Bryant, Re [1990] QSC 404

' 10 20 30 -IN THE SUPREME COURT OF QUEENSLAND CHAMBERS BEFORE MASTER WHITE BRISBANE, 5 DECEMBER 1990 ~-·~·,...,.,.,,....... _..... _~-.-~ lnr::v1sEn coPIEs ~7ssu'ED'l · - - Court fkportin~J Bureau I _ oa~e: 11 !j)«J <7o l --~........... o.s. No. 213 of 1987 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) IN THE WILL OF ISABEL CAROLINE BRYANT, late of 9 Attunga Crescent, Buderim in the State of Queensland, (deceased) JUDGMENT MASTER WHITE: In this application it is. ordered that the summons seeking an order that the account of the administration of the estate of Isabel Caroline Bryant from 12 August 1985 to 9 October 1987 be passed, be adjourned to a date to be fixed and that the executor not be allowed a commission as executor in connection with his administration ) of the estate. The costs of pr~paration, filing, examination and of the hearing of this examination are reserved. It ~ay be necessary, Mr. Grant-Taylor and Mr. Duncan, to read the reasons because I have come to the view, unhappily I hasten to say, that the sums of money in dispute with respect to the $2,000 and the interest on that money and the money in Jacey _Bryant's :account are ·matters. 'in 10 20 30 40 50 50 _ 60 - -.. - contention between the parties. That being so, I cannot deal with it in the summary way and so you will have to go to action. I have not made any orders as to that because I think it is something that the parties need to reflect upon 60 . ,._ .. Printer, Qld. -- 1 of 20 -- very seriously before they embark upon an action in relation to such small sums of money. So, I have adjounied the SUI1UllOllS for accounts on . -F the basis that some agreement might be reached between the parties in relation to the passing of those accounts, so 10 that it is open for you to come back to me for further 10 directions in relation to the matter. I really feel I cannot resolve that issue - in other words, give you directions as to how that is to proceed - until you really have had a chance to look at the reasons. c 20 I publish my reasons. 20 cMASTER WHITE: So that application having been adjourned, it is open to you to bring it back on or, if you like, I will let you have liberty to apply. That may be 30 more satisfactory. So I will add to my order that both 30 part1es have liberty to apply in the giving of two days notice in writing. c c40 40 -----·- ----··--·------- \r · r 1. - G o ( ' so so 60 60 ,1ter, Old. 2 -- 2 of 20 -- THE SUPREME COURT QF QUEENSLAND O.S. No. 213 of 1987 Before Master White CATCHWORDS: IN THE WILL OF ISABEL CAROLINE BRYANT, late of 9 Attunga Crescent, Buderim in the State of Queensland, (deceased) REASONS FOR JUDGMENT - MASTER WHITE Delivered the fifth day of December, 1990 Deceased Estate passing of accounts executor's commission- s.68 Succession Act- whether jurisdiction to go behind Certificate of Taxing Officer and Deputy Registrar - Re .McNamara- Telford v. Morrison REPRESENTATIVES: Applicant - Mr. Duncan (Solicitor) Power & Cartwright (Gympie) HEARING DATES: Respondent - Mr. Grant-Taylor (Counsel) R.B.R. Nettleton (Buderim) 10th October, 1990 -- 3 of 20 -- IN THE SUPREME COURT , ·oF QUEENSLAND O.S. No. 213 of 1987 IN THE WILL OF ISABEL CAROLINE BRYANT, late of 9 Attunga Crescent. Buderim in the State of Queensland, (deceased) REASONS FOR JUDGMENT - MASTER WHITE Delivered the fifth day of December, 1990 Ian Godfrey Bryant, the proving, substituted executor of the estate of the late Isabel Caroline Bryant, has applied by summons that his account of the administration of the estate of his late mother from the 12th August, 1985 to the 9th October, 1987 be passed and that he be allowed commission as executor in connection with his administration of the estate and the costs of the preparation, filing, examination and passing of the account. Roderic Leonard Bryant, the non-proving substituted executor and brother of Ian Bryant, is the respondent to the summons. At the outset, I should observe that this seems to be an unhappy family squabble over the administration of a very modest estate. The deceased died at Miles on the 29th September, 1984. She was formerly a resident of Buderim. By her last will dated the 3rd August, 1972 she appointed her husband as her executor. He predeceased her and in. that event the will provided that her two sons should be her trustees and executors. A daughter, Carolyn Ann Campion, was to be substituted in the event of their prior decease. Probate was granted on the 12th August, 1985 to Ian Bryant. A lack of cordiality