Plath (as executor) v Plath[2022] QSC 108

SUPREME COURT OF QUEENSLAND

1. [1]
   Marilyn and Alfred Plath had a family of seven children. The applicant, Alexis Plath, is the second eldest of the Plath children and the respondent, Ira Plath, is the third eldest of the Plath children. By her last will and testament executed 7 May 2010,^[1] Mrs Plath appointed Alexis and Ira as her executors. Under her will, Mrs Plath bequeathed a parcel of land to each of her six youngest children from her large allotment at Woodgate. The large allotment required subdivision which commenced on 24 June 2011 with the property achieving subdivision on 15 April 2015.^[2] Mrs Plath’s will also made provision in respect of her other substantial asset – her residence at 10 Brand Street, Childers - by providing a life tenancy in that property to her husband, Alfred, and upon termination of the life tenancy, for each of the seven children to take equal shares in the Childers property.
2. [2]
   Mrs Plath passed away on 29 September 2010 and due to the necessity of the subdivision of the Woodgate land and other complications, the estate has not been fully administered in the last 11.5 years. Mr Alfred Plath passed away on 13 June 2011.^[3] After his passing, the Plath children could not agree as to the proper course in respect of the Childers property. With two siblings, Bradley and Thaxter, desirous of having their share of the estate paid immediately the family entered into an agreement to have the Childers property valued as at 22 June 2011.^[4] Bradley and Thaxter each received their seventh share at $57,142.85 each. The agreements were formalised in a Deed of Settlement dated 9 November 2011 which provided that the remaining five beneficiaries contribute funds to enable both Bradley and Thaxter to receive their share of $57,142.85 each.^[5] That did not in fact occur, with the applicant paying all of that sum from her own funds.^[6]
3. [3]
   Alexis seeks reimbursement of that sum and generously does not seek any interest on that sum of a little over $114,000, which was in fact paid about a decade ago. After completion of payment for the substantial costs associated with the Woodgate subdivision, the Childers property was sold, with the settlement occurring on 11 July 2019. Since 11 July 2019, there has been a sum of money, currently $367,730.78 remaining in the estate. ^[7]
4. [4]
   Despite numerous attempts by Alexis to obtain her younger brother, Ira’s, consent to the distribution of the remaining funds, Ira does not agree to the distribution. Ira argues that an independent person be appointed to complete the estate as an administrator after a forensic accountant has made a thorough investigation of the estate’s finances. Ira has submitted a list of 22 questions in his letter dated 31 January 2022,^[8] querying how the estate has been administered. Alexis, by her solicitor has responded to all the queries,^[9] and has vouched for all the expenses with receipts set out in her affidavit filed 13 November 2021.^[10]
5. [5]
   It is an understatement to say there has been significant disharmony between some of the siblings in the Plath family. One such dispute involves physical violence, in which Ira alleges that his younger brother, Ondra, assaulted him with a steel bar at the Childers property. Ira’s version of the melee was that he went to the property peacefully, to perform some repair work, when he was, without provocation, attacked by his younger brother, Ondra, with a steel bar.^[11] According to Ira, after dislodging the steel bar from his brother, Ondra, Ira invited Ondra to engage in fisticuffs outside the residence, and Ondra obliged. In the melee, one of the brothers was forced into a Toyota Hilux owned by Mr Wayne Reis, a contractor who was at the house to perform work on behalf of the estate. The left-hand front guard of Mr Reece’s Hilux was damaged, with the repairs costing some $717.50.^[12] The estate paid this to the contractor employed by the estate.
6. [6]
   Question 10 on Ira’s list of questions in his letter dated 31 January 2022 relates to this issue. Ira’s complaint is that it is not properly is an estate expense, but rather the expense should be borne by Ondra as he was the aggressor. Ondra’s version is not the subject of specific material from Ondra, but rather from the letter dated 14 February 2022 sent by the solicitor of Alexis, in response to Ira’s questions, that the estate paid for the damage to Mr Reis’ vehicle as:^[13]

“Our client instructs that the damage to the vehicle was caused during an altercation between yourself, Wayne Reis, and your brother Ondra. She instructs that you pushed Ondra onto the vehicle of Mr Reis and as a result damage to his vehicle occurred.”

7. [7]
   It is unnecessary and unhelpful to embark upon enquiries as to where the respective fault lay. The quantum of damage of $717.50 cannot justify an action by the estate against Ondra or Ira to determine who is at fault and who should pay for the damage.
8. [8]
   Section 6(1) and (4) of the Succession Act 1981 (Qld) provide:

6 Jurisdiction

3. (1)
   Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.

[…]

3. (4)
   Without restricting the generality of subsections (1) to (3) the court has jurisdiction to make, for the more convenient administration of any property comprised in the estate of a deceased person, any order which it has jurisdiction to make in relation to the administration of trust property under the provisions of the Trusts Act 1973.

9. [9]
   It has been acknowledged by the Court of Appeal in Baldwin v Greenland,^[14] that the overriding object of the power in section 6 of the Succession Act is the due and proper administration of estates. I conclude in the present case that due and proper administration of the estate requires a final distribution to be made as soon as possible. The orders sought by the applicant in respect of the finalisation of the estate contain distributions based upon expenses and outgoings of the estate which have been entirely vouched. Whilst I accept that Ira has a genuinely-held suspicion that there may be some impropriety in respect of the vouched expenses and outgoings, that does not amount to proof of such conduct, and does not, without more, call for an inquiry which will delay the finalisation of the accounts.
10. [10]
    As an executor of the estate, Ira has duties at law to the due administration of the estate that is not achieved by the employment at substantial cost of a forensic accountant and the conduct of an enquiry. If Ira wishes to employ a forensic accountant at his own expense and undertake a further investigation and enquiry, then that is a matter for him, however, it ought not delay the finalisation of the administration of the estate of Mrs Plath. Accordingly, I make an order in terms of the draft as provided which finalises the estate, with the exception that costs will be awarded on the standard basis.