Dore v Cairns[2022] QSC 238

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant (Mr Dore) and the respondent (Mr Cairns) are co-executors and trustees of the estate of the late Sandra Marie Hatton.  The deceased died on 27 June 2015.  It took more than two years for a grant of probate to be made to Mr Dore and Mr Cairns.  That occurred on 11 October 2017.  Five years later (and over seven years since the deceased’s death) the estate remains unadministered.
2. [2]
   Mr Dore frankly states that Mr Cairns and he have been unable to properly communicate and progress the administration of the estate. 
3. [3]
   In order to remove the impasse, Mr Dore has filed an application in this court, seeking orders removing both him and Mr Cairns as executors and for the appointment instead of an independent administrator, a solicitor, Mr Wiedman.  Mr Wiedman has agreed to accept the appointment.^[1]
4. [4]
   The estate is a modest one, with the only assets of the estate being:

   1. (a)
      the deceased’s home at 45 Forde Street, Allora;^[2]
   2. (b)
      the contents of the property;
   3. (c)
      the proceeds of her bank accounts, which Mr Dore says were exhausted by the solicitors’ costs in the application for the grant of probate;
   4. (d)
      her motor vehicle; and
   5. (e)
      possibly, cash of about $1,000 which Mr Dore understands was in the deceased’s purse.^[3]
5. [5]
   Under the deceased’s will,^[4] she appointed Mr Cairns (her friend) and Mr Dore (her nephew) to be the executors and trustees of her will.  In the event they did not survive her for at least 30 days or “is/are unable or unwilling to so act”, the deceased nominated Geoffrey Charles Hope to be her executor and trustee.
6. [6]
   By her will, the deceased gave various gifts of specific assets to a number of named people.  This included Mr Cairns, to whom the deceased gifted assets including a ride-on mower, items in the shed, her “Subaru champagne gold car 4wd”, a camera and an electric chair.
7. [7]
   In relation to her home, the will provided:

“My residence at 45 Forde St Allora is to be sold.  Moneys received to be used for ministry work in Australia.  Funds to be placed in a trust account.  I desire Paul Raymond Cairns and Geoffrey Charles Hope to operate as Trustees for these funds.  The Trust Account will be called the Sandy Hatton Ministry Trust”.

8. [8]
   The deceased also gifted sums of money to other named people, including Mr Dore.
9. [9]
   The evidence before the court clearly establishes that the executors, Mr Dore and Mr Cairns, have not been able to progress the administration of this estate; and in fact that all communication between them has broken down.
10. [10]
    A firm of solicitors from Toowoomba, Chris Sheath & Associates, were engaged to assist in obtaining a grant of probate and administer the estate.  In July 2018, the firm wrote to both Mr Cairns and Mr Dore, saying:

“We confirm Paul’s [that is, Mr Cairns’] instructions for us not to take any further steps in the administration of the estate without his specific instructions to do so. 

It is our firm’s position that we are not able to take the matter any further.

In accordance with the terms of our Agreement with you, we will not continue to do the work and we reserve our right to terminate the Agreement if you fail to provide us with proper instructions within a reasonable time.

If there is any reason why the administration of the estate cannot proceed, please let us know.  Paul [Mr Cairns], if this is due to your health, we suggest you very carefully consider whether you are in a position to continue to act as executor. …”^[5]

11. [11]
    In late February and the beginning of March 2019, there were email exchanges between Mr Dore and Mr Cairns, which included a request from Mr Dore that they re-engage the services of Chris Sheath to complete the administration of the estate and a request from Mr Dore that Mr Cairns “please detail what your plans are as my role as executor is compromised by your actions and behaviour in not wanting to work with me”.  The responses from Mr Cairns seem to indicate he is, independently, communicating with various beneficiaries to seek their views about how the estate is to proceed.  It is clear from the emails exhibited to Mr Dore’s affidavit (to and from Mr Cairns) that they were having difficulty communicating with one another.^[6]
12. [12]
    These difficulties prompted Mr Dore to contact the Public Trustee on 4 March 2019, saying:

“I need help and I don’t know where to turn.