between the brothers existed, so far as I can discern on the material, from prior to their mother's death. It has descended to acrimony since then, particularly on the part of Roderic Bryant and continues to . the present time. Their -- 4 of 20 -- 2 -~ister, Carolyn Anh Campion, has played no overt part in these proceedings, save to swear an affidavit as to the personal·items received by her from her mother's estate. By an originating summons dated the 9th March, 1987, Roderic Bryant sought·an order that Ian Bryant make and file an account of his administratfon of the estate. Senior Master Lee Q. C. (as he then was) made an order on the 14th May, 1987 by consent that Ian Bryant make and file an account of his administration and, that upon the filing of the account, he proceed to have such account examined · and passed. The executor's accounts were examined on the 9th March, 1989. Roderic Bryant filed a memorandum and an affidavit challenging both particular!~ and generally the passing of Ian Bryant's account as executor. The Certificate of the Acting Taxing Officer and Deputy Registrar is dated the 21st August, 1990. It might be mentioned that there was a dispute as to the payment of the examination fee which is referred to in a Report to the Court by the Taxing Officer dated the 12th September, 1989. The accounts were certified as correct except for certain relatively minor matters. On the hearing of the application most of those items were sufficiently explained by affidavits from Ian Bryant and Robert Nettleton, solicitor for Ian Bryant. A number of queries related to bank errors and incorrect dates. An affidavit by Carolyn Ann Campion dealt with the balance to my satisfaction. Apart from certain personal items from the estate said to be for collection by Roderic Bryant as representing his share in specie the entire estate has been distributed to the beneficiaries, namely the testatrix's three children. The total amount realised for the estate w~s $81,164.31. The total disbursements amounted to $7,168.11. The amount available for distribution at 14th September, 1987 was $75,996.20. The estate has been fully distributed. Mr. Grant- -- 5 of 20 -- 3 -.~·Taylor, who appeared. _for Roderic Bryant,. submitted that in addition to those matters set out in the Taxing Off:Lcer' s Certificate as not satisfactory, there were.three further areas of concern not dealt with by the Taxing Officer but raised in Roderic Bryant's affidavit objecting to the passing of the account. He s~bmitted that thos~ concerns were such that the accounts ought not to be passed without further investigation. It is submitted that there was no necessity for Ian Bryant to have taken out probate, given that the estate was small. The costs of probate amounted to $1,770. I will . consider that objection below. The second complaint is set out in paragraphs 9 and 12(e) of Roderic Bryant's affidavit, filed on the 23rd March, 1988, namely that the final distribution of the estate does not include proceeds of an interest bearing deposit in the name of Carolyn Ann Campion of $2,000 nor the proceeds of savings account no. 901145, also in her name, of $879.83, nor the proceeds of savings account no. 900791 in the name of Jacey Bryant (Roderic Bryant~s daughter) in the sum of $457.39, the proceeds of which.accounts, it is said, have been conceded by Ian Bryant to constitute assets of the estate in a letter dated 19th March, 1985. That letter provides: "I list hereunder the moneys known to me and I am agreeable that they be included in the estate. I. C. BRYANT. Cheque Account, Westpac, Buderim. A/c No. 200061 Balance as at 11.3.85 405.54 I. C. BRYANT Savings Account, Westpac Buderim A/c No. 900792 457.49 I. c. BRYANT Savings Account, Westpac Buderim A/c No. 2207 1382.93 C.A. CAMPION Savings Account, Westpac Buderim A/c No. 901145 879.83' I.G. BRYANT Savings Account, Westpac Buderim A/c No. 900912 . 5754.65 I.G. BRYANT Loan 2000.00 Mark Bryant 600.00 approx. Jacey Bryant 600.00 approx. -- 6 of 20 -- C.A. CAMPION I.B.D. (Interest from which was paid into Savings Account No. 901145) 2000.00 My mother's wishes prior to her death were that the money in bank accounts-in the name of Mark Bryant & Jacey Bryant, remain theirs as gifts, and that the $2000 I.B.D. in C.A. Campion's name be divided evenly as gifts to her 4 children." The disputes about these sums of money arise out of the - distribution by the testatrix of part of her late husband's superannuation benefit to her children and to their children. It appear~ that the late Mr. Bryant received $12,990 as a lump .sum in 1969 on early retirement (see Exhibit "EE" to affidavit of Roderic Bryant filed 9th March, 1987). I can do not more than glean what occurred in the distant past by reference to the correspondence between the brothers after the death of the testatrix. Roderic Bryant takes the view that the distribution of _this money to the testatrix's children and her grandchildren was as trustees for her so that she would not compromise her age pension. There seems to be no dispute that the distribution was so that she could continue to receive the pension but it is not at all clear on the material that those to whom the distribution was made _held the money on trust for the testatrix so that it formed part of her estate. A finding that it was held on trust for her benefit would involve a finding that the testatrix intended to defraud the revenue. That might have further consequences. It would appear that more money was paid to Carolyn Ann Campion and probably Ian Bryant than was paid to Roderic Bryant and his children. Roderic Bryant alleges in his correspondence with his brother that he paid income tax on the income earned by those sums of money in his and his children's names but that the testatrix had the benefit of that income. He alleges that it was otherwise with his brother and sister. Ian Bryant responded to Roderic Bryant in relation to this matter as -- 7 of 20 -- 5 follows:- "Rod, as I understand Dad's Superannuation money, Dad obtained a sum of money, unknown to me, when he retired from the·Bank, and any other superannuation-has been paid· in a small weekly pension to Mum. following Dad's death. Dad's Estate was left to Mum for her own purposes, in that Estate was Dad's Superannuation, and I believe it was up to Mum to decide how she used this money. I have spelt out clearly the sums of money in_my name which no doubt were a substantial portion of the super. We are dealing with the Assets of Mum's Estate and not with Dad's superannuation~ Just before Mum died, she explained that she had $2000 in the name of Carolyn Campion which was to be shared equally by her 4 children, as was the two savings accounts in your children's names to become their property. The $2000.00 is in an I.B.D. and the interest was automatically paid into Mum's Savings Account. As I stated in my letter of 29th November, I am quite happy that you contact Westpac Buderim re Mum's monies. I' have no statements of the Savings Account in my name and have never acted on this account. I do not believe the Campions have taken any money." In a letter dated 28th March, 1986 from Power & Cartwright (for Roderic Bryant) to R.B.R. Nettleton & Co. those solicitors raise for consideration again the question of the I. B.D. of $2,000 in Carolyn Ann Campion's name and the savings account.al~o in her name into which interest from the I.B.D. was paid. Ian Bryant replied by letter dated 11th June, 1986 as follows:- "We are in receipt of your letter of 28th May. You refer . to an I .B.D. of $2,000 in the name of C.A. Campion, a Savings Account at Westpac, Buderim branch, and Bank . accounts in the names of Mark & Jacey Bryant. These accounts were considered as gifts, and were at ·no time intended to form part of the estate." Considerable time has elapsed since these transfers were made into the various names of the children and grandchildren. The donor is now deceased, and the sums involved are very modest. Further, the whole issue has been clouded by bad feeling. There has been inconsistency in dealing with the amounts set out in the letter of 19th March, 1985-referred to above from Ian Bryant, and inconsistency in the characterisation of those sums in Carolyn -- 8 of 20 -- 6 "A.nn Campion's name.· ' Such· inconsistency. was ·bound. to .arouse suspicion in one disposed to find evidence of dishonest dealing. No explanation was forthcoming.until the11th June, 1986 asto why those sums were not to be included after. the earlier indication· to the ·contrary. Further investigation will be difficult, inco~clusive ~nd far~mqre expensive than the sums of money involved. Further, Clause 6 of the will, discussed below, would, arguably include any money standing in any account in the testatrix's name or for her benefit, (unless clearly derived from the late Mr. Bryant) so that.Carolyn Ann Campion was probably entitled to more than she received. Roderic Bryant complains in paragraph 12(e) that no accounting has been made in respebt of ( an alleged debt owed.by Carolyri Ann C~mpion to the estate. This ( had been raised in correspondence between the brothers and Ian Bryant wrote that he was satisfied that no debts were owed to the estate· by· Mrs ..