Fysh v Coote & Ors [2000] VSCA 150

5. The case has been unfortunately complicated by the fact that, although the appellant had some legal advice and representation in the course of acting as one of the executors and in attempting to resolve the differences she has had with her co-executor, the late Barbara Janet Burley, who died on 14th August 1998, and her other co-beneficiaries, and during the early stages of the application for her removal, her then current solicitor ceased to act for her on about 5 May 1999, which was certainly the date when he filed and served a notice of withdrawal of practitioner pursuant to the Rules, just five days before the adjourned and final hearing of the application on 10 May 1999. The Court has no reason to criticise that solicitor for his actions but, because the motion was not formally set down for trial, it was not necessary for him to obtain leave from the court to withdraw, on which application there might otherwise have been some inquiry as to the state of preparation of the appellant's case.

8. As it was, the appellant was or soon became aware that the hearing was likely to take place on 10 May, but at that stage no affidavit material had been filed on her behalf. Over the intervening weekend she prepared for herself a brief affidavit of some 12 paragraphs in which a few matters contained in the supporting affidavits of the respondents were controverted but most of that material appeared not to be disputed. As to the matter upon which she has placed so much weight over the years and during these proceedings, the alleged possible misuse of her father's moneys by her sister Mrs Burley, she referred to it merely as requiring Mr Burley "to assist in clearing up some concerns" she had had "about some discrepancies in my sister, Barbara's accounting in her capacity as power of attorney for my father", which had not then been resolved. She attached to her affidavit a document which was called a "request for further and better particulars" of what she set out as the possible discrepancies relating to various payments, in respect of which she sought an order from the Court that Mr Burley provide those particulars. For the rest she argued that two of the applicants, Mr Burley and Ms Richards, had no "real interest in the assets of the estate" because they had not obtained probate and, so it would seem, because they were not "legitimate beneficiaries of my father's will".

11. Although a primary ground of her present appeal (numbered 1) was that she was "unfairly disadvantaged as I was not given sufficient time to prepare my defence so that my evidence was incomplete", it is clear and undisputed by the appellant that when she appeared for herself before the learned judge she made no application for an adjournment of the proceedings on that or any other ground. Furthermore, although it is not a direct ground of her appeal, she asserted that she had not had the opportunity to cross-examine any of the respondents or the other deponent on their affidavits, but likewise it appeared and was clearly conceded by the appellant that she had neither given notice of her intention to do so (which in the circumstances might not be held against her), nor, more importantly, had she asked the learned judge for the right to cross-examine any of them. She sought to excuse that by saying that none was present in court, but she did not raise that issue at all.

14. In the circumstances the learned judge had before him essentially only the version of events put forward on behalf of the respondents. Although doubtless he gave the appellant as fair a hearing as could be expected where a party is unrepresented (and no direct complaint is made as to his Honour's conduct)[1], it is not surprising that in his relatively brief judgment he accepted the respondents' version of events. Thus he concluded that she had "raised obstacles in the path of the disposition of the property", which was the home unit and the sole asset of any real significance, and had "made totally unreasonable demands" on the respondents in relation to the administration of her father's estate. He pointed out that the other beneficiaries, or subsequently their representatives, had attempted to persuade her to sell the unit to enable the estate to be distributed, but that she had taken no such steps and had remained in the unit, not paying rent, up to the time of the application. He referred to the fact, then uncontroverted, that she had five different solicitors over the years which he said gave "an inkling of the defendant's behaviour", as did the "request for further and better particulars" annexed to her affidavit to which I have referred. He concluded that "the administration of the simplest of estates has not been completed more than three years after the grant of probate to the executors of the estate". Without further particularisation he concluded that it "can now properly be said that the [appellant] is unfit to act as executor of the estate or is incapable of doing so", referring in general terms to the judgment of Ashley, J. in Monty Financial Services Ltd. v. Delmo[2]. Having regard both to the circumstances of the present case and the wide range of issues canvassed by Ashley, J., I would assume that his Honour here based his opinion of unfitness on not only the delays in administering the estate but also on the appellant's incapacity to resolve the difficulties of administration having regard to her conflicts of interest with the estate and with her co-beneficiary Mrs Burley and latterly her estate.