I’m an executor along with another person for my Aunty who passed away over 3 and a half years ago in Queensland.  I’m in Victoria.  We have probate after a prolonged and very expensive process that’s taken all her life savings ($156,000).

The other executor is refusing to work with me to complete the sale of her house, distribute items to named beneficiaries, etc. etc.  He refuses to work with the legal firm we employed so they have stopped representing us.

Are you able to complete the executor role for me or assist with removing me as an executor?  I believe once probate has been issued it’s very difficult but I cannot work with this person anymore.”^[7]

13. [13]
    The Public Trustee responded, by email on 14 March 2019, to say that it could not assist and recommending that independent legal advice be obtained.
14. [14]
    Just before the response from the Public Trustee was received, Mr Dore had written to Mr Cairns, by letter dated 12 March 2019, outlining what he thought should be done, in order to discharge their duty as executors.^[8]  Mr Cairns responded, by email on 13 March 2019, saying that he was to be admitted to Toowoomba Hospital the following day, and that once he was released “as soon as is within reason” he would respond.^[9]
15. [15]
    On the same date, 13 March 2019, Mr Cairns also sent another email to Mr Dore, in which he says:

“In an earlier email to you of today’s date, did I not state that all correspondence from now on is to be by Registered Mail Only?

Is it not true that when Registered Mail is delivered to a street address, if no-one is there to sign for the mail, the mail is taken back to the Post Office where it can be signed for and collected?

I therefore now wish to inform you that all correspondence relating to this matter, other than by Registered Mail, will not be accepted and will instead be considered null and void.

Should you attempt to contact me by any means other than Registered Mail, this action will be considered as harassment.”^[10]

16. [16]
    After receiving the Public Trustee’s response, Mr Dore sought legal advice from GE Law Services.  On 24 March 2019, Mr Dore wrote again to Mr Cairns, setting out the plan the solicitors had recommended.^[11]  In the letter, Mr Dore also said if agreement could not be reached about those steps, that he had been advised he should take steps to make an application for the removal of both of them as executors, and for the appointment of an independent administrator, noting the estimated legal fees associated with that.
17. [17]
    Mr Cairns’ only response, by email on 25 March 2019, was to say the letter sent by email was “not acceptable” because “the letter must be sent to me by Registered Post”.  Mr Cairns once again reiterated his stance that all communications had to be by registered mail, otherwise they would not be accepted and “will be treated as null and void”.^[12] 
18. [18]
    The address at which Mr Cairns demanded correspondence be sent – by registered mail – is the address of the deceased’s home at Allora.  Mr Dore says in his affidavit:

“As can be seen from communications received from Paul [Cairns], he has been living in the Deceased’s property at 45 Forde Street, Allora, Queensland.  He moved into that property without my knowledge or consent and to the best of my knowledge and understanding, continues to live in that property.

I also understand that Paul is using the Deceased’s motor vehicle.

Paul is not paying any rent for living in the Deceased’s property and as far as I am aware, the contents of the property have not been dealt with and no distributions have been made to any of the beneficiaries entitled to receive those items pursuant to the will.”^[13]

19. [19]
    As against that, an email sent to the applicant’s current solicitor from Peter Adams (one of the beneficiaries under the will) on 18 October 2022 states that Mr Cairns was “asked by us as friends of Sandy’s [the deceased] if he would be able to occupy the house and look after the house and gardens, until this matter could be settled”.^[14]  Even if that be the case, it was not appropriate for that to occur without the knowledge and/or agreement of the other executor.
20. [20]
    The evidence shows that the proceeds from the deceased’s bank account, transferred to the trust account of Chris Sheath & Associates, solicitors, in December 2017 (some $151,855) has been used up in legal fees incurred with that firm.^[15]  The final invoice from that firm remains outstanding.^[16]
21. [21]
    Mr Dore proceeded to engage GE Law Services to assist him to progress the administration of the estate.  That firm wrote to Mr Cairns on 18 September 2019, addressing the issue of him residing in the property at Allora and seeking that he cooperate to enable the sale of the property, attend to the payment of rent for living there, resign from his role and vacate the property.^[17]  A real estate agent was engaged to hand deliver the letter to Mr Cairns.^[18]  An email from that real estate agent, which is in evidence, states that this was done.
22. [22]
    The present application was filed on 23 September 2022.  In Mr Dore’s supporting affidavit, filed on the same date, he says that no further correspondence has been received from Mr Cairns since this time – which is over three years.
23. [23]
    Mr Dore concludes his affidavit (at [30]) by saying:

“It is clear that Paul is not prepared to work with me to finalise the administration of the estate and in the circumstances, I have no option but to seek for an independent administrator to be appointed to progress the finalisation of the estate.”

24. [24]
    Mr Cairns was personally served with the application and affidavit of Mr Dore on 6 October 2022.  The application stated on it that it was set down for hearing on 21 October 2022.
25. [25]
    It appears Mr Cairns sought to have the hearing adjourned until 24 March 2023 (by email to the applicant’s solicitor, on 18 October 2022).^[19] He gave no reasons for that. The solicitor responded on 20 October 2022 to say the applicant, Mr Dore, would not consent to that, referring to the already lengthy delays and lack of cooperation in administering the estate.^[20]
26. [26]
    The application came on for hearing in the applications list on 21 October 2022.  That morning, at 9.10 am, Mr Cairns emailed the court to say “this email is to inform the court that I am not well enough to travel or attend court today”.  He was given leave to appear by telephone.
27. [27]
    On 21 October 2022, Ms Rae of counsel appeared for Mr Dore.  Mr Cairns appeared, without legal representation, by telephone.  Mr Cairns said he was seeking an adjournment because he “totally disagreed with everything”.  He also said that “the house was left to me” (which I observe is inconsistent with the terms of will) and that he needed time to get things prepared so that he could present a case.  He said this included needing to get onto other beneficiaries to discuss things with them as well.  I said I would adjourn the matter to the following Thursday, 27 October 2022 at 10 am, but noted that there was a significant interest in matters concerning the estates of deceased persons being dealt with expeditiously, and that given the delay that had already occurred, it was important for the matter to be addressed.
28. [28]
    The matter was relisted for 27 October 2022.
29. [29]
    The afternoon before (26 October 2022) Mr Cairns emailed the court to say “I wish to advise the court that, at the time of writing, I am in hospital” and “Furthermore, and this is most important, I wish to bring to the court’s attention that not all beneficiaries / stakeholders, with regard to the will of Sandra Maree Hatton (deceased), have yet received the relevant documents.  He was told he should try to obtain a medical certificate or letter from a doctor.    What was provided was a handwritten note from a Dr Shah, from the Toowoomba Hospital stating that Mr Cairns:

“is currently an inpatient at Toowoomba Base hospital.

He will not be able to attend any court meetings secondary to his medical condition.”^[21]

30. [30]
    Counsel for the applicant, Mr Dore, pressed for the application to be determined despite the absence of Mr Cairns, given the length of time that has passed, the history of the matter and the modest nature of the estate, such that incurring further costs was a concern.  I reserved my decision, both as to whether to proceed in the absence of Mr Cairns and, subject to that, on the application generally.
31. [31]
    Having considered all of the material before the Court, I am satisfied that it would be appropriate to proceed to determine the application,  notwithstanding Mr Cairns’ absence from the hearing on 27 October 2022, for the following reasons:

    1. (a)
       Mr Cairns:

       1. was properly served with the application and supporting application – more than two weeks prior to the hearing date;
       2. therefore had ample time to respond to the application;
       3. has not provided any proper explanation, supported by evidence, for his inability to appear; and
       4. importantly, is one of two executors of a deceased estate, the administration of which has been languishing for seven.  In that role, he ought to have instructed a lawyer to appear for him at the application, if he was unable to appear, or at least engaged more substantively with the application, rather than avoiding it.
    2. (b)
       the evidence before the court amply supports the conclusion that Mr Dore and Mr Cairns cannot work together as executors;
    3. (c)
       Mr Dore wishes to be removed as an executor, and I am firmly of the view, as further discussed below, that it would not be appropriate to remove him, and leave Mr Cairns as the sole executor; and
    4. (d)
       in light of the extraordinary delays that have beset the administration of the estate, it is in the interests of the beneficiaries and, more broadly, the interests of justice that the application be determined without further delay and cost.
32. [32]
    In relation to the application itself, it is well established that this Court has broad power, both inherent and pursuant to statute, to grant or revoke probate of a will.  Relevantly, rule 642(1) of the Uniform Civil Procedure Rules 1999 confers power on the court to revoke a grant of probate if:

