered post driving equipment;

v.  My 240 volt stick welder;

vi. My Toyota Land cruiser wagon registration number 674BNJ;

vii. My car trailer registration number OPI490;

viii. My freezers situated under the house at Wedel Road, Alton Downs;

ix. My large blue plastic 1000 Litre Nylex ice box; and

x. My Fiat wheel tractor.

7. I GIVE to my Son the said DAVID WILLIAM FRANKS the following, provided he survives me for a period of thirty (30) days, for himself absolutely:-

i. My 240 volt magnetic drilling machine; and

ii. All my right title and interest in shares held in my name in listed public companies at the date of my death.

8. I GIVE to my Son the said PETER JOHN FRANKS the following, provided he survives me for a period of thirty (30) days, for himself absolutely:-

a) All my right title and interest in my property and improvements at Wedel Road, Alton Downs in the said State being Lot 102 on SP120227 in the County of Livingstone Parish of Nicholson contained in Certificate of Title 50345453 together with the benefit of all crops growing or stored thereon;

b) The benefit of any irrigation permits or licences and water licences attaching my property at Wedel Road, Alton Downs;

c) My irrigation equipment including pumps, motors roll lines and hand lines located at my property at Wedel Road, Alton Downs;

d) All my right title and interest in my property at Wedel Road, Alton Downs being Lot 3 on RP 861291 in the County of Livingstone Parish of Nicholson contained in Certificate of Title 50064646 together with the benefit of all crops growing or stored thereon and all household furniture owned by me and located at this property;

e) All my right title and interest in Water allocation 66 on CP AP6829 contained in Title Reference 46001853;

f) All my right title and interest in Water allocation 67 on CP AP6829 contained in Title Reference 46001852;

g) My hand tools located at my properties at Wedel Road, Alton Downs;

h) My Fiat-Allis AT14C bull dozer and blades, rippers and accessories;

i) My versatile 160 tractor with forklift and other accessories;

j) My ezy-on heavy offset tandem disc plough;

k) My Covington planters;

l) My miscellaneous farming equipment located on my properties at Wedel Road, Alton Downs;

m) All my right title and interest in the livestock and brands I own at the time of my death;

n) My cedar dining table and chairs in my house at Jacanda Drive, Stanage Bay;

o)  My small red cedar table presently in my house at Jacaranda Dive, Stanage Bay;

p) My lead light China cabinet and its contents presently in my house at Jacaranda Dive, Stanage Bay;

q) My old desk previously owned by my Father presently in my house at Jacaranda Dive, Stanage Bay;

r) My large picture of a sailing ship located at my property at Jacaranda Dive, Stanage Bay; 

s) All crystal items gifted to me by my Son the said PETER JOHN FRANKS; and

t) Four (4) fishing winches set up on rods and located at Stanage Bay.

8. I GIVE to the DENIS HARRY FRANKS TRUST the following:-

a) Subject to clause 3 of this my Will and after payment of my debts funeral taxation and estate administration expenses the balance of all monies be held in my bank accounts including bank deposits:-

b) My UD Truck;

c) My truck mounted crane and stock crate;

d) My three (3) cabinets made for me by my Son DENIS HARRY FRANKS;

e) My TAG Trailer; and

f) My Caterpillar bulldozer model no. D4K product identification no. CATOOD4KPMMM00287.

8. I GIVE the following to the said PETER JOHN FRANKS, DAVID WILL FRANKS, TERRENCE JAMES FRANKS and the DENIS HARRY FRANKS TRUST and in more than one in equal shares as tenants in common:-

i. All my right title and interest in my property situated at Jacaranda Drive, Stanage Bay, being Lot 19 on CP PS173 in the County of Palmerston Parish of Torilla contained in Certificate of Title 30607175;

ii. My hands (sic) tools located at my property at Jacaranda Drive, Stanage Bay;

iii. My boat “Time Keeper” registration number LU999Q, hull serial number ERE 8500;

iv. My unregistered boat trailer including my electric equipment, echo sound radio chart plotter and safety equipment;

v. My fishing rods, reels, hand lines, hand winches, Alvey electric winch and electric rod and reel and any other fishing equipment (with the exception of those items given to my Son the said PETER JOHN FRANKS in clause 8.xx) hereof;

vi. All my right, title and interest in fishing licence FXCR;

vii. My household furniture in the house at Jacaranda Drive, Stanage Bay except the items specifically bequeathed elsewhere in this my Will; and

vi. My freezers in the shed at my property at Jacaranda Drive, Stanage Bay.

9. I GIVE the balance of my estate to my Trustees UPON TRUST to sell it or otherwise convert it into money with power in their discretion to postpone such sale calling in and conversion for such time as my Trustee may in their absolute discretion decide. My Trustees will hold the balance (“my residuary estate”) upon the following trusts:-

a) Equally for such of the said PETER JOHN FRANKS, the said DAVID WILLIAM FRANKS, the said JENNIFER EILEEN HUNTER, the said TERRENCE JAMES FRANKS and THE DENIS HARRY FRANKS TRUST as shall survive me for a period of thirty (30) days; and

b) If any of my Children fail to survive to attain a vested interest, then the share of my deceased Child shall pass equally between the Children (if any) of my deceased Child, provided the said Grandchild survives me for a period of thirty (30) days and attains the age of twenty-one (21) years”.

  1. [7]
    The respondent’s estimate of values of the estate property is as follows: 

Assets

Asset

Value

151 Cameron Road, Taromeo QLD 4314

$700,000.00 (by Yarraman Real Estate)

4 Wedel Road, Alton Downs QLD 4702

$250,000.00 for the house and 2.5 acres. If the sale includes the irrigation block, then it is valued between $800,000.00 - $850,000.00

Irrigation licence for irrigation farm Wedel Road, Alton Downs QLD 4702

$217,800.00 ($1,650.00 per megalitre)

85 Cranston Road, Alton Downs QLD 4702

$1,200,000.00 - $1,500,000.00

3 Jacaranda Drive, Stanage Bay QLD 4702

$340,000.00 - $400,000.00

Boat – Timekeeper

$50,000.00 referred to in Jenny’s affidavit

Shares

See Jenny’s affidavit

Commercial fishing licence

FXCR $87,000.00 plus GST

Fiat Allis 14C bulldozer (including stick rake, rippers, tree spear, angle and tilt blade, bull blade, full length scrub canopy)

Approximately $25,000.00 - $30,000.00 (I spoke with Andrew Tilley of Tilley Parts, Toowoomba)

Scrub pulling chains and accessories for Fiat 14C bulldozer

Approximately $3,000.00

Seabrook planter, accessory for Fiat Allis 14C bulldozer.

(Dad paid approximately $2,200.00 for the planter and it is still in good condition)

Approximately $1,200.00

Large tandem ezy-on offset plough

Approximately $8,000.00 - $10,000.00 (I spoke with Goebbels Farm Equipment, Dalby)

Versatile 160 tractor (older tractor)

Approximately $7,000.00

2x Covington inclined plate planters on tool bar, with disc openers and assorted seed plates

Approximately $400.00

MIG welder

Approximately $100.00

Electrical generator

(Dad paid $650.00 for generator)

Approximately $400.00

Miscellaneous hand tools on Wedel Road, Alton Downs property

Approximately $100.00

Irrigation equipment on Wedel Road, Alton Downs property (including roll lines and accessories including hydrant caps)
(mostly in very poor repair, hand irrigation lines in mostly poor repair, 2 electric motors and pumps, diesel motor and pump)

Approximately $4,000.00

Miscellaneous farming equipment on Wedel Road, Alton Downs property, including very old mid mounted fertiliser spreader, wire winder, furrow openers, disc coulters on swivel frames, very old cultivator in very poor repair, old wallaby jack, fuel tank on trailer

Approximately $200.00

Toyota Landcruiser wagon former registration number 674BNJ

(Dad was offered relatively recently $5,000.00 a couple of times for this vehicle)

Approximately $5,000.00

240-volt stick welder

Unknown

Large air compressor with petrol motor with air powered post driver

Approximately $1,200.00

Car trailer with former registration number OPI490 (trailer older in poor condition)

Approximately $200.00

Old Fiat wheel tractor

Approximately $1,200.00

Hodge offset disc plough (old)

Approximately $800.00

240-volt magnetic drill (quite old)

Approximately $200.00

Nissan UD truck 8x4 (very old)