·Campion. ~ It appears that money coming to the testatrix from another estate was loaned to Carolyn Campion by her mother and that pursuant to Clause 6 she is entitled to that sum-.. That is no longer pressed before me. Since there is a 'contested question of fact which cannot be resolved in a summary way~~n·relation to the sums of money derived from the late Mr. Br~ant's superannuation payment, _that matter will have to be resolved by action. I would hope that further reflection would persuade the parties that this could be described as a course that will be productive of more bitterness and expense. The other complaint is with respect to the various items of personal property belonging to the testatrix which were distributed in specie or sold at auction. Roderic Bryant complains that many of those items have been grossly undervalued except for those awaiting his collection which he says are over valued. Mr·. Grant-Taylor does not sug.gest that his client has c ( -- 9 of 20 -- 7 "·the- expertise to put· a value· on the various items which he purports to do-in his :affidavit. But he·does submit:that the mode of-distribution has ·been contrary to· law. Clause 6 of the will provides:- "I GIVE AND BEQUEATH· to my daughter the said CAROLYN ANN CAMPION all other property and effects owned by me and not derived by_ me from· my said husband in the event of his predeceasing me." Clause 7 of the will purports to dispose of the remainder of the testatrix's personal property and provides as follows:- "As to the rest, residue and remainder of my capital Estate, including the property mentioned in Clause 5 hereof [motor vehicles or household furniture and effects owned by testatrix] hereof in the event of my said husband predeceasing me I GIVE DEVISE AND BEQUEATH the same to such of.my children as shall survive me in equal shares .. .'." As , can be .· seen Clause 6 is not clear but the executor interpreted it. as devising to Carolyn Ann. Campion all items of property personal to the testatrix apart from her interest in any motor vehicle or household furniture and effects derived from her late husband. ·Carolyn Ann Campion has sworn in an affidavit that she received certain personal property belonging to her late mo.ther which would fall within Clause 6 of the will being a quantity of jewellery, a glory box and dressing table set and, in addition, - certain· other property which is said to be her share of· the remaining personal property pursuant to Clause 7. The.value of the property devised pursuant to Clause 6 is irrelevant but is estimated by the executor to be $100 and by Roderic Bryant $1,100. It appears that the property remaining after Carolyn Campion's entitlement under Clause 6 was taken out, was simply divided into three portions. Ian Bryant states in one of his letters to his brother. that the method used was for each of the three beneficiaries to.have returned gifts which had been given by that beneficiary to the testatrix during her lifetime and then /_ -- 10 of 20 -- 8 ato make a further relatively arbitrary division of the remaining property. On a plain reading of Clause 6 of the will Carolyn Ann Campion-was entitled to any gifts given to the testatrix apart from those derived from her husband but she has been happy enough with the division made. Roderic Bryant did not participate in the selection process~ No noti_ce was given to him by the executor pursuant to s. 33 ( 1) ( 1) ( ii) of the Trusts Act which provides:- "before any such appropriation is effectual, notice thereof shall be given to all persons not under a disability who are interested in the appropriation, and to the parent or guardian of any infant who is interested in the appropriation and to the person having the care and management of the estate of any person who is not of full mental capacity, and any such person may within one month after receipt of the notice or, upon his application to the Court within that month, within such extended period as the Court may allow, apply to the Court to vary the appropriation, and the appropriation shall be conclusive save as avaried by the Court;" He further complains that no accounting has been made with respect to a number of items of household furniture which he ' ·. •; swears had been located in his mother's house at Buderim. He further complains that no accounting was done of the testatrix's clo_thing, accessories and footwear. There has been a breach of the Trusts Act in relation to the distribution in specie. No ·notice was given to Roderic Bryant. All of the items are the kinds of chattels that one would expect to find in a modest home, for example, kitchen crockery, cutlery and utensils, a cassette player, an esky, hanging baskets, cards, records and cassettes, assorted books, cases and torches. Mr. Grant-Taylor agrees that there is nothing that can now be done to rectify this state of affairs but that it should be reflected in any order as to costs which I make and any order as to executor's commission. Roderic Bryant has exhibited many letters passing between himself and his brother dating from the death of the testatrix. -- 11 of 20 -- 9 "'Many are direct:communications and some come through solicitors. Clearly not all of the correspondence between them is included. Other communication took place by .way of telephone .. or direct conversations according to the correspondence. exhibited. The letters show that from the outset Roderic Bryant was antagonistic to his brother'~ assumption of responsibility in relation to the testatrix's estate. The first letter exhibited is from Ian Bryant to Roderic Bryant dated the 12th October, 1984, shortly after-their mother's death. II Dear Rod, I will set it out in full:- P.O. Box 46, Warren. 2824 12/10/1984 I enclose herewith the following documents 1. Copy of Mum's Will . 2. Original & 2 copies and photostat of contents of Safe Custody Packet No. 720 3. Letter to Welsh & Welsh asking for the title of 9 Attunga Crescent [testatrix's home at Buderim] Mr. Col Croydon has asked if you would sign · the original & 2 copies of the list of the Safe Custody Packet and return same to him. I enclose a photostat for your records; His letter of condolence is also enclosed. There is no longer a firm of Fox Welsh & Wilson. I spoke to Mr. Col Croydon about getting a solicitor at Buderim to handle the Estate and he suggested Messrs. R. B. R. Nettleton & Co., P.O. Box 10, Buderim Q. 4556, I had an interview with Mr. Nettleton who struck me as efficient and suitable to handle the Estate. He gave an approx. quote of $238 to transfer the house into our nam·es. I would be grateful if you would sign the .letter to Messrs. Welsh & Welsh and forward same on to them. I trust I have explained the situation and if there is any matter at all which we can help with please contact me. Love to all your family Your Brother Ian II Roderic Bryant replied by letter. bearing date the 17th October, 1984 and I set his response out in full:- II .M.S. 624, MOTHAR MT. 17.10.84 -- 12 of 20 -- 10 Dear Ian, From your actions, telephone calls and letter you have ignored that I am joint executor of Mum's.will and as such have to be consulted and agree to any actions taken with respect to it e.g. Solicitor to be used etc. I would like you to confirm that in the future you will not act singularly butin consultation and in mutual agreement with myself. · I wouid like you to confirm what arrangements have been made to maintain Dad's and Mum's house and garden~ Also what items documents etc. have been removed from the house by Carolyn Campion and yourself. With-respect to your conversation regarding the car under the terms of the will it is not Carolyn Campion's to give anyone notwithstanding if my son Mark wants a car he will do as his Grandfather H.G. BRYANT and I did earn the money for it himself by working and saving. As to the money Mum received from the commuting of Dad's superannuation which she had in different bank a/c's, A.G.C. debentures etc. in your name Carolyn Campion, her childrens names, my kids names and my name I would like access to all bank statements and books etc. · · Could you elaborate on your ideas on what action you would suggest should be taken with respect to Dad's and Mum's house and contents after Mum's Estate is finalised. Would particulars of Mum's debts and liabilities be available and the bank books and statements of the a/c's legally in Mum's name? I hope in the future you can be honest and open with all your dealings with me and perhaps treat me as your equal. Hoping this letter finds your wife and yourself both well and happy. Rod Bryant II It appears that little happened and Mr. Nettleton, solicitor for Ian Bryant wrote to Roderic Bryant in a letter bearing date 19th November, 1984 as follows:- II R.L. Bryant Esq., M.S. 624, Mothar Mountain, via GYMPIE Qld 4570 Dear Mr. Bryant, YOUR LATE MOTHER'S ESTATE As your brother has probably advised you we are -- 