Cautious administrator seeks court guidance amid beneficiary discord

Veronica Hurren died in March 2009 survived by children John, Peter and Lynne.

Her last will appointed Toby Jacobs as executor, made some minor gifts and then left the rest and residue of the estate equally between the three adult offspring.

Jacobs did nothing to administer the estate for many years.  John applied to the Supreme Court of Queensland and in September 2018 obtained orders from Justice Martin Burns removing him as executor.

The judge appointed an independent administrator – solicitor John Fradgley – to administer the estate given what he took to be heightened conflict among the beneficiaries.

The estate consisted of 2 properties at Biggera Waters, in which daughter Lynne and Jacobs occupied from time to time without the estate’s consent.

Fradgley asked them to vacate and when they refused, he started actions in the Magistrates Court and in QCAT eventually selling the properties after achieving vacant possession in October 2019, for a net sum of almost $1.5 mil.

A valuer assessed the rent lost to the estate from the unauthorized occupation of the properties by Lynne and Jacobs over 10 years from 2009 at $266,000.

The administrator decided not to pursue Jacobs as he appeared to have no assets but considered recovering the forgone rent from Lynne by way of an adjustment to her estate share.

Having eventually decided to pursue neither of them, Fradgley sought and obtained advice in August 2021 from the Supreme Court confirming the validity of that approach from Justice Peter Applegarth.

Peter nevertheless pressed the administrator to sue Lynne for the foregone rent or a share of it.

He wanted Fradgley to recover the lost rent, Fradgley did not want to waste time and legal costs on likely futile legal proceedings and Lynne wanted to avoid any payment.

This issue went back and forth between the three protagonists until late 2022.

The dispute was nearly resolved with an in-principle agreement that Lynne would pay half the lost rent, but she changed her mind and refused to formalise that arrangement.

Fradgley – who was ‘between a rock and a hard place’ in estate administration land – faced mounting criticism from Peter for sitting on his hands.

The administrator decided to get advice and directions from the Supreme Court for a second time.

He applied to the court, outlining the background and circumstances and asking for an order that would permit him to deduct $133,000 – half the sum in dispute – from Lynne’s estate share in line with the earlier proposal.

Due to be heard in early-2023 but delayed by Lynne until December 2023, the matter came before Justice Martin Burns who approved administrator Fradgley’s request.

The case demonstrates the caution that is called for in estate administration. It also illustrates the importance of choosing a competent executor to avoid the huge expense by which an estate can be burdened by the appointment of an independent administrator.

The legal costs incurred in the nearly 15 years from Veronica’s death are likely to be enormous.

Re Estate of Hurren [2023] QSC 287 Burns J 23 December 2023

source https://qldestatelawyers.com.au/cautious-administrator-seeks-court-guidance-amid-beneficiary-discord/

Whistleblower gets up over sibling in bitter estate battle

Social media is cropping up in the most unlikely of places.

And a court has ruled that videos posted publicly can constitute an offer of settlement to a party in litigation.

The dispute in which the ruling arose relates to former military lawyer David McBride – who last November pleaded guilty to revealing national defence secrets to journalists – in a challenge to the will of his mother Patricia who died in November 2021.

Patricia was survived by David and his three siblings. Her husband Dr William McBride – the Sydney obstetrician who was the first to warn of the dangers of thalidomide – had died in 2018.

She made a will in 2014 appointing her daughter Louise – a Sydney tax barrister – as executor and beneficiary of the bulk of her estate, its major asset being a harbour-view apartment in Neutral Bay where Louise lives and carries on her legal practice.

David was left some personal items and a legacy of $10,000.

After Louise distributed the estate – but just within the 12 month time limit – David filed court proceedings seeking a larger share.

Louise answered the claim by contending David’s social video posts – saying he needed $10,000 from the estate to fund his whistleblower defence to the charge of leaking Australia’s Afghanistan war secrets and that maybe the estate could pay it – was a settlement offer that she had duly accepted.

Acting Justice Michael Elkaim noted that because David was awaiting trial on those criminal charges when the video was posted, he “was very much in the public eye” and “anxious to amass funds for his defence”.

Louise stumbled when asked to identify the specific words from the video that constituted the offer, arguing his intent was “discernable” from the context and content.

Against this contention, his honour noted – among other things – that the post made no mention of how legal costs were to be resolved as is the usual case for settlement offers.

The judge accepted that an offer can be inferred from conduct and can be made through social media as Louise had argued but rejected the submission that his video post was indeed an offer to settle the estate dispute proceedings.

Louise’s application for orders declaring that the matter had been settled, was dismissed.

The trial of the dispute will come before the NSW Supreme Court in the coming months, if not resolved earlier by a negotiated agreement.

This decision demonstrates once again that care should be taken when posting on social media, especially when a party to court proceedings.

McBride v McBride [2024] NSWSC 45 Elkaim AJ, 2 February 2024

source https://qldestatelawyers.com.au/whistleblower-gets-up-over-sibling-in-bitter-estate-battle/