Almost nil value

Stock crate for the above-mentioned Nissan UD truck (very old)

Almost nil value

Truck mounted crane mounted on above-mentioned Nissan UD truck (very old)

Almost nil value

Caterpillar D4k

Approximately $90,000.00 (Denis Franks compared details and prices in machinery for sale magazines)

Tag trailer

Approximately $5,000.00 (Denis Franks)

4 Miya Epoch electric fishing reels mounted on heavy rods and with spider line (I brought these and gave them to Dad)

Approximately $3,000.00

1000 litre Nylex plastic ice box

Approximately $200.00

Cedar dining table and chairs (table has large burn mark on top) at Stanage Bay property

Approximately $800.00

Small red cedar table at Stanage Bay property

Approximately $50.00

Lead light cabinet (very old and needs some repairs) at Stanage Bay property

Approximately $80.00

Contents of lead light cabinet (various items of china, glass and other materials) at Stanage Bay property

Approximately $100.00

Old desk previously owned by Harry S Franks, father of William Harry Franks, (very high sentimental value) at Stanage Bay property

Approximately $80.00

Large picture of sailing ship at Stanage Bay property

Approximately $30.00

Crystal items that I gifted to Dad at Stanage Bay property

Approximately $100.00

3 double beds, 2 single beds, mattresses, bedclothes, rugs, 2 bedside cabinets, lounge suite, cabinet, washing machine, micro wave oven, fridge, crockery, saucepans, cutlery, small kitchen electrical items at Stanage Bay property

Approximately $3,000.00

Double bed, 2 bedside cabinets, single bed, lounge suite, vacuum cleaner, 2 working washing machines, kitchen cabinet, tool cabinet, table and chairs, china crockery, saucepans and other items at Alton Downs property

Approximately $1,200.00

Electric freezer under house at Alton Downs property

Approximately $200.00

Number of Alvey hand reels on rods, hand fishing lines and boat winches

Approximately $500.00

Alvey electric fishing reel

Approximately $250.00

Electric fishing reel mounted on rod with spider line

Approximately $500.00

Safety equipment for timekeeper boat (inflatable boat, new in box – unused. Cost over $2,000.00 several years old)

Approximately $1,000.00

Navigation equipment, GPS, radar and depth sounder for timekeeper boat

Approximately $1,500.00

Drill press, drill bits, air compressor, hand tools, hand vice, grease-gun, hand saw, and other miscellaneous items

 Approximately $500.00

  1. [8]
    As can be seen, the estate did not have any significant cash or liquid assets.  Initially, the then three executors engaged Bressington & Partners Solicitors in Rockhampton (“Bressington”) to act for them in the administration. 
  2. [9]
    By 22 September 2020, the then three executors agreed that all communications to Bressington should be joint and made in writing.  Bressington were not able to obtain joint instructions to progress the administration.
  3. [10]
    On 9 February 2021, Bressington advised the executors as they had not been able to agree or provide instructions to administer the estate that they would close the file.
  4. [11]
    On 25 March 2021, the applicant filed this application. 
  5. [12]
    To date, nothing has progressed on joint instructions of the executors since the beginning of the year.
  6. [13]
    One of the initial disputes between the then three executors concerned the applicant and Ms Cook’s access to the deceased’s documents held by Bressington.  On 17 December 2020, the respondent sent an email to Bressington stating that he could not see what relevance the documents had in relation to the performance of the duties of the executors.  He would not agree to the applicant or Ms Cook seeing the documents and stated that, in his belief, they were exceeding their authority unless they could clearly demonstrate to him that all executors needed to have the documents for the performance of their duties.  The relevant documents included the testator’s views expressed in a statutory declaration as to the reasons for dispositions made under his will to David Franks. 
  7. [14]
    Another early area of disagreement between the then three executors concerned the funding of the administration of the estate.  The applicant proposed that a particular estate asset be sold and Ms Cook agreed.  The respondent disagreed.  The applicant and Ms Cook proposed that $8,000 to be received from the National Australia Bank be used to pay insurance on estate assets.  The respondent disagreed.  No agreement was reached as to how anything was to be funded going forward, in circumstances where there were estate debts to be paid.  Those debts then included unpaid rates on estate lands and unpaid insurance premiums.
  8. [15]
    At no stage did then then three executors or the remaining two executors open an estate bank account.
  9. [16]
    On 15 December 2020, David Franks gave notice to the then three executors of his intention to apply for an order under s 41 of the Succession Act 1981 (Qld) that further provision be made out of the estate for him. 
  10. [17]
    On 13 April 2021, David Franks filed an application for further provision.  At this stage, no step has been taken in the proceeding.  The executors have not instructed lawyers.
  11. [18]
    Apart from David Franks’ claim, there are other issues or disputes between the testator’s children, all of whom are beneficiaries under the will. 
  12. [19]
    On 7 December 2020, Denis Franks wrote to the then three executors stating that he did not consent to the sale of property or assets in which he had been bequeathed an interest in order to pay outstanding debts of the estate.  He proposed that he would pay a proportionate share of the outstanding debts and expenses based on his percentage entitlement to the estate which would need to be confirmed by a valuation of the relevant properties. 
  13. [20]
    On 27 December 2020 and 2 January 2021, the applicant proposed by email that the testator’s children meet to attempt to arrive at agreement of their differences or disputes.
  14. [21]
    On 3 January 2021, Denis Franks sent an email to the applicant saying that he would not be attending the meeting and would not agree to any arrangement other than what was contained in the will.
  15. [22]
    On 3 January 2021, the respondent sent an email to the applicant saying that he too would not attend the meeting on the ground that he considered his duties as executor were to uphold the will.
  16. [23]
    On 6 January 2021, the respondent sent an email to the applicant, Ms Cook and Bressington proposing that the beneficiaries named in the will as the sole beneficiaries to particular properties pay the whole of the insurance for those properties and offered to personally set up a bank account to receive funding from the relevant beneficiaries to facilitate the payment of insurance premiums. 
  17. [24]
    On 17 February 2021, after Bressington declined to act further and the applicant gave notice of her intention to bring an application concerning the administration of the estate, Ms Cook renounced her right to probate and as executor of the will.
  18. [25]
    There has been no agreement, or even any proposal, apart from those stated above for the manner in which the estate is to secure funds to meet its liabilities and its administration costs, including defence of the proceeding started by David Franks for further provision from the estate.
  19. [26]
    The applicant believes that given the history described above and the issues likely to be in dispute, it would be in the interests of all the beneficiaries of the estate for someone independent to be responsible for its administration.  She states that the conflict to date has created a situation which makes it impossible for the executors or either of them to conduct the administration effectively and efficiently. 
  20. [27]
    The respondent opposes the appointment of an independent administrator.  He says that he wishes to respect the testator’s wishes that he and the applicant be executors of the estate and expresses concern about the cost of an independent administrator. 
  21. [28]
    The respondent says that despite “some disagreements… the administration of the estate has progressed”.  The steps he identifies are:
    1. (a)
      location of the will;
    2. (b)
      arrangement of the deceased’s funeral and payment of it; and
    3. (c)
      engagement of Bressington.
  22. [29]
    These matters seem to be uncontentious although not significant in the scale of what needs to be done.
  23. [30]
