Supreme Court New South Wales Medium Neutral Citation: Joel Lewis Hubbard, Re the Estate of the late John Gordon Ross [2011] NSWSC 617 Hearing dates: 21 June 2011 Decision date: 21 June 2011 Jurisdiction: Equity Division Before: Windeyer AJ Decision: Summons dismissed Catchwords: SUCCESSION - wills - executors and trustees - application for judicial advice - plaintiff not executor - no grant made Legislation Cited: Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Joel Lewis Hubbard (plaintiff) Representation: J S Tobin (plaintiff) Diamond Conway Lawyers (plaintiff) File Number(s): SC 2011/184888 EX TEMPORE Judgment 1Mr J Hubbard, the plaintiff in this action, is the executor named in a will of John Gordon Ross, deceased, which will was executed on 2 October 2009. The deceased made another will on the 27 February 2004 appointing Mr S Latham as executor. Mr Latham is the plaintiff in proceedings in the Probate List No 2010/284489 where Mr Hubbard is named as the defendant. In those proceedings Mr Latham seeks an order that a grant of probate be made to him. He is not, at least so far as the orders sought are concerned, seeking a grant in solemn form. 2The beneficiaries under the 2004 will are also named as beneficiaries under the 2009 will but their interests under the later will are substantially less than their interests under the earlier will. Under the later will, 75% of the residuary estate is given: "on trust for charity or given to charity with my current residence to be utilised as a residence for short term stays by children with the name of my late father Charles Gordon Ross to be included in any trust and my executor shall have discretion as to the balance of my estate apart from the residence as to whether it is used for maintenance and upkeep and improvement of facilities of the residence or to be gifted to existing charities." As the named beneficiaries under that will take substantially less than they take under the 2004 will, because while they take in different shares, no part of the estate goes to charity, it is understandable why they have no interest in propounding the later will or in assisting the executor named in it to propound it. They are not willing to provide an indemnity to Mr Hubbard and therefore the only person who would have an interest in upholding the later will would be the Attorney-General of New South Wales as the protector of charities and that would depend upon whether the gift which I have read out were a valid charitable gift. At the moment the Attorney-General has said that he is not interested in becoming a party to the proceedings and becoming a contradictor and nor is he prepared to indemnify Mr Hubbard against any liability Mr Hubbard may incur for costs if he defends the present probate proceedings and cross-claims for probate of the later will and is unsuccessful in that claim. 3Under the summons filed in this action the plaintiff, Mr Hubbard, seeks advice from the Court as to whether he is justified in defending the present probate proceedings. The earlier will is being propounded by Mr Latham, the substituted executor named in it, because he claims that the deceased lacked testamentary capacity at the time the 2009 will was made. 4When this matter commenced it was clear that the application, at least at that stage, was being made under s 63 of the Trustee Act 1925 (NSW) by the plaintiff for the advice. I said that it seemed to me there was a preliminary problem and that was that Mr Hubbard is neither the executor nor trustee of the will of the deceased as he has obtained no grant and therefore whatever rights are available under s 63 of the Trustee Act are not available to him. That seems to me to be absolutely clear and as I understand it, it has now been accepted by counsel for the plaintiff. If it has not been accepted it does not matter because that is clearly the position. 5Mr J S Tobin, counsel for the plaintiff, has said everything that I think it would be possible to say in support of the claim when this matter again came back again this afternoon, after having been adjourned to enable him to research the matter further. He has referred me to Rule 54.3 of the Uniform Civil Procedure Rules 2005 (NSW), but there is nothing there which would enable an order to be made or advice given of the sort which is the subject of the summons. He also referred me to Rule 42.25 which relates to a person who is or has been at a party to any proceedings in the capacity of trustee or mortgagee and the entitlement of that person to the costs out of the fund, but that cannot assist here because, as I have said, Mr Hubbard is not at present a trustee. 6What Mr Hubbard is really seeking is protection out of the estate in the event that costs are incurred by him and he fails in the action but if he does fail in the action he will not be trustee of the estate. He will have no part in the estate and it seems to me there is no possible basis on which the Court could order that he as trustee, which he would not be in those circumstances, be indemnified for his costs. 7I accept that Mr Hubbard is in a difficult position. He is the man who prepared the will. He presumably is of the clear view that the testator was of sound mind at the time that he made the will. If he were not of that view then presumably he would not be wishing to bring these proceedings. However, it is a matter for him to decide his course of action. Costs in probate proceedings do not always follow the event and on occasions if the litigation has arisen through fault of the testator it may be the costs of the unsuccessful party would be ordered to be paid out of the estate. Those matters are in the discretion of the court after the probate proceedings have been concluded. They cannot be decided in advance. 8It seems to me that Mr Hubbard has to make a choice. He can either bring the proceedings because, as his counsel says, he thinks there is a public interest in doing so and take the risk in doing so or he can take no further part in the estate, he can renounce probate and tell the Attorney-General that he is not going to seek a grant, that none of the named beneficiaries intend to seek a grant and it is a matter for the Attorney-General whether or not he wishes to apply for administration with the 2009 will annexed. That, in itself, has some difficulties but those difficulties would not be insurmountable if the Attorney-General decided that he should take some positive action so as, if successful, to obtain the advantage of a charitable gift. 9In all these circumstances the only order that can be made is that the summons be dismissed and I will make that order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2011