17. The difficulties of Mrs Fysh's lack of representation in the present case have been exacerbated by her attempt to conduct the appeal on her own. In the first place the grounds of her notice dated 31 May 1999 were inexpertly drawn. I have already referred to the first ground asserting her unfair disadvantage; but the second and third grounds gave no real indication of what was intended to be raised. The second ground asserted that the respondents "in much of their evidence were mistaken so that their evidence was misleading", a ground particularly hard to sustain in the circumstances where hardly any of the matters had been controverted by the appellant on affidavit. Thirdly, it was asserted that the judgment was made "against the weight of evidence produced by me, which appears to have been disregarded when the decision was made". Again, having regard to the limited number of matters raised in her affidavit, it is hard to understand what matters were being referred to by the appellant, more especially because there are no particulars of the evidence which was so disregarded. One can only assume that the Court was expected to accept her assertion about the earlier misuse of funds by Mrs Burley, but it may be that she assumed that similar assertions and other allegations against her co-beneficiaries set out in letters exhibited to the respondents' affidavits were to be treated as if she had herself sworn to the truth of them.

20. Perhaps the appellant herself saw the difficulties or perhaps she obtained some advice, for she then sought to overcome the deficiencies in her evidence, first of all by filing a detailed affidavit last year and then filing and serving an almost identical affidavit extending for some 17 pages with eight exhibits on 13 July this year for the purpose of this appeal, presumably so that she might seek leave to call new evidence on the hearing of this appeal. In addition she served a subpoena for production on the Westpac Banking Corporation in relation to the bank statements of Mrs Burley between 1991 and 1995, which was complied with but which was not the subject of any further discussion on the hearing before this Court. Almost none of the matters deposed to in the later affidavit satisfied the conventional tests as to evidence admissible upon an appeal inasmuch as, arguably with the exception of two paragraphs, none of the matters constituted new evidence. Certainly none were said to have been matters of which the appellant was unaware at the time of the hearing of the original application. The exceptions were in paragraph 37 and 38 which contain details as to her lack of representation immediately before and at the hearing before the judge in the Practice Court. However, although counsel for the respondents initially objected to this evidence, she was prepared to concede that the Court might look at it for the purpose of dealing with this particular application and the appeal generally, although subject to the qualification that the Court should treat the evidence as not having been called on the original hearing. For obvious reasons no affidavit answering the appellant's affidavit had then been filed.

23. At the beginning of the hearing of the appeal the appellant objected both that the respondents' summaries of proceedings, issues and facts had been served out of time (since the obligation rested on them where the appellant was unrepresented) and that the respondents' outline of submissions had not been served until after 1 p.m. on the day before the appeal, in breach of the requirements of the relevant practice statement. The summaries were in fact short and were served by 13 July, containing little that was contentious, although the appellant complained that the facts stated in two sub-paragraphs were not correct, a view which failed to take into account her failure to controvert those particular matters at the time of the hearing before the learned judge. She had good reason to complain, however, at the late delivery of the respondents' outline which in effect she received late in the afternoon preceding the hearing together with a substantial bundle of authorities. Not surprisingly she said that she had difficulty in understanding that material and required more time to consider what was going to be argued. As the outline contained only the respondents' argument in answer to her case and as all parties were anxious that the matter proceed as soon as possible, there being no free date for a further hearing for at least two months, the Court decided to adjourn further hearing until 2.15 in the afternoon so that the appellant could further consider the outline and seek some advice. The hearing did proceed at that time, although the appellant was not entirely happy, but at the end of the day, after the appellant had put a few oral submissions in reply, the Court determined that she should have until 4 p.m. the following Monday in order to put any further submissions in reply in written form. Those further submissions have, of course, been considered by the Court. I should add that at no time did the appellant state that she had been refused legal aid or wished the hearing to be adjourned so that she could obtain legal aid, so that, although the Court was well aware of her difficulties in dealing with what is in many ways a technical legal area, we had to assume at this stage of the proceedings she had chosen not to be legally represented. Although clearly handicapped by her lack of legal expertise, she seemed able to present a forceful and coherent statement in lay terms of what she perceived to be her case, albeit at times emotionally affected by her concern as to the outcome.