    As well, he says that the estate’s assets have been identified, located and market appraisals have been obtained, that insurance on all the properties has been arranged and the premiums paid and all outstanding debts of which he is aware have been identified and paid.  He says that all ongoing expenses of which he is aware are paid and up to date including property rates, water rates, irrigation, power supply, account insurance premiums and electricity amounts.
  24. [31]
    A surprising aspect of those statements is that there is no dispute that these matters have not been attended to by the executors jointly.  On the contrary, it appears that whatever has been done has been done by the respondent unilaterally and in the face of this application.
  25. [32]
    It is surprising, therefore, that he contends that the executors can be expected to act jointly.  On the face of it, he has not even asked the applicant to act jointly in respect of any of the specified matters.  As mentioned previously, there is not even a joint account of the executors at a bank. 
  26. [33]
    In response to the Court’s query of the respondent’s counsel about how these matters have been attended to, the response was that payments have been contributed by the beneficiaries of the particular assets to which the relevant liabilities related.  In other words, the respondent has unilaterally followed the course he favoured earlier in the year and without further reference to the applicant.
  27. [34]
    The respondent also says that the testator’s taxation position has been considered and refers to tax losses to which the testator was entitled at the time of his death.  Again, that appears to be a matter that has been attended to by the respondent without reference to the applicant as joint executor. 
  28. [35]
    Lastly, the respondent says that Terrence Franks has dealt with the Rockhampton Regional Council’s Property Pest Control Officer in relation to a program for control of the noxious weeds on properties forming part of the estate and that Terrence Franks has already commenced that program.  Again, that was done without reference to the applicant as joint executor.
  29. [36]
    As to proof of the will, by this application the applicant seeks for the appointment of an independent administrator with the will annexed.  The respondent says that, if the executors receive legal advice that they should apply for a grant of probate, he does not think there would be any difficulty in working together to do so.  To date, however, he has not done anything about that question. 
  30. [37]
    When questioned by the Court as to why the steps described above have all either proceeded or been carried out by or on behalf of the respondent as executor without reference to the applicant, the respondent’s counsel said that the existence of this application had contributed to the breakdown of the relationship or mistrust between the parties.  Perhaps it has, but the respondent’s conduct still evidences the significance of that breakdown and the inconsistency between the respondent’s stated opinion that he and the applicant will be able to work together as executors on the one hand and his actions as executor to the exclusion of the applicant as a matter of fact on the other hand. 
  31. [38]
    As to David Franks’ application for further provision from the estate, the respondent agrees with the applicant that there are likely to be disagreements among the beneficiaries about that claim, yet considers that he and the applicant are not incapable of working cooperatively with the benefit of legal advice to discharge their duties as executors.  However, as yet they have been unable to make any agreement as to how to fund any of the estate’s liabilities, let alone the likely significant legal costs of defending or otherwise resolving David Frank’s application for further provision.
  32. [39]
    Tellingly, in dealing with his inability to agree with the applicant as to the payment of the expenses for the estate, the respondent says that the disagreements were resolved “successfully” because “after some discussion, Terry, Denis and I each agreed to pay the expenses for the assets left to each of us”.  In other words, the respondent says that the inability of the applicant and him to agree how to fund the estate’s liabilities was “successfully” resolved because he adopted an alternative unilateral course not authorised by the applicant as his co-executor and not otherwise within his authority as executor. 
  33. [40]
    In response to the respondent’s statements, the applicant states that:
    1. (a)
      despite the confidence expressed in the respondent’s affidavit of 24 May 2021 that the applicant and the respondent will be able to work together, that is not something the respondent had said before that affidavit was made and served;
    2. (b)
      she was not aware of any steps being necessary to locate the 2018 will because it was always held in safe custody by the executors’ former solicitors;
    3. (c)
      although some of the appraisals that had been obtained as to the value of estate assets were obtained by her, some of the values reflected in the respondent’s statement of assets are not appraisals previously seen by her and are not appraisals on which she and the respondent have acted jointly.  She does not agree with some of the values recorded in the respondent’s statement of assets for plant and equipment, which she states appear to be the respondent’s estimates;
    4. (d)
      she considers there are issues requiring investigation such as amounts owing by Peter Franks and Terrence Franks to the estate and rent owed by a third party to the estate, which have not been engaged with adequately to date;
    5. (e)
      there was no resolution of the disagreement between her, Ms Cook and the respondent as to the payment of insurances;
    6. (f)
      at the time of filing her application, rates on the testator’s properties had not been paid and were in the hands of debt collectors.  She was not aware of any such liabilities having been paid since and did not act jointly with the respondent nor had the respondent informed her of any such steps before service of his affidavit sworn on 24 May 2021;
    7. (g)
      no arrangements have been made for future liabilities of the estate including legal costs, accounting costs or cash payments to be made to the beneficiaries;
    8. (h)