13 of 20 -- 1 1 currently in the process of arranging the transfer of your late mother's Attunga Crescent property into the joint names of yourself, your brother and your sister. Before we can proceed any further we need from your brother information about birth dates (which-. he has told· us is ·in a letter on its way to us), and an executed Authority, directed to Welsh and Welsh, signed by you . . Mr. Col Croydon, who is aware· that we are acting for the estate, has asked us to request the return of the s~fe-custody authority. If you wish we can present the authority to the bank and hold the contents in safe-custody, in our safe, pending distribution. We look forward to your reply. Yours faithfully, (sgd)R.B.R. Nettleton" The letter from Roderic Bryant to his brother of the 22nd November, 1984 reads:- II Dear Ian, M.S. 624 MOTHAR MT. 22.11.89 I find it disappointing that you haven't answered my letter of the 17.10.84 and assume by not doing so you have something to hide. If a letter written to me by Mr. R. Nettleton is any indication he is not acceptable to me as a fit person to handle Mum's estate. I offer you the following alternatives:- 1 . You answer my letter of the 17.10. 84 and forward to me the documents and details I have requested. Failing this if Nettleton has these particulars.he could forward them to me or confirm he has them. In particular I require the details of Dad's superannuation money which was in yours, Carolyn Campions and other family names. 2. You agree to appoint Pat Spranklin, 930A Logan Road, Holland Park Brisbane 4121 as the solicitor to handle Mum's estate. 3. You agree to have Pat Spranklin represent my interests in Mum's estate and his costs be deducted from Mum's estate. 4. A solicitor mutually acceptable to both of us be appointed to handle Mum's estate. If I am well and able enough I intend to go to Buderim to inspect the house next week. If you object or wish to be present when I do this please notify me. Pleased to report my wife ahd kids are well and happy and hope you and your wife are the same. Rod Bryant II -- 14 of 20 -- 12 Ian Bryant replied to this letter on 29th November, 1984 as follows:- II P.O. Box 46, WARREN. N.S.W. 2824 29th November, 1984 Dear Rod, I refer to-your letter of 17th October, and can assure you that I have not ignored your being a Joint Executor of Mum's Estate. I am happy to consult with you on all arrangements and would like to see us have mutual agreement. I have arranged for Mum's gardener to go on looking after the garden and for Mr. Perry Lyons and the Lewises to keep an eye on the house. As you are aware I went into the house in the Company of Mr. Lyons to pick up a copy of Mum's will. I have been in contact with the Westpac Bank at Buderim and have asked that they advise you of all moneys held in the name of Isabel Caroline Bryant and Ian Godfrey Bryant. I am agreeable for you to contact Westpac Buderim re Mum's money should you so desire. Mum made a loan of $2000.00 to me which I shall repay on settlement of the Estate. ·It ~as Mum's wish to me that the home be sold. I wish to see the home sold and would like to know your views. As I understand the will, the contents and car are to be split 3 ways, and that all Mum's personal effects are Carolyns. Your letter of 22nd November is to hand and I can assure that Mr. R. Nettleton is acting in all our best interests, he does not have any of Mum's Bankbooks or Bank Statements, and he has not been advised of Dad's superannuation money. I have given you all the details as I know them and copies of documents that I have. I am anxious to keep solicitors charges to a minimum and the last thing Mum would want would be for us to arguing over her estate. There has been nothing further done with regard to the estate since 17/10/84, because you have not signed and forwarded the documents regarding the Safe Custody Packet No. 7 2 0 to the Bank, there is also the letter to the Solicitors Messrs Welsh & Welsh asking for the house title. I list hereunder a number of accounts which urgently need your approval for payment. The Bank would settle these accounts if you approve. 1. S.E.Q.E.B. Electricity 2. Maroochy Shire - Rates 3. New Zealand Insurance - House Contents 67.87 253.61 1 08. 11 102.31 -- 15 of 20 -- 13 4. -Brisbane Crematorium Ltd. - Inscription 5. M.B. Dark, Chemist 20.00 26.68 I enclose a formal :request on Welsh & Welsh, which is similar to my hand-written request which I hope you will sign and forward to Welsh & Welsh. I have no objections to your going to inspect the house, and I would like your agreement for Carolyn to be able to inspect the house and to attend to Mum's belongings. I do not wlsh to have any arguments over Mum's Estate and ·I hope you are agreeable that Mr. R. Nettleton can handle the Estate. I am glad to know you are all well & happy. Yours Brother Ian II It appears that the real issue in dispute is a search by Roderic Bryant for his late father's superannuation money. He declined ) to sign the authority for the house to be.transferred into the joint names of himself and his brother ·and sister. He was regularly requested to do so by letters from his brother and from R.B .. R. Nettleton &· Co.; solicitors. Mr. Nettleton wrote inter alia on the 18th December, 1984:- 11 A considerable amount of time has elapsed since our initial contact and no reply has been received. We must assume you wish either to not exercise your executorial role or, to be obstructive." By the 2nd January, 1985, Roderic Bryant had appointed solicitors to act on his behalf. Messrs. Power and Cartwright indicated that their client did not wish to relinquish his executorship. Solicitors R.B.R. Nettleton & Co. replied to Messrs. Power & Cartwright that they had been approached by Ian Bryant and Carolyn Campion to effect registration of the beneficiaries as the owners of the testatrix's house and they had only in very recent times started acting generally for the estate. An example of the difficulties which were, in my opinion, principally brought about by the attitude of the respondent, Roderic Bryant, ·was in the matter of the gardener, a Mr. Neil Hamilton, who -- 16 of 20 -- 14 ocontinued to perform gardening tasks about the house which had been locked up for the months since. the testatrix's death. There was an outstanding account for $120 from Mr. Hamil ton. He charged $15 a fortnight for his services. There was a continual request that Roderic Bryant authorise that he should be paid his money. ·That was adverted to before the end of 1984 and was the subject of urgent correspondence on the 18th February, 1985. Finally, on the 1st-March, 1985 Messrs. Power and Cartwright indicated that Roderic Bryant authorised the continued employment of the gardener. In view of the suspicious and uncooperative attitude of Roderic Bryant as set out in the correspondence it clearly became necessary if the estate was to be administered at all for one of the two executors to seek probate. In the circumstances the obtaining of probate became a necessary expense of the estate. The cost of obtaining probate was thus a proper expenditure on the part of the proving executor. In - summary, in relation to the matters raised by . the respondent: ·I· accept that the distribution in specie was not according to the:process of law envis~ged in the Trusts Act. It should also be noted that were Clause 6 to have been strictly applied ~ Carolyn Ann Campion would have been entitled to much more than she actually received, but she has apparently waived this right. I find that the cost of obtaining probate was a proper cost incurred by the executor. Since there is a disputed question of facts as to whether the moneys standing in accounts numbered 220396 and 901145 in the name of Carolyn Ann Campion and account numbered 900791 in the name of Jacey Bryant are part of the estate of the testatrix that will require resolution by action. In those circumstances· I am unable to pass the account of -- 17 of 20 -- 15 • Ian Godfrey Bryant . . . . The executor has also sought executor's commission for his pains.and trouble in carrying out his executorial duties. S.68 of the Succession Act 1981 provides that the Court may authorise the payment of "such remuneration.or commission to the personal representative for his services as personal representative as. it thinks fit ... " In Re Lack [1983].2 Qd.R. 613 McPherson J. sets out a brief history of executors' remuneration. He approached the. question of the quantum of the commission by reference to the number of hours associated with the. administration of the testator's estate, ~n tha~ .case involving care of stock, crops· . and ~ machinery. Although some letters relating to the administration D ·.·.·.·.~: ·•' of the.estate were ,actually written by the executor and routine matters attended to, . it appears, that the solicitor, the baz:k manager and the auctioneers and agents attended to the bulk of estate matters .. As has been observed, it is important that the estate should not pay twice for similar services particularly.a small estate, see Vance Executors Commission (1969).pp.127 et seq. Further, notwithstanding the difficulties, as I perceive ~ them,. in dealing with the respondent, there was a failure to provide the respondent with a proper account of the administration of the estate and there was a breach of trust in the manner specified. These are all matters which I can take into account in deciding on the matter of remuneration. Although the accounts are not to be passed on this application it seems appropriate that I deal with the question of commission so that it need not be reargued. I have concluded that the executor is not entitled to executor's commission for his pains and trouble in administering the estate. The executor has sought an order that the ,;costs of -- 18 of 20 -- 16 ctfreparing, filing, examination and passing of the account be paid on a solicitor and own·client basisout of the estate. Although requested to do so by Messrs. Power & Cartwright on behalf of Roderic Bryant, the executor did not provide proper accounts for his perusal and; that application for an account of the administration was brought. · Since the account has not been passed because of the contest over the superannuation money I shall reserve those costs. It was submitted on behalf of the executor that I had no power to go behind the Certificate of the Taxing Officer and Deputy Registrar issued the 21st August, 1990. The decision of Re McNamara [1895] 6 Q.L.J.R. 219 was cited as authority for this proposition. In that case certain beneficiaries under the will applied for an order that the Registrar inquire into certain objections filed on the passing of the executors' accounts. I was particularly directed to two passages appearing at p .-224: and "Asthe accounts are in theory passed by the judge, a party dissatisfied. with the Registrar's opinion on any point should require the matter to be referred to the judge before the report or certificate is signed." ~, 1 "In the case of accounts which are incorrect by reason of an omission of assets,· it may be that the Court cannot direct the inventory to be amended by the inclusion of the omitted item." With respect to the first, the present Rules provide for the examination of the accounts by the Registrar (0.73 rr.7,8} and the passing of those accounts on application to the Court. With respect to the second, 0.73 r.11 sets out the powers of the Court on the hearing of the ·application to pass the accounts. It provides:- "Upon the hearing of the application, the Court or a Judge may refer the certificate back to the Registrar for review, or may make an order that the account be passed with or without amendment and may allow the costs and expenses of examining and passing the same to the executor or administrator or trustee out ol the estate and may make such -- 19 of 20 -- f) 17 order as to commission as may be just, and may allow the trustee to retain out of the estate the costs and expenses of the examination and application or may make such other order as may be just. . . The Court or a Judge may also grant an extension of time for filing and passing further accounts." It should also be noted, with respect to the Full Court in Re McNamara, that ~ir John Nicholl i~ Telford v. Morrison (1824) 2 Add. 319; 1 62 E. R. 311 held that the Court was not merely ministerial with respect to the passing of an inventory .. He was of the view.that an inventory could be amended on the executor's own oath but could not be amended if the executor denied the further ~ssets. An action must commence to resolve the issues, see at p.-315. The present Rules of Court permit a greater flexibility as to what might be ~irected to be done in the case of disputes over accounts apart from an ordinary action, (see 0.73 r.13 and also Re Uebergang deceased O.S. No. J85 of 1982, unreported decision oe Master Lee Q.Cr 22nd March, 1983). Accordingly I will hear submissions as to the appropriate directions for dealing with the matter in contest between the parties. In an effort to confine the costs of this already expensive estate administration it is ordered that the summons seeking an order that the account of the administration of the estate of Isabel Caroline Bryant from the 12th August, 1985 to 9th October, 1987 be passed, be adjourned to a date to be fixed and that ·the executor not be allowed a commission as executor in connection with his administration of the estate. As mentioned above, the costs of the preparation, filing, examination and of the hearing of this application are reserved. -- 20 of 20 --