Baird v Logan – Middleton Estate [2008] NSWSC 1029

New South Wales Supreme Court

CITATION : Baird v Logan – Middleton Estate [2008] NSWSC 1029

HEARING DATE(S) : 26 September 2008

JUDGMENT DATE : 26 September 2008

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 26 September 2008

DECISION : Grant of probate revoked; probate granted to Plaintiff alone.

CATCHWORDS : SUCCESSION – PROBATE – TRUST – Co-executrix and co-trustee refuses to join in discharge of mortgage – no rational reason for refusal – deep animosities within family – Court may revoke grant of probate to recalcitrant executor.

LEGISLATION CITED : Protected Estates Act 1983 (NSW) – s 20A

CATEGORY : Principal judgment

CASES CITED : Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80

PARTIES : Jennifer Joan Baird (Plaintiff) Pamela Clare Logan (Defendant)

FILE NUMBER(S) : SC 113268/08

COUNSEL : A.R. Gee (Plaintiff) In person (Defendant)

SOLICITORS : King-Christopher Carpenter (Plaintiff) In person (Defendant)

113268/08 Middleton Estate: Baird v Logan

JUDGMENT – Ex tempore

26 September, 2008

1 The Plaintiff, Mrs Baird, and the Defendant, Mrs Logan, are the co-executrixes of the estate of their mother, Kathleen Ellen Joan Middleton, who died on 8 November 2006 leaving a will dated 30 November 1989 and a codicil dated 6 March 1997. Probate of the will and codicil was granted to Mrs Baird and Mrs Logan on 26 September 2007. 2 Mrs Baird seeks orders revoking the grant of probate to herself and Mrs Logan, removing Mrs Logan as trustee of their mother's estate and granting probate of the estate to her alone. Mrs Logan is, according to Mrs Baird, impeding and delaying the due administration of the estate by refusing to sign, as co-executrix, a discharge of a mortgage dated 20 May 1980 between two of the deceased's children, Terence Middleton and Anthony Middleton, as mortgagors, and the deceased as mortgagee. The mortgage secured a loan of $50,000 together with interest of 10% per annum and was due for repayment on 1 April 1990. 3 Mrs Logan says that she is justified in refusing to execute a discharge of that mortgage, for reasons to which I will come shortly. 4 The mortgage secured a debt outstanding by Terence and Anthony to the deceased which arose in the course of the transaction whereby Terence and Anthony purchased the family property. The mortgage was not repaid in 1990 when it was due for repayment. The evidence is that Terence and Anthony continued to pay interest on the principal sum and certain expenses on behalf of their mother during the 1990s. 5 On 5 December 1997, the Office of the Protective Commissioner became the manager of the deceased's affairs pursuant to a management order under s 20A of the Protected Estates Act 1983 (NSW). 6 On 1 June 1998, the Protective Commissioner wrote to Terence and Anthony noting that the mortgage was outstanding and requiring evidence of any payments made under it. A detailed response to that letter was provided by the solicitor engaged by Terence and Anthony on 16 July 1998. 7 On 23 September 1998, the Protective Commissioner, having taken legal advice, accepted that a sum of $33,750 was still owing under the mortgage. He agreed that Terence and Anthony could pay off the mortgage at the rate of $2,500 per annum. Terence and Anthony made periodic, though not always regular, payments in conformity with this agreement. 8 By 2001, Mrs Logan had developed a number of concerns about her mother's affairs. She queried several matters with the Protective Commissioner. In particular, Mrs Logan was concerned about how the mortgage had come into existence in the first place. She was concerned that Terence and Anthony may have taken advantage of her mother. The Protective Commissioner investigated these complaints, and on 15 June 2001 he wrote to Mrs Logan as follows: "We also note that you are unhappy with the how [sic] your father's estate was administered and consider that your mother was taken advantage of. This however is a matter that occurred over twenty years ago when your mother capacity to make decisions was not impaired. We also note that at the time she received her own legal advice. Despite this we referred the matter to Tebbutt and Sons for independent legal advice. After due consideration Tebbutt & Sons advised the following: