Coote v Fysh [1999] VSC 156

Supreme Court of Victoria|1999-05-18|Before: BEACH, J.

This is the return of an originating motion filed in the Court by the plaintiffs Anthony John Coote, Douglas Gerald Burley and Annette Jennifer Richards whereby the plaintiffs seek an order that the defendant Helen Elizabeth Fysh be removed as the surviving executrix of the will and estate of Jasper Lloyd Coote deceased (the deceased), and certain consequential orders.

The following is a brief summary of the background to the application.

The deceased was survived by two sons and two daughters, Anthony John Coote who was born on 11 August 1935, Peter Lloyd Coote who was born on 11 May 1941, Barbara Janet Burley who was born on 1 December 1938, and the defendant who was born on 29 September 1943.

The provisions in the deceased's will were such that because his wife had predeceased him his estate passed to his four children in equal shares.

By his will the deceased appointed his daughters to be joint executors of his estate. Probate of the will was granted to the executors on 16 January 1996.

The deceased's son Peter Lloyd Coote died on 26 October 1997. By his will he appointed the plaintiff Annette Jennifer Richards executor and sole beneficiary of his estate.

The deceased'sdaughter, Barbara Janet Burley died on 14 August 1998. By her will she appointed Douglas Gerald Burley executor and sole beneficiary of her estate.

The estate of the deceased consisted of Unit 1, 68 Dunloe Avenue, Mont Albert North valued for probate purposes at $130,000, a sum of $5,996.86 in a Commonwealth Bank account and a debt of $10,000 owed to the deceased by Anthony John Coote. The deceased's liabilities only totalled $205.20

Since the grant of probate to the defendant and her now deceased sister the beneficiaries of the deceased's estate and of more recent times the beneficiaries of his deceased daughter's and sons' estates, have been endeavouring to persuade the defendant to sell the unit at Mont Albert North so that the deceased's estate can be distributed. In that they have been singularly unsuccessful.

In mid 1966 the defendant moved into the unit and has remained in the unit to the present time. She has not and does not pay rent for the unit although she claims, perhaps quite correctly, that she has expended significant sums on the maintenance and upkeep of the unit.

There have been numerous attempts by the plaintiffs to persuade the defendant to take appropriate steps to sell the unit including the holding of a lengthy roundtable conference on 26 April last. But all to no avail.

At every turn the defendant has raised obstacles in the path of a disposition of the property and in my opinion has made totally unreasonable demands on the plaintiffs not only in relation to the administration of the deceased's estate but also in relation to the administration of her late mother's estate.

An inkling of the defendant's behaviour in that regard is to be gained from a perusal of Exhibit B to her affidavit sworn 9 May 1999 and by the fact that since October 1996 the defendant has engaged five different solicitors to act on her behalf.

And so one has the situation where the administration of the simplest of estates has not been completed more than three years since the grant of probate to the executors of the estate.

In my opinion the situation in this case is such that it can now properly be said that the defendant is unfit to act as executor of the estate or is incapable of doing so. In that regard see Monty Financial Services Ltd. & Anor. v. Delmo [1996] VicRp 7; (1996) 1 V.R. 65.

I make the following orders in the proceeding.

1. The plaintiffs are authorised to commence the proceeding by originating motion in accordance with Form 5C of the Rules.

2. The requirements of Rule 5.03(1) and Rule 8.02 of the General Rules of Civil Proceedings 1986 are dispensed with

3. (a) That pursuant to s.34 of the Administration and Probate Act 1958 the defendant be removed as surviving executrix of the will and estate of Jasper Lloyd Coote deceased.

(b) That Equity Trustees Limited be appointed as administrator with the will annexed of the estate of the said deceased in place of the defendant.

4. The defendant forthwith deliver up to the custody of Equity Trustees Limited the duplicate Certificate of Title to Unit 1, 68 Dunloe Avenue, Mont Albert North being Certificate of Title Volume 9702 Folio 977.

5. The defendant pay the plaintiffs' costs of the proceeding including any reserved costs.

Administration and Probate Act 1958

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