James Justin O’Neill v Antony Patrick O’Neill

The plaintiffs are three of the children of the late Catherine Theresa Thom, who died on 19 February 2003. On 16 June 2003 probate of her last will dated 15 February 2003 was granted to the second plaintiff and the defendant, another child of Catherine Thom.

The principal asset of the estate is a large property in Withers Road, Rouse Hill. The title is held by the executors as joint tenants. The defendant has lived at the property since about March 2005. Another asset of the estate was a house in Eastwood.

The will provided for various specific gifts, and for the residue of the estate to be given to the four children in equal shares. Clause 5 of the will provides:

The Eastwood property was sold in early 2007. The Rouse Hill property has not been sold, despite almost 12 years passing since the grant of probate. Problems have emerged between the executors in relation to that issue. The plaintiffs, by a Summons filed on 27 November 2014, seek orders for the revocation of the grant of probate, and for a grant of administration in their favour. Orders are also sought for the appointment of trustees for sale in respect of the Rouse Hill property.

The Summons originally came before me on 8 May 2015 in the Applications List. On that occasion the defendant appeared in person, and sought an adjournment. I granted the adjournment and urged the defendant to obtain legal advice about the issues raised in the proceedings. I indicated that the matter was not one that could stand any further delay.

Prior to 9am this morning my Chambers received a telephone call from someone who identified themselves as "the defendant's partner". She informed a member of my staff that the defendant was ill today, and was unable, or likely to be unable, to attend Court. Mention was made of the possibility of obtaining a medical certificate. When the matter was called at 10am and again at approximately noon today, there was no appearance by the defendant. The defendant has not sought to place any medical evidence before the Court.

There has been no attempt on the part of the defendant to suggest that he wishes to resist the orders sought by the plaintiffs, outline the bases of any such resistance, or indicate that he wishes to adduce any evidence in the matter. In those circumstances, the matter has proceeded today in the defendant's absence.

Each of the plaintiffs swore an affidavit which was read at the hearing. Affidavits proving service were also read. The first plaintiff, James O'Neill, deposed that in a conversation with the defendant in 2004 or 2005 he said to him that the retention of the Rouse Hill property for any significant duration beyond the sale of the Eastwood property would not be acceptable, to which the defendant replied that it would take “a special amount of care” for the sale of Rouse Hill, unlike Eastwood.

A further conversation took place in late 2006, or early 2007, in which the defendant said it was up to the executors how Rouse Hill should be marketed, and that its sale may take longer. The first plaintiff says that in about early 2010, after discussing the matter with his sisters, who are the other plaintiffs, he spoke to the defendant on the telephone, and told him that he and his sister Catriona wanted the property sold, as they would both like to receive their money. The defendant is said to have replied: “We must one day all get together and talk about it”. The first plaintiff has not had any contact with the defendant since that telephone call, despite attempts to reach him by leaving messages on a mobile phone used by the defendant, and leaving a note for the defendant at the property. On 29 November 2013, a letter was sent to the defendant by a solicitor acting for the first plaintiff, but the letter was returned to the solicitor.

The third defendant, Catriona O'Neill, has had no contact with the defendant since January 2012. She deposed that since that time she has made numerous attempts to contact him to discuss the sale of the Rouse Hill property, but her telephone calls have not been answered, and neither have her text and voice bank messages been responded to.

The second plaintiff, Fiona O'Neill, is the other executor of the estate. She deposes that on numerous occasions she has attempted to reach agreement with the defendant concerning the sale of the Rouse Hill property, mostly without success. However, in June 2012 the executors entered into an agency agreement with LJ Hooker at Riverstone to sell the property. That agreement continues to be on foot. It seems that, at the defendant's request, it was agreed that the property would initially be marketed at a value of $11 million, although a valuation obtained in May 2012 from a qualified valuer suggested that the value was only $9.78 million. The asking price was at some stage reduced to $10 million. A more recent valuation given by the valuer in February 2013 gave a figure of about $8.45 million.

The second plaintiff further deposes that the defendant has, since about October 2012, ceased communicating with her. She says that she has made numerous attempts to contact him by telephone, and has gone to the property and left letters there for him. She has received no response to any of those letters, which were left in January, February and October 2013, and March, May and June 2014.

The letter of 14 January 2013 contained the following:

The letter of 15 February 2013 contained the following:

The letter of 5 October 2013 contained the following:

The letter of 11 March 2014 contained the following:

The letter of 9 May 2014 contained the following:

The letter of 26 June 2014 contained the following:

As referred to in the second plaintiff's letter of 9 May 2014, in May 2014 an offer was received from a purchaser wishing to enter into an option agreement, with a purchase price of $4.8 million. In July 2014 the offer was raised to $5.2 million. At about the same time an offer to purchase with a deferred settlement was made by another interested party, at a much lower figure. The second plaintiff considered the $5.2 million offer too low, in light of the valuation advice received, but in the absence of any feedback from the defendant a joint response was not possible.

The principles applicable in respect of applications to revoke grants of probate are found within the decisions of the Court of Appeal in Bates v Messner (1967) 67 SR (NSW) 187 and Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80.

In Mavrideros v Mack (supra) Sheller JA, with whom Priestley and Beazley JJA agreed, stated the relevant principles (at 101 and 102) as follows:

Sheller JA then stated the following (at 108):

Such a finding is not to be made lightly. However, it seems to me that the evidence given by the plaintiffs, which was not contradicted and which I unhesitatingly accept, clearly demonstrates that the due and proper administration of their mother's estate has been prevented since at least late 2012 by the failure of the defendant to actively carry out his duties as an executor. The grant of probate, even if it has not turned out to be abortive, has certainly become inefficient to a very high degree indeed. It is in fact no longer functioning at all, and certainly not in any way like the manner intended.

I consider that the defendant's conduct in essentially eschewing engagement, not only with the other beneficiaries including the first and third plaintiffs, but also his co-executor, the second plaintiff, demonstrate that, in the circumstances, the defendant is not a fit and proper person to continue to hold the office of executor of this estate.

I have not overlooked the provisions of clause 5 of the will. Whilst clause 5 is an indication of the testator's intention in relation to the defendant playing a central, and indeed decisive role, in connection with the disposition of the Rouse Hill property, the clause makes it clear that the defendant is only to have such a decisive role after full, fair and amicable family discussions have taken place. The evidence makes it plain that despite exhortations made to the defendant to engage in discussions, including a round table discussion of all concerned, those exhortations have effectively been rebuffed by silence and inaction. I also note that in the letters sent by the second plaintiff to the defendant there were a number of pleas for the defendant to take action in order to fulfil his duties as an executor.

I have therefore come to the conclusion that it is appropriate to make an order revoking the grant of probate, and for an order that the plaintiffs be appointed as administrators of the estate by virtue of a grant of administration with the will annexed.

The plaintiffs, as I have mentioned, also seek orders for the appointment of trustees for sale. There is no reason why this order should not be made in the circumstances. Indeed, it seems to me to be appropriate having regard to the type of property involved and the fact that it may be very valuable. Clearly, a professional marketing campaign, carried out under the oversight of suitable trustees, is desirable. I will therefore make orders for the appointment of trustees as suggested.

The orders of the Court will be: