Dingle v Dingle [2023] QSC 106

SUPREME COURT OF QUEENSLAND CITATION: Dingle v Dingle [2023] QSC 106 PARTIES: BRADLEY MORRIS DINGLE (applicant) v LINDSAY MORRIS DINGLE (respondent) FILE NO/S: S 240/23 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Rockhampton DELIVERED ON: 17 May 2023 DELIVERED AT: Rockhampton HEARING DATE: 27 April 2023 JUDGE: ORDER: CATCHWORDS: COUNSEL: Crow J 1. Orders at [16] be made. SUCCESSION – PERSONAL REPRESENTATIVES – TITLE AND ESTATE – REMOVAL AND DISCHARGE – where the applicant and respondent were to be the executors of the will of the deceased – where the significant asset was a residential property – where the will required the property be sold and the balance of the estate be divided equally between her children – where the respondent resides at the property – where the respondent was provided with the right to continue to reside at the property for 12 months from the date of passing of the deceased - where probate was granted in respect of the will – where the respondent did not leave the property after 12 months – where the applicant filed an application for the removal of the respondent as an executor of the deceased’s will pursuant to s 6 of the Succession Act 1981 (Qld) – whether the due and proper administration of the estate can occur whilst the respondent is an executor – whether the respondent is in conflict with the estate – whether the respondent is in breach of his fiduciary duty as executor of the estate Succession Act 1981 (Qld) s 6 Trusts Act 1973 (Qld) ss 82, 90 Baldwin v Greenland [2007] 1 Qd R 117 A M Bratti for the applicant L M Dingle (self-represented) -- 1 of 6 -- 2 SOLICITORS: VAJ Byrne & Co for the applicant [1] Morris and Myra Dingle had five children, Peter, Bradley, Lindsay, Debbie and Jane. Mr Dingle predeceased Mrs Dingle. The respondent, Lindsay Morris Dingle, was placed in bankruptcy on 15 July 2016 but discharged from bankruptcy on 17 September 2019. This is relevant only to the form of the will of Mrs Dingle. [2] Mrs Dingle executed a will on 30 August 2017 and dealt with her only significant asset, her residential property at 26 Drummers Creek, Mt Perry, by requiring it to be sold and the balance of her estate to be divided equally between her five children. Special provision was made, however, in respect of Lindsay, with the placing of Lindsay’s share into the Lindsay Dingle Family Testamentary Trust. Furthermore, Lindsay was provided with a right to continue residing free of rent in the Drummers Creek Road property for 12 months from the date of passing of Mrs Dingle. [3] Mrs Dingle passed away on 18 August 2018. The will had provided for the applicant, Bradley Morris Dingle and the respondent Lindsay Morris Dingle to be executors of the will. Probate was granted in respect of the will on 20 April 2021. Although he had been granted probate, Lindsay did not move out of the property at 26 Drummers Creek Road twelve months after Mrs Dingle had passed. From this point on, Lindsay found himself in a position of conflict with his duty as the executor of the estate requiring him to ensure that the terms of the will were carried out, which required Lindsay to vacate the house, which he refused to do. [4] Eventually on 17 March 2022, the property was sold to one of Lindsay’s sons at proper commercial value and with expenses coming from the estate, there is little under $200,000 left in the estate. [5] The only matter that Bradley and Lindsay agree upon is that the estate is small. Bradley and Lindsay as co-executors of their mother’s estate disagree on several matters of substance relating to the conduct of the estate. These include claims regarding unaccounted vehicles and plant including a Holden Rodeo vehicle, an Isuzu diesel truck, tractor attachments, and five tine ripper. Lindsay alleges these are all assets of the estate and ought to be included in the estate, whereas Bradley -- 2 of 6 -- 3 contends those items were not at all part of the estate but rather had been given away by Morris Dingle in his lifetime. [6] Lindsay also alleges that his siblings are indebted to the estate with respect to the sale of cattle in 2014, whereas Bradley contends that after the sale of the cattle the monies were in fact paid to Morris and Myra Dingle and so there is no debt. Lindsay alleges that his sister, Debbie, took Mrs Dingle’s jewellery from her home in 2016, however, Debbie denies this and Bradley does not consider the allegation to the true. There are therefore several disputes between the executors which have proven to be irreconcilable but do not place Lindsay in a position of conflict. There are, however, several serious matters in which Lindsay is clearly in a position of conflict. [7] The first is that Lindsay does not agree with the rental adjustment quantified by Bradley. Bradley contends as executor that as Lindsay has held over in the property of 26 Drummers Creek Road from the point that he ought to have left the property (18 August 2019) to the date the property was sold (17 March 2022) that he ought to pay a commercial rate of $225 per week for those 134 weeks, an adjustment of $30,150. Lindsay disputes this calculation. He further says the estate is indebted to him in the sum of $20,847 for expenses paid by him for his mother during his mother’s life and also paying for Mrs Dingle’s wake. Bradley does not agree that these sums are properly payable. [8] Lindsay’s wife, Tanya, has claimed $61,135 from the estate being care that she alleges that she provided to both Mr and Mrs Dingle during their lifetime. Bradley contends that there ought to be no such payment as, at the time, Lindsay, Tanya and family were residing with Mr and Mrs Dingle without paying any rent as part of the normal give and take