Newman v Predo[2022] QSC 170

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant seeks the removal of her sister, the respondent, as executor and trustee of the estate of their late mother, Sylvia May Jacobs, along with a grant of letters of administration to a solicitor, Kent William Dalziel, and associated relief. The respondent, who was not legally represented, opposes the application in all respects.
2. [2]
   Mrs Jacobs died on 29 November 2018. Her last Will was executed earlier that year on 30 January. Relevantly, Mrs Jacobs appointed the respondent as her executor and trustee and also provided that, should the respondent “be unable or unwilling to act as my Executor”, that her grandson,^[1] Christopher Beijnon, be appointed instead. Further, the Will directed that the residuary estate (after payment of all debts and testamentary expenses) be divided between Mrs Jacobs’ eight children and stepchildren as shall survive her and, if more than one, as tenants in common in equal shares. Probate of the Will was granted to the respondent on 15 April 2019.

3. [3]
   Mrs Jacobs was survived by all eight beneficiaries, two of whom are the applicant and the respondent. Of the remaining six beneficiaries, four support the removal of the respondent as executor and two do not. Five of the beneficiaries (including the applicant) agree to the appointment of Mr Dalziel as administrator. 
4. [4]
   The application is brought pursuant to s 6 of the Succession Act 1981 (Qld). It confers a wide discretion on the court to remove an executor in an appropriate case by conferring power on the court to “determine all testamentary matters relating to the … administration of the estate” and “to make … all such orders as may be necessary or convenient”. The jurisdiction to do so is both supervisory and protective.^[2] Of course, the choice of executor is that of the testator and that choice should be honoured unless there is some good reason why the chosen executor ought not continue to administer the estate.^[3] But, as to that, it should not be assumed that a testator like Mrs Jacobs could have foreseen all that has come to pass in the administration (or non-administration) of her estate since her death. The question for the court is whether removal and replacement is necessary to ensure the due and proper administration of the estate.^[4] This question must be answered by reference to what is in the best interests of persons who have an interest in the estate, including creditors and beneficiaries, and its due administration.^[5]
5. [5]
   When the application came on for hearing on 15 June 2022, the respondent asked for an adjournment, complaining that she had insufficient time to prepare. Amongst other things she asserted that the material to be relied on by the applicant contained “incorrect information”.^[6] She also asserted that she could not afford a solicitor and that she felt that she was being “railroaded”. As it turns out, the respondent was notified about the application on 16 March and personally served with the Originating Application and supporting material on 30 May. 
6. [6]
   The adjournment application was refused and the hearing proceeded. Despite the absence of any supporting material, the respondent was permitted to make a range of submissions and, when doing so, attempted to explain why the administration of the estate had not progressed. 
7. [7]
   The decision was reserved but, on 5 July 2022, an application was filed on behalf of the applicant for leave to file and read a further affidavit. This application was heard on 12 July. Leave was granted to rely on the further affidavit but, at the same time, the respondent was granted leave to file and read an affidavit under her hand dated 11 July which purported to respond to the orders sought by the applicant in the Originating Application. It was received without objection. The respondent was given another opportunity to make whatever submissions she wished to make in response to the application, and then attempted to do so.
8. [8]
   The decision was again reserved, principally to allow a proper consideration of the affidavit prepared by the respondent along with the body of material relied on by the applicant. Having done so, a clear case has emerged for the removal of the respondent as executor of her mother’s estate and the appointment of Mr Dalziel as administrator.
9. [9]
   First, what must be regarded as a reasonably straightforward estate has not been administered despite the passage of over three and a half years. In response to this application, the respondent offered a wide variety of excuses for this delay but the fact remains that the principal asset of the estate – her mother’s home in Bellara on Bribie Island – has not been sold, or even properly marketed for sale.^[7] Over her time as executor, the respondent has engaged (or consulted) over a half dozen solicitors to assist her before, in each case, parting ways. Indeed, at the time when the application first came on for hearing the respondent had resorted to consulting a community lawyer whom, the court was told, was only available once each week. The respondent maintained that she had been intent on preserving the estate by avoiding unnecessary legal costs and protested that she had “financial issues”. However, if ever there was an estate (even despite its modest size) requiring a competent solicitor to assist in its due administration, it is this one and, of course, the costs incurred would be payable from the estate in any event. The respondent has well-demonstrated her inability to administer the estate without such assistance but she seems incapable of securing appropriately qualified help on any lasting basis. Furthermore, because of the inordinate delay in the administration of this estate, it may now very well be that capital gains tax will be payable when the Bellara property is sold, a liability that would not have arisen had the property been sold (or occupied by a person entitled under the Will to occupy it) within two years of Mrs Jacobs’ death. In a similar vein, there is no evidence that any tax returns for the estate have been prepared for the 2019, 2020 or 2021 financial years, let alone lodged.
10. [10]
    Second, the respondent has refused to provide a proper account of the estate despite several requests for such information having been made on behalf of some of the beneficiaries. Instead, like the content of various communications in evidence before the court between the respondent and the other beneficiaries (or those acting for beneficiaries), requests of that kind were summarily rebuffed. Apart from an estimate provided by the Public Trustee in December 2018^[8] and a draft document circulated between beneficiaries in the following year, the net value of the estate remains a mystery. Although five interim distributions have been made to the applicant,^[9] the last of which was in June 2021, it is unclear whether the proceeds of a claim for damages for personal injuries that was commenced on behalf of Mrs Jacobs and resolved after her death had been brought to account.^[10]
11. [11]
    Third, a review of email and other correspondence authored by the respondent, the contents of her affidavit and the conduct she displayed towards the applicant’s solicitors in response to this application as well as her attitude to the court (and court staff) leaves me in no doubt that she is singularly unsuited to the office of executor. When challenged, the respondent frequently resorts to outlandish accusations and, on occasion, outright threats. In my view, the respondent is completely lacking insight into the nature of her role as executor or how the duties of executor should be performed. To provide just one example, in the respondent’s affidavit, when attempting to deal with the allegation that she had refused to hand over a copy of documentation regarding the administration of the estate, this appears:

“As it is Queensland law, I will not be giving any papers/receipts to anyone, they might go missing by some of them! The beneficiaries will receive bank statements over this weekend. I will be keeping all papers for the 7 years that is required. Also, they will be required for future legal issues.”

12. [12]
    Last, perhaps the only submission of substance advanced by the respondent was to the effect that the estate is nearing completion. In competent hands, that is probably true. There is very little to do to market the Bellara property and, once sold, that should quickly result in the affairs of the estate being finalised. However, I have no confidence that the respondent can or will do that. Shortly stated, her removal and replacement is necessary to ensure the due and proper administration of the estate and will serve the best interests of the beneficiaries whose beneficial interests may have already been substantially depleted by reason of the respondent’s inaction.
13. [13]
    For these reasons, an order will be made removing the respondent as executor of her mother’s estate.
14. [14]
    As to her replacement, that should be Mr Dalziel. He is independent, competent, and willing to act. It is undesirable that the respondent be replaced by her son (Mr Beijnon), that is to say, the person appointed as executor under the Will if the respondent was unable or unwilling to act.^[11] His appointment would do little to quell the acrimony that has developed between the respondent and some of the beneficiaries since their mother’s death and would, for that reason alone, be most unlikely to facilitate the due administration of the estate.
15. [15]
    The respondent having unsuccessfully opposed this application should pay the applicant’s costs to be assessed on the standard basis. However, it would be wrong to leave the applicant out of pocket in circumstances where she was forced to advance this most necessary application in the interests of all beneficiaries. It will therefore be ordered that the difference between the applicant’s costs assessed on an indemnity basis and the costs to be paid by the respondent should be paid from the estate.