      she is not aware of the amount that is held as estate funds in trust by Bressington, although on 12 February 2021 those lawyers requested $10,000 be deposited into trust in anticipation of legal costs;
    9. (i)
      the respondent has not raised any question of the estate’s taxation position with her;
    10. (j)
      although the issue of weed control was raised at a family meeting, Terrence Franks, who owns property sharing a boundary with estate property, agreed to address the issue and she was not aware of the issue requiring any further attention of the estate;
    11. (k)
      she considers that the respondent has expressed concerns about her attitude towards her responsibilities as executor in relation to the application brought by David Franks for further provision and that she has concerns about his attitude as well; and
    12. (l)
      she disagrees with a number of assertions made in paragraphs 23 to 28 of the respondent’s affidavit sworn on 24 May 2021 as being factually incorrect, but in any event considers that they reflect the likelihood of continuing disagreement or issues between the existing executors, even as to the extent to which the administration of the estate has progressed so far. 
  34. [41]
    Both Terrence Franks and Denis Franks swore affidavits and made submissions stating that they did not believe there was any need for appointment of an administrator and expressing preference for the applicant and respondent to remain as co-executors.  Each of them expressed the belief that the applicant had tended to exaggerate any difficulties that have occurred in the administration of the estate. 
  35. [42]
    I do not agree with that view.  Neither of them had any proposal or suggestion that there was any proposal by which the application made by David Franks for further provision from the estate could be dealt with or that cash funds would become available to the estate to instruct lawyers to deal with the application. 
  36. [43]
    Further, each of them purported to swear their affidavit on the basis that their children who are beneficiaries supported their position.  I note that each of those children is only interested in the assets of the estate as a beneficiary to the extent of a $1,000 pecuniary legacy.  Against that, approximately 13 other of the beneficiaries of the estate support the applicant’s position, although each of those beneficiaries too is only interested in the estate to the extent of a $1,000 pecuniary legacy.
  37. [44]
    There is no dispute as to the legal question to be answered in deciding the present application.  At the highest level, the question is what is in the best interest of persons who have an interest in the estate, including creditors and beneficiaries and its due administration.  Although a conflict between personal representatives is not determinative per se,[1] there is no precondition of default on the part of the executors or one of them before the power under s 6 can be exercised.  Due regard must be paid to the testator’s wishes as to the identity of his executors and trustees.[2]  But it would be a mistake to assume that a testator who made a will where potential disputes among beneficiaries might arise should be taken to have anticipated such disputes among those of the beneficiaries he appoints as executors.
  38. [45]
    The obvious personal interests of each of the actors in the present case is likely to affect and to have affected the positions that they adopt.  None of them has been shown to have acted in the interests of the estate irrespective of their own personal interest.  As well, the concerns raised by the applicant include the possibility of conflict of interest between the respondent as executor and his personal interests in respect of potential liability to the estate.
  39. [46]
    Apart from the weight that might be accorded to the testator’s wishes generally, it should be observed that one of the executors has already renounced due to the internal conflicts among them.  Further, it is to be noted that although the respondent urged upon the Court that he and the applicant would be able to agree as to the future administration of the estate, he did not wish for the Court to make an order referring the matter to mediation so that any of the existing possible disputes might be explored and resolved before this application is decided.
  40. [47]
    There are a number of other cases that have concerned conflict or disputes among beneficiaries and executors.[3]  In the end, each case must turn on its own facts. 
  41. [48]
    In the face of the conflict to date and the differing personal interests that appear to have affected the conduct of the applicant and the respondent and the absence of any likely agreement as to funding of the expenses of the estate, including the defence of David Franks’ application for further provision from the estate, there is likely to be benefit in an independent administrator who will not need the agreement for joint action and who will not be compromised by conflicts of interest or personal interest. 
  42. [49]
    In these circumstances, the countervailing factor of the testator’s wishes as to the identity of his executors should, in my view, give way.  The additional negative factor of the expense to the estate of an independent administrator is acknowledged.  However, at present there is no apparent practicable process by which the remaining executors appear to be able to take the administration of the estate forward by agreement, particularly in the absence of any proposal that may be agreed as to funding the expenses of the estate in defending David Franks’ application for further provision. 
  43. [50]
    In those circumstances, in my view, it is appropriate to make the orders sought by the application. 

Footnotes

[1] Chesney & Anor v Tognola & Anor [2011] QSC 340, [7]-[15].

[2] Baldwin v Greenland [2007] 1 Qd R 117, [44].

[3] Re Flavel; Application by Lipshut [2018] VSC 228, Re McLennan [2018] QSC 124 and Mann Jnr v Grantham [2004] VSC 156 are examples.

Close

Editorial Notes

  • Published Case Name:

    Re Franks

  • Shortened Case Name:

    Re Franks

  • MNC:

    [2021] QSC 134

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    10 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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