TSAKNIS as Executor and Trustee of the Estate of GEOFFREY DOUGLAS ROLAND LILBURNE (DEC) v LILBURNE

[2010] WASC 152

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Probate and Administration
2. › Grant of probate
3. › Double probate
4. › Application by co-executor granted leave to come in and prove
5. › Caveat by existing executor against double grant
6. › Whether existing executor has standing to oppose double grant
7. › Whether sufficient cause to order trial of issue whether co-executor should be passed over
8. › Administration Act 1903 (WA), ss 36, 63
1. Probate and Administration
2. › Passing over executor
3. › Named executor seeking double grant
4. › Grounds for passing over
5. › Conflict of interest
6. › Hostility between co-executors
7. › Failure to disclose estate assets
8. › Residence out of jurisdiction
9. › Whether welfare of beneficiaries and due administration of estate require passing over
1. Trusts and Trustees
2. › Trustee's directions
3. › Application under s 92 Trustees Act 1962 (WA)
4. › Scope of jurisdiction
5. › Whether jurisdiction extends to question of suitability of co-executor for double grant
6. › Whether hostile disputes between trustee and beneficiary preclude use of s 92 procedure
7. › Trustees Act 1962 (WA), s 92
1. Trusts and Trustees
2. › Costs
3. › Costs of application for trustee's directions
4. › Whether beneficiaries entitled to costs out of trust fund
5. › Solicitor-client basis
6. › Whether costs should be reserved pending determination of substantive cause
7. › Trustees Act 1962 (WA), s 97

Quick Take

An executor who has been granted probate in common form has standing to lodge a caveat against, and oppose, an application for double probate by a named co-executor on grounds of the co-executor's suitability or competence, even though the executor cannot challenge the validity of the will already proved. The s 92 Trustees Act jurisdiction extends to questions about the suitability of a co-executor to obtain a double grant, as such questions affect the administration of the trust. On an application for trustee's directions under s 92, all beneficiaries properly and necessarily joined and heard are entitled to their costs out of the estate on a solicitor-client basis, even where the underlying dispute is hostile and the substantive cause remains to be tried.