The Estate of Nicholas Paul Enright

These proceedings concern the Estate of the late Nicholas Enright who died on 30 March 2003. The deceased had made a Will on 25 March 2003 (“the Enright Will”) and Probate was granted of that Will on 19 November 2003.

The grant of Probate was in the following terms:

Mr Ian Enright and Ms Dimity Kingsford Smith were appointed Executors and Trustees by clause 3 of the Will. Ms Kingsford Smith retired from the role of Trustee on 7 June 2007 and Mr Enright has continued in the role. There is an issue relating to Ms Kingsford Smith’s retirement, which I shall explain, but it is of very limited significance for the matters with which the Court is presently concerned. I shall, in the balance of these reasons, refer to Mr Ian Enright as the Defendant.

Nicholas, or “Nick” Enright was a well-known Australian playwright who wrote, amongst other things, ‘On the Wallaby’, and ‘Blackrock’, and he adapted ‘Cloudstreet’ (Tim Winton’s novel) for the stage and wrote or co-wrote screenplays (‘Lorenzo’s Oil’) and musicals, for example, ‘The Venetian Twins’.

By his Summons, the Plaintiff (Mr David Marr), for whom Mr R. Lancaster SC appears, seeks orders in relation to the Estate and its administration. There are issues about the long delay in the commencement of these proceedings, but there are also issues relating to the Plaintiff’s standing. Ms J. Needham SC appears for the Defendant.

The parties reached agreement that it was desirable for the Court to make an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 28.2 and to determine, as preliminary questions, the following issues:

The parties agreed on the consequences will be of the various alternative outcomes posited by the preliminary questions:

The relevant clauses of the Will are:

Clause 8.1 and 10 of the Will deal with the residue of the Testator’s Estate, but it is agreed that those paragraphs are not dealing with his Literary Estate.

I shall refer to the property described in clause 7.4, i.e. the copyright and intellectual property in the Testator’s works, as the “Literary Estate”.

The only beneficiaries of the Literary Estate are the National Institute of Dramatic Arts (“NIDA”) and the Actors Benevolent Fund (“ABF”).

It should be noted that by clause 5 and 6 of the Will, whereby the Testator gave details of particular pieces of art and photographs to named individuals, and in respect of the balance of his personal effects, the Testator appointed Ms Sandy Gore to “assist my Executors and Trustees” dispose of them.

Both Mr Lancaster and Ms Needham agreed that clause 7.6 ought to be viewed as a new clause, rather than a subclause of clause 7.

Originally when application for Probate was made, it was made by the Defendant, Ms Kingsford Smith and the Plaintiff. The Probate Registrar declined to make a grant of Probate in the form requested, indicating that the Summons for Probate should be amended to have the grant sought in the form which it was subsequently granted: see Exhibit A, Tabs E1 and E2. Both sides draw attention to the affidavits which were filed in support of the Summons. In their joint affidavit of 10 October 2003, Ms Kingsford Smith and the Defendant deposed (see: Exhibit A, Tab A1):

In his affidavit of 29 October 2003, the Plaintiff deposed:

Both parties accept that what was said by the Plaintiff or the Defendant or determined by the Probate Registrar is not a determination of the issue which the Court must now decide.

I note that the Estate was stated in the application for Probate to have a net value of $2,107,720.71, of which the “Literary Estate” was said to have a value of $325,698.

The main contest between the parties revolves around the following point: was the Testator’s appointment of the Plaintiff as his “Literary Executor” effective to make him an Executor for the purpose of s 41 of the Probate and Administration Act 1898 (NSW) (“the PAA”). Section 41 provides:

The Plaintiff’s position is that the Testator must be taken to have appointed him to be the Executor for one part of his Estate, namely the Literary Estate. The Defendant’s position is that the Testator appointed him as Executor and Trustee for the whole Estate, including the Literary Estate.

The contest between the parties is one of construction of the words used by the Testator in his Will, but I should note that:

I have referred to the fact that the contest is one of construction of the Will. There was a large measure of agreement as to the approach which the Court must take to construction of a will where there is a dispute as to its meaning.

In Fell v Fell (1922) 31 CLR 268 Isaacs J pp 273 – 276 set out the following, what he described as “incontestable” principles:

At p 276 Isaacs J also said:

There are several other cases on construction to which attention was drawn, Perpetual v Wright (1987) 9 NSWLR 18, 33; Muir v Winn [2009] NSWSC 857 at [3], [4], [23] and [24]; Coorey v Coorey (22/02/1986 NSWSC Unreported); Re Estate Polykarpou [2016] NSWSC 409 (“Polykarpou”); and Carroll v Perpetual Trustee Co Ltd (1916) 22 CLR 423, p 433 per Isaacs J and Rich J. In Polykarpou Lindsay J summarised nine principles governing construction of the will (g) – (i) dealt with issues relating to charities, a point not of present concern. I set out the summary contained in [64](a) – (f) of Polykarpou:

There have been several cases in which the words “literary executor” have been used. In re Orwell’s Will Trusts, Dixon & ors ats Blair [1982] 1 WLR 1337, the Testatrix (the wife of Eric Blair who wrote under the pseudonym George Orwell), appointed a literary agent as her “literary executor” directing her Trustees to give into his charge all copyright film and television rights derived from the Estate of her late husband and the benefit of all existing contracts and directed that he should have full power to exploit her Literary Estate by the grant of publishing licenses and rights. The contest in that case arose over the question of whether the literary executor was entitled to charge and, if so, on what conditions.