    1. (a)
       it appears to the court that the personal representative is no longer capable of acting in the administration (r 642(1)(a)(i)); or
    2. (b)
       the personal representative wants to retire from the administration (r 642(1)(b)).
33. [33]
    In exercising that power, the Court’s overriding consideration is the due and proper administration of the estate in the interests of creditors and beneficiaries.^[22]
34. [34]
    For the reasons discussed below, I am satisfied it is appropriate to make an order for the removal of Mr Dore and Mr Cairns as executors.  The only remaining issue is who to appoint in their place.
35. [35]
    On an application such as this, the Court has as its starting position that it will not interfere lightly with the testator’s choice of executor:  Baldwin v Greenland [2007] 1 Qd R 117 at [44]:^[23]

“The jurisdiction, both statutory and inherent, is a supervisory and a protective one. It is always appropriate and necessary for a court asked to exercise it to have regard to the testator’s wishes as to the identity of an executor or trustee. The testator’s choice may be based on loyalty, or on respect, or on necessity, or on the profession of the chosen person, or on other matters the testator knew about the chosen person; the reason for the choice might never be clear to a court. The overriding assumption must be that the testator thought the person chosen was worthy of trust, even when well aware when making a choice of existing hostility (from family members) toward the chosen executor or trustee, or of other grounds for doubt about the wisdom of the choice… the overriding object of the power remains the due and proper administration of estates.”

36. [36]
    Here, the deceased had chosen Mr Dore (her nephew) and Mr Cairns (her friend) to act jointly as executors; or, if they were unable or unwilling to so act, Geoffrey Charles Hope.
37. [37]
    I also emphasise the following from the judgment of Asprey JA in Bates v Messner (1967) 67 SR(NSW) 187 at 191-192:^[24]

“… the essential basis of the exercise of the court’s inherent jurisdiction to revoke a grant of probate is that emphasized by Jeune P [in In The Goods of Loveday [1900] P 154] namely, that the real object which the court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the court has been induced to entrust the office of executor. The terms used in some of the previously decided cases with relation to the circumstances which have given rise to the exercise of the jurisdiction of revocation, such as ‘abortive’, ‘inefficient’, ‘useless’ or ‘ineffectual’, are simply descriptive of a situation in which the court has been persuaded to the view that its grant, which was predicated on the oath of the executor named in the will that ‘he will pay all the just debts and legacies of the said deceased so far as the estate of the said deceased will extend and the law shall bind him, and that he will otherwise well and faithfully administer the said estate according to law; and that he will render a just and true account of his administration’ has been circumvented by a breach of that oath which is in effect an undertaking to the court making the grant. I shall make no attempt to define all circumstances which may attract the exercise of the court’s jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant.” [underlining added]