of a family life. It is unnecessary in the current application to resolve any of those issues. [9] On 15 March 2023, Bradley filed an application seeking the removal of Lindsay as an executor from his late mother’s will pursuant to s 6 of the Succession Act 1981 (Qld). [10] During the application, Lindsay, who appeared for himself, was asked for submissions upon the issue of the difficulty of him continuing as an executor when he and his family were making claims against the estate. Lindsay, who submitted that -- 3 of 6 -- 4 he ought to continue on as an executor and the matter be referred to arbitration, suggested five reasons why his brother Bradley’s application ought not to succeed. [11] The five grounds were: (a) Under Mrs Dingle’s earlier will, Lindsay was to receive a bigger share in the estate. (b) A prior unnamed carer had engaged in elder abuse of Mrs Dingle, leaving her penniless and that Lindsay and Tanya had helped Mrs Dingle. (c) That the firm of solicitors who drafted Mrs Dingle’s will had failed to obtain probate of that will or Mr Dingle’s will and that was an irregular occurrence. (d) That although probate of the will had been granted on 20 April 2021, there had been substantial delay in administering the estate. (e) That there had been irregularities on behalf of both Bradley and Peter Dingle acting as executors in their father’s estate. [12] I would conclude that none of the matters raised by Lindsay are capable of overcoming the inherent difficulty that Lindsay faces as being in a position of conflict with his duties as executor of his mother’s will and his own personal interest. At least from 18 August 2019 when Lindsay and his family did not vacate the residence at 26 Drummers Creek Road, Lindsay has been in conflict with his duties as an executor of the estate. [13] Of the broad powers provided in s 6 of the Succession Act 1981 (Qld), Jerrard JA (with whom McMurdo P and Helman J agreed) said in Baldwin v Greenland1 “[44] The jurisdiction, both statutory and inherent, is a supervisory and a protective one. It is always appropriate and necessary for a court asked to exercise it to have regard to the testator's wishes as to the identity of an executor or trustee. The testator's choice may be based on loyalty, or on respect, or on necessity, or on the profession of the chosen person, or on other matters the testator knew about the chosen person; the reason for the choice might never be clear to a court. The overriding assumption must be that the testator thought the person chosen was worthy of trust, even when well aware when making a choice of existing hostility (from family members) toward the chosen executor or 1 [2007] 1 Qd R 117 at page 130, para [44]. -- 4 of 6 -- 5 trustee, or of other grounds for doubt about the wisdom of the choice. The decision in Gowans v Watkins to which Mr Stephens referred, is an example of a court respecting a testator's wishes, where no great mischief in administering the estate had been done by the person chosen by the testator, and where there were serious family hostilities. But the overriding object of the power remains the due and proper administration of estates.” [14] Whilst it is plain that there is a strong assumption that the testator thought that Lindsay was worthy of trust in acting as her executor together with Bradley, it seems to me that the overriding object of the powers contained in s 6 is the due and proper administration of the estate. In this case, there are several disputes between Lindsay and his siblings. Each of the beneficiaries of the will, being Lindsay’s siblings, have been served with the application and agree to the orders being made. Lindsay has raised several issues that are unresolved and in a small estate, the resolution of those issues may exhaust much of the funds of the small estate. The due and proper administration of the estate of Mrs Dingle cannot occur whilst Lindsay is an executor of the estate, holding, together with his brother Bradley, a grant of probate, as Lindsay is in conflict with the estate. [15] The office of an executor of an estate carries with it a fiduciary duty at all times to avoid conflicts of interest and duty. Any executor, even acting ignorantly, who breaches this duty places themselves at risk as they are plainly not fulfilling their fiduciary duty to the estate. As Lindsay has been in breach of his fiduciary duty as an executor of the estate, I would conclude that the orders ought to be made for his removal as an executor and that he bear the costs of the application. [16] It is appropriate the following orders be made: 1. Pursuant to s 6 of the Succession Act 1981 (Qld), Lindsay Morris Dingle be removed from the office of executor of the estate of Myra Elisa Ann Dingle (deceased). 2. Pursuant to s 6 of the Succession Act 1981 (Qld), the grant of representation to Bradley Morris Dingle and Lindsay Morris Dingle made in the Supreme Court at Rockhampton on 20 April 2021 be revoked. 3. A grant of probate of the will dated 30 August 2017 be granted to Bradley Morris Dingle, subject to the formal requirements of the Registrar. -- 5 of 6 -- 6 4. Pursuant to ss 82 and 90 of Trusts Act 1973 (Qld), all property of the estate in the Bradley Morris Dingle and Lindsay Morris Dingle as legal personal representatives vest in Bradley Morris Dingle as executor of the will. 5. Bradley Morris Dingle as executor has liberty to apply. 6. As to the applicant’s costs: a. the respondent shall pay the applicant’s costs of and incidental to this proceeding personally; and b. any shortfall between the costs actually recovered from the respondent and the applicant’s costs of and incident to this proceeding assessed on the indemnity basis shall be paid by the estate. -- 6 of 6 --