26. As to the merits of her arguments the Court has not only considered ground 1, as to her disadvantage at the original hearing, but has treated grounds 2 and 3 as comprehending an argument that on the facts the respondents were not entitled to the order removing her from the position of executor and substituting Equity Trustees Ltd. as administrator with the will annexed. Inasmuch as she asserts in ground 2 that the respondents' evidence was mistaken or misleading, there is simply no basis for that contention if one has regard to what occurred at the hearing before the learned judge and the very limited extent to which she raised questions of fact at that time. Likewise the argument comprehended by the third ground, to the effect that her evidence appeared to have been disregarded, was without foundation, again having regard to the limited material then placed on affidavit. I repeat that she could not properly have expected the argumentative contentions contained in her letters exhibited to the respondents' material to be treated in the same way as sworn evidence to that effect on her behalf.

29. Nevertheless, although in my opinion she had no right to require this Court to take into account her recent affidavit for the purpose of the appeal for reasons already stated, I shall, in the very special circumstances of this case, attempt to deal with the facts before the learned trial judge by taking some regard of the facts upon which she would now wish to rely. Of course, insofar as there is a direct conflict, I can place very little effective weight on her counter assertions, especially as she has not been cross-examined, but my object in taking this unusual course is to demonstrate, especially to her, that, even if those facts upon which she would wish to rely had been available at the original hearing, the result would have been no different, for it is clear that she is and was no longer fit to undertake the burdensome task of administering this estate, certainly in the circumstances which had come about after the death of the testator.

32. For the purpose of resolving this appeal it will be sufficient to summarise the relevant facts in the following way. The appellant's father died on 24 October 1995 leaving a will in which he appointed the appellant and his other daughter Barbara as joint executors to whom probate was duly granted on 16 January 1996. By that will he had left a life interest in his whole estate to his wife, who pre-deceased him on 13 July 1991, and the residue equally between his surviving four children who included the two executors and his two sons Peter and Anthony Coote. Subsequently both Barbara Burley and Peter Coote died and their estates are represented in the present proceedings by Douglas Gerald Burley and Annette Jennifer Richards, respectively. For about five years the testator had been living in a nursing home and during that time the two sisters had held a joint and several enduring power of attorney. It so happened that, because of the illness of Mrs Fysh's husband, most of the day-to-day dealings with the testator's affairs, so it seems, had been left to Mrs Burley. She, however, had been suffering a long-standing illness which eventually led to her death in August 1998, so that after the testator's death much of the responsibility for administering their father's estate rested at this stage on Mrs Fysh.

35. None of the children had occupied their father's home unit after he had left it, but it had been agreed that Mrs Burley's daughter and her husband, Hilary and Tim Traill, should occupy the unit from 1991. In July 1996, not long after the testator's death, they moved out of the flat, which according to the appellant was in very poor condition with windows cracked and doors without satisfactory locks, all of which, so she maintained, required to be remedied before the unit could be sold. This seems to be supported, at least in part, by a valuation obtained in March 1996 from a firm of valuers who described the internal condition as "poor, needs refurbishment", although they would appear to ascribe many of the problems to excessive foundation movements which required "significant underpinning". The valuers seem to have made no reference to the condition of the locks or other aspects of the unit's security, but they suggested $22,000 would be required for underpinning, so that they fixed its present value at only $95,000. On the other hand, Mrs Fysh attributed most of the poor condition of the unit to the failure of her niece and husband to look after the premises properly and thus has consistently suggested that they be required to pay for making good all of the damage.

38. There is considerable dispute as to whether her co-executor agreed that the appellant might take possession of the property. Certainly in their affidavit material the respondents deny that she had any such consent, although this material was sworn some time after Mrs Burley's death. The appellant asserts that her sister "anxiously urged" her to take possession after the Traills left. Of course there was reason for the appellant to wish to go into possession as she had already made an offer to buy out her brothers' and sister's shares in the unit. Moreover, in his response to the appellant's first letter of complaint in September 1996, Mr Nolan on behalf of Mrs Burley on 15 October 1996 made the clear assertion that the appellant was a trespasser who was depriving her fellow beneficiaries of the rent which could be obtained. Nevertheless, only for the purposes of resolving the present appeal, I shall assume that, if her co-executor did not directly consent to her entering, the appellant went into the premises under that belief and for the purpose of "salvaging" the property, so as to put it in a better and more secure condition. Whether that would have justified an executor staying in the property for three or nine or up to 18 months, while the relevant repairs were being effected, is of little present consequence, for, well before the present application was brought, it should have been clear to her that she was then occupying an asset given to all four beneficiaries and that she could not continue to occupy it without paying a reasonable rent or occupation fee from a reasonable time after the repairs had been concluded.

41. The differences between the parties were compounded by the letter sent by the appellant in September 1996, shortly after she went into the premises, making a series of highly critical allegations against her sister and against the Traills. From almost the outset of the letter it is clear that she was alleging "dishonesty" against Mrs Burley in relation to the manner in which she had looked after her father's affairs in the five years from the time he went into the nursing home until his death. There was a series of allegations about the manner in which Mrs Burley used her father's pension over that period, in particular suggesting that she paid that pension and other moneys into accounts of her own for her own purposes. Naturally the truth of those allegations has been contested from the outset, but that does not mean that an executor in those circumstances might not properly follow up any of the matters raised, if there were a genuine prospect of getting more money into the estate. The difficulties arose, not so much from the fact that such allegations were made, but from the often intemperate and seemingly provocative language in which they were expressed, which would have given an impression of bias against her sister and later her estate, and, more importantly, from the fact that thereafter she consistently used the resolution of that dispute as a means of holding up the realisation and distribution of the estate, especially by making it a condition of any sale of the property. She seems to have failed to realise that the property could have been sold, that a substantial part of the net price realised could have been distributed, but, if there had been a genuine cross-claim by the estate against Mrs Burley, that may well have justified non-payment of the latter's share of the estate until the dispute had been resolved.

44. In his replying letter Mr Nolan, as the co-executor's solicitor, also warned of a potential conflict of interest, even at that stage. It should also be noted that the appellant's letter contained a series of detailed allegations about the Traills' use of the home unit, blaming them for the condition of the house, its locks, windows and general condition, but, apart from appearing to ascribe the blame for letting them into the house to her sister, it is not entirely clear what was then proposed by her, save that she believed that the Traills ought to reimburse the estate for the damage and that Barbara's estate ought to do the same for rent assumed to have been received from the Traills. To the latter extent, one may suppose that those were further assets which she believed ought to be got in, which she seemed to assume her sister would deny. Certainly she forwarded a number of the bills to her sister.

47. A round-table conference took place in December 1996 but it produced no solution, nor did at least two others in later years. The difficulty according to the respondents was that the appellant wished to buy the unit at what they considered too low a price, namely $90,000, which the other members of the family did not accept as being a proper value. In particular, there were disputes as to the valuations and to a possible further valuation which the respondents contend fixed a value of $135,000, although only on the basis of an external view of the premises since the valuer could not obtain entry. The appellant says that her primary concern at the meeting was to ensure that her sister accounted for the moneys said to be received by her during her lifetime and there was a proposal for the appointment of a mediator which came to nothing.

50. There was a further meeting in about March or April 1997 or at least a proposal from Douglas Burley, which took the form of a fax to his brother-in-law, Peter Coote, which appears to accept that the house should be sold for $90,000 to the appellant and that some $6,760 be deducted from Mrs Burley's share. The fax dated 7 April 1997 is now, in the appellant's recent affidavit, put forward as a basis for saying that there was some agreement, but she says no more than that it proved that her offer to buy the house at $90,000 "had been accepted by my family". There is no evidence as to what then occurred, Anthony Coote not being a party to the letter, and it would seem most surprising that, if agreement had in fact been reached, steps were not then taken by the appellant in fact to pay the agreed consideration, which seems from the letter's terms to have been $63,310 or thereabouts. Payment of that sum should in the circumstances have resulted in substantial settlement of the estate, other than the claim against Mrs Burley and her family, but it did not occur. Indeed, if the appellant be correct, there seems no explanation for the continued delay in administering the estate, other than that her brother Peter was so sick that he died on 26 October 1997. Again, since seemingly he had already agreed, and he was not one of the executors, that cannot have been a good reason for further delay.

53. However, it may be that the rest of the family did not consider the matter resolved, for there were two further meetings between February and April 1998 at which the respondents claim that the appellant said the unit would not be sold until her sister Barbara's part in their father's financial affairs was clarified and she was already asserting that not only was the unit "her home" but that the other beneficiaries were greedy and unreasonable. In the second of the meetings the respondents say that she refused to pay rent for her "own house", so there seemed continued stalemate. There is no effective denial of these allegations by the appellant in her recent affidavit. Rather she appears to assert that the discussions concentrated on the amount of rental which should have been paid and now ought to be payable by the Traills and the sums which Mrs Burley was said to owe the estate. The critical thing is there was no agreement at these meetings, nor does the appellant suggest there was. Even if that might be inferred, again she took no steps to administer the estate at that time. Admittedly her co-executor was very sick at the time and Mrs Burley in fact died on 14 August 1998.

56. Not long after her sister's death in late 1998 the solicitors for the respondents sought that the appellant retire as executor and give up possession of the home unit. Her adamant response led to the commencement of the present application.

59. Turning to those grounds of appeal which raise generally the issue whether the order removing the appellant as executor should have been made, I would note briefly the basis upon which the Court should act in the circumstances. Not surprisingly there was no argument before the Court as to the basis upon which an executor might in law be removed pursuant to s.34 of the Administration and Probate Act 1958. For this purpose the learned judge had referred to the recent decision of Monty Financial Services Ltd. v. Delmo in which, if I may say so with respect, Ashley, J. describes in careful and well-reasoned terms the nature of the Court's jurisdiction and the factors which are relevant to the exercise of its discretion under the section. His Honour gives compelling reasons why an executor's conflict of duty and interest of a kind likely to affect the efficient and satisfactory administration of the estate is a proper basis for removing an executor and substituting another. I would refer to only one other general statement of principle which for many years has been accepted as the basis for removing trustees and executors alike, making due allowance for the duties which each has to perform and the possible effect of the relevant "unfitness" of such a person to carry out those duties. Consistently with statements of principle by the Privy Council in Letterstedt v. Broers[3], Dixon, J. said in Miller v. Cameron[4]:

"The jurisdiction to remove a trustee is exercised with a view to the interests of the beneficiaries, to the security of the trust property and to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee. In deciding to remove a trustee the court forms a judgment based upon considerations, possibly large in number and varied in character, which combine to show that the welfare of the beneficiaries is opposed to his continued occupation of the office. Such a judgment must be largely discretionary. A trustee is not to be removed unless circumstances exist which afford ground upon which the jurisdiction may be exercised. But in a case where enough appears to authorise the Court to act, the delicate question of whether it should act and proceed to remove the trustee is one upon which the decision of a primary judge is entitled to special weight."

Not dissimilar views appeared in the judgments of the other members of the High Court, including Latham, C.J. and Starke, J.[5] Ashley, J. in applying these principles noted that unfitness could be constituted "by matters such as unwarranted delay in administration of the estate, failure to communicate with beneficiaries, failure to account, and unreasonable delay in paying beneficiaries their entitlements", but said, although there was very little direct authority touching the matter, "that unfitness to act does comprehend a situation in which an executor has a conflict of duty and interest in carrying out his executorial duties."[6] His Honour properly noted[7] that "not every conflict of duty and interest ... should result in removal of an executor" and that it was accepted that the Court "should not lightly ... set aside the intention of the testator that a particular person be that person's executor". Moreover, although the principle stated in Miller v. Cameron referred to a trustee and the duties of a trustee, there was no reason why the principles should not apply to an executor, as long as one took account of the fact that the jurisdiction is being invoked so as to deny an executor the right to perform his or her duties as such. No question arose in the present case as to whether the executor had become a trustee, for it was clear enough that, except in certain minor respects, the executorial duties