38. [38]
    The duties of an executor are to get in the assets of the deceased, to pay their debts, to pay the legacies given by the will, and to distribute the assets.  Despite the passing of seven years since the deceased’s death, this has not happened.  It is clear on the evidence that Mr Dore and Mr Cairns are incapable, for whatever reason(s), of progressing the administration of the deceased’s estate.  They cannot communicate and cannot work cooperatively together.  Mr Dore is at the point where he wishes to be removed.  Since it was the deceased’s wish to have both Mr Dore and Mr Cairns as executors (not one of them) and in light of the evidence before the court of what has – and, more importantly, what has not – happened in the last seven years, I would not be prepared to make an order removing Mr Dore and leaving Mr Cairns as sole executor.
39. [39]
    It is unnecessary for the Court to make any specific adverse finding against Mr Cairns, for example in relation to his occupation of the deceased’s house.  In order to reach the conclusion that it is appropriate for both executors to be removed it is sufficient to conclude, as I do, that the co-executors are incapable of discharging their duties, because they are unable to communicate or work together; one of them expressly wishes to be removed; the testator’s wish was for both of them to act as executors, not one of them; and there has been deleterious delay in the administration of the estate.
40. [40]
    The only remaining issue is who should be appointed in their place.
41. [41]
    Keeping in mind the need to respect the wishes of the deceased, before determining the application in a manner which would see an independent administrator appointed, it is necessary for the Court to have evidence about whether the alternative executor named in the will, Geoffrey Charles Hope, could appropriately be appointed in place of Mr Dore and Mr Cairns. 
42. [42]
    The only evidence before the Court about Mr Hope is that the applicant’s lawyers have been attempting to serve him with the present application and have been unable to make contact using the details they presently have.  That appears to have been in the context of endeavouring to serve all the beneficiaries, as discussed below.  The solicitor has asked Mr Cairns if he has contact details for Mr Hope (and another beneficiary).  No response has been received.^[25] But the matter of Mr Hope being the alternative executor named in the will has not been addressed.
43. [43]
    The applicant’s solicitor has endeavoured to inform the many beneficiaries of the present application.  Many of those have indicated they consent to the orders sought by the applicant (that is, for the removal of Mr Dore and Mr Cairns as executor, and for the appointment of the independent solicitor as administrator); some have not responded; some have not been able to be contacted.^[26]   Whilst it is appropriate that the beneficiaries were given notice of the application (or at least that concerted efforts were made in that regard), ultimately the decision to be made is one for the Court which, as already mentioned, has both a supervisory and protective role in relation to the administration of estates.  The email correspondence from Mr Cairns, annexed to Mr Dore’s affidavit, includes emails in which Mr Cairns refers to inviting beneficiaries to write to him “setting forth how they think things should be done”.^[27]  The duty is on Mr Cairns and Mr Dore to discharge their legal obligation as executors, in accordance with the terms of the deceased’s will.  The beneficiaries do not direct how that is to be done.  If assistance is required, legal advice should be sought.  But the plain fact – leaving aside the controversial matters raised (for example, as to Mr Cairns living in the deceased’s house) – is that this estate has not been administered, despite the passage of seven years, and the appointed executors are clearly unable to discharge their duties together.  That is sufficient to warrant their removal.
44. [44]
    However, given that the estate is a modest one, which has already been diminished by substantial legal fees, I am not persuaded it would be appropriate to appoint an independent administrator (who will, appropriately, charge a fee for his services), without first having evidence as to the availability of Mr Hope to take on the role as executor. 
45. [45]
    Having reached that view, I arranged for the application to be listed for further mention, so that I could raise this with the parties.  The matter was listed today, 2 November 2022 at 10.30 am.  The parties were advised, by email from my associate, sent on 31 October 2022.  They were both given leave to appear by telephone.
46. [46]
    Mr Cairns responded, on 1 November 2022, by email to my associate, saying:

“With reference to your email addressed to myself and others dated 31/10/22; Dr Darshan Shah has made it abundantly clear to me that he does NOT want me involved in the mention of this matter, whether in person or by telephone, as has been proposed for Wednesday 02/11/22.  Furthermore, his instructions are for me to rest as much as possible.

He has also pointed out that he has put his mobile number on the letter he provided in order that he may be contacted for further clarification, and has insisted that the judge, in this case Her Honour contact him directly.

  For your convenience I have provided Dr Shah’s details… “

47. [47]
    This morning (2 November 2022) at 8.56 am, Mr Cairns sent another email to my associate, which includes (I do not set the whole of the email out, as it contains material Mr Cairns may regard as private, concerning his health matters):

“By way of this correspondence, I wish to make it clear to all concerned that my current health issues are not a ploy or some concocted means of trying to manipulate the court.   My current health status is genuine and only too real.

I get the impression the court may be of the thought that perhaps I am stalling.  I hope the information provided below is sufficient to counter that thought, should that be the case.

On the afternoon of 16/10/22, the date originally set aside for this mention, I was attended to by paramedics from Warwick base.  Then, on the evening of 18/10/22 I was once again attended to by Warwick ambulance.

On the morning of 21/10/22, while shopping with my Blue Care care person, I became somewhat unwell and needed to return home as soon as possible.

The Care Person noted that my appearance was ‘not good at all’ and wanted immediately to call the ambulance.  By this time my condition had deteriorated significantly…”^[28]

48. [48]
    Mr Cairns goes on to say that he was transported to the Toowoomba Base Hospital by ambulance on 21/10/22, and admitted.  He states that since being in hospital he has developed a cold and must now wait for all symptoms of the cold to clear before further investigations can be performed.
49. [49]
    His email concludes:

“I hereby request that I be given time for the necessary procedures to be carried out, and for reasonable time to recover from same.

Additionally, I would like to remind Her Honour and the representative/s for Mr Dore, that not all beneficiaries/stakeholders have yet received the relevant documents.

Is it not true that this question was raised by Her Honour on 16/10/22?

And is it not true that the representative for Mr Dore responded in the affirmative?

If all the beneficiaries/ stakeholders have in fact received the relevant documents, could the representative/s for Mr Dore provide proof?

Also, I would like to know why Cornford Scott Lawyers, later contacted me personally, requesting I supply addresses for some of the beneficiaries/ stakeholders?

As indicated at the outset of this email, I do not agree or give consent for this mention to go ahead today.

What I am doing, however, is requesting sufficient and reasonable time be granted to me in order for me to recover from recent health issues so that I can not only rebut Mr Dore’s claims against me, but be given the opportunity to prove to the court that Mr Dore is trying to manipulate the Will of Sandra Maree Hatton to suit his own agendas.”^[29]

50. [50]
    I observe that it is not a matter for the Court to contact Mr Cairns’ doctor.  The obligation is on a party to a proceeding to put such evidence before the Court as they wish to rely on.  The emails Mr Cairns has sent the Court are not admissible evidence as to the truth of their contents; although I have taken their contents into account as a submission.
51. [51]
    I further observe that there is nothing unreasonable about Mr Dore’s solicitors asking Mr Cairns to provide contact details for beneficiaries, if he has them.  
52. [52]
    The important point in this matter is that Mr Dore and Mr Cairns are not participants in this proceeding in their own personal capacity, representing their own private interests.  They are the named co-executors and trustees under the will of another person, now deceased.  They owe a serious obligation in that capacity, to discharge their duties as executors and trustees, in the due administration of the estate.  Without needing to make any adverse finding as to any conduct of Mr Cairns, the Court in its supervisory and protective capacity can appropriately reach the view, as I have, for the reasons already given, that Mr Dore and Mr Cairns ought to be removed as executors.   That Mr Cairns is incapable, because of his health, of attending to this matter further reinforces the appropriateness of that view.
53. [53]
    However, in order to give the parties time to address the remaining issue – as to who should be appointed to administer the estate in their place – I have today made the following orders:

1. If the respondent, Mr Cairns, is aware of the contact details for Mr Geoffrey Charles Hope (including telephone number, residential address and/or email address) he must provide those to the solicitor for the applicant by 4 pm on Monday, 7 November 2022.

2. The applicant (and the respondent if he wishes) file and serve any further affidavit material in relation to Mr Geoffrey Charles Hope, by 4 pm on 21 November 2022.

3. The applicant (and the respondent if he wishes) file and serve any submissions in relation to whether Mr Geoffrey Charles Hope may appropriately be appointed as alternate executor, by 4 pm on 28 November 2022.

4. The applicant (and the respondent if he wishes) file and serve any submissions in relation to the costs of the application (in particular, in relation to the applicant’s submission that they be paid by Mr Cairns, rather than from the estate), by 4 pm on 28 November 2022.

5. The application is listed for final hearing before Bowskill CJ at 10 am on 5 December 2022.^[30]

54. [54]
    For completeness, I record that should Mr Hope either be unable to be found, or unwilling to take on the role of executor, I regard it as appropriate for orders to be made for Mr Dore and Mr Cairns to be removed as executors, for the grant of probate to them to be revoked, and for letters of administration of the will of the deceased to be granted to the independent solicitor, Mr Wiedman. 
55. [55]
    It is not in the interests of the due administration of this estate, nor the interests of the administration of justice, for there to be any further delays in finalising this matter.