In Woodhouse v Cohen (1950) 198 Misc, 1000, 101 NYS 2d 675, a plaintiff calling himself “Literary Executor” for a deceased person brought a claim in respect of books that he had purchased at auction. Eder J dismissed the case and noted:

In Sharp v A-G (NSW) [2015] NSWSC 1580 the Court was concerned with the Estate of Martin Sharp in which the Testator had appointed two persons as his “literary or artistic directors”, defined as the Literary Executors, who were to:

In the Estate of Holland [1936] 3 ALL ER 13 was a case in which four persons had been appointed as executors and trustees of Mr Holland’s Will, and a fifth was appointed as “literary executor” in respect of certain “letters and papers” with power to destroy them if he saw fit in his absolute discretion. The relevant UK Act did not permit more than four executors to be appointed and the Court upheld the Probate Registrar’s decision that one of the executors was required to renounce probate.

In his learned paper ‘The Literary Executor and the Lighthouse’ (“the Lighthouse Paper”), delivered at the Society of Trust and Estate Practitioners (STEP) NSW Branch on 16 November 2016, Justice Lindsay provided a detailed analysis of matters pertaining to literary executors, and noted that the term has only come to be seen in wills in relatively recent times. His Honour pointed out that ‘literary executor’ does not necessarily mean executor, and is not a legal term. He pointed out that no authorities have dealt with this question. The Lighthouse Paper contains the following:

Annexed to the Lighthouse paper are the main provisions in the will of a famous Australian author, now deceased. With names omitted, I set out clauses 3(a) – (f) of that will:

The Defendant refers to these clauses contending that it is precisely that sort of detail which is missing in the present Will, and the absence of which encourages the conclusion that the Plaintiff was not appointed as an Executor, in the sense required under Probate law.

The scheme, relevant for present purposes, was established by clause 7 and each of subclause 7.1 – 7.5 of the Will dealt with that Literary Estate. The means of dealing with the Literary Estate had these components:

The Defendant has advanced a number of arguments against the construction for which the Plaintiff contends:

The Plaintiff’s response to these matters is as follows:

I have referred to the fact that whilst the Will appoints the Plaintiff as Literary Executor, it does not appoint him as Trustee. This difference is one of the arguments to which the Defendants refers on construction of the Will. It led me to enquire of the parties what would be the position if, as the Plaintiff contends, he is the Executor of the Literary Estate, since the Will expressly contemplates that the literary works will not be sold and the Testator must have envisaged that there would be ongoing management of the literary works. Copyright subsists for a period of 70 years from the death of an artist or writer: see s 33 of the Copyright Act 1968 (Cth).

Mr Lancaster has, in separate additional written submissions (“the PAS”), delivered in accordance with the timetable agreed upon at the hearing, addressed the point. He contends that it is not something that falls for determination because the question for determination is solely one of construction. Nevertheless in the submissions he provides reasons and authority for the conclusion that the absence of express bestowal of the title ‘Trustee’ and powers is no great impediment.

I summarise the points made in the PAS:

Ms Needham, in her submissions in reply to the PAS, dated 10 November 2017, did not challenge any of the principles adverted to by Mr Lancaster. Her point rather was that the Plaintiff was not an executor or trustee and so could not make himself a trustee by, for example, reliance on s 11. Ms Needham repeated her contention that the question of the Plaintiff’s standing if he was not an executor need not be answered. Mr Lancaster provided a written response to those submissions.

Whilst I accept that an executor can become a trustee even if the will does not expressly provide for this to occur, it seems to me that the absence of an express appointment of the Plaintiff as a Trustee is, on the issue of construction, a matter that supports the Defendant’s contention that the Testator did not intend to appoint the Plaintiff as his Executor and Trustee to administer the Literary Estate. I take it into account, but I do not think it is decisive.

In my view the Will, taken as a whole, reflects a scheme by which relevantly:

Of the propositions in [40] only (3) is controversial. My reasons for taking the view that (3) is included are:

It follows that the Testator intended to appoint the Plaintiff as Executor of the Testator’s Literary Estate, i.e. the copyright and intellectual property in the Testator’s works, thus permitting a grant of Probate to be made to the Plaintiff in respect of that property, pursuant to s 41 of the PAA. It follows also that the answer to questions 1 and 2 are “yes” and the matter should proceed to a hearing. Question 3 does not arise.

I record my gratitude to counsel for their most detailed and helpful submissions, both oral and written.

I will give counsel an opportunity to address me on the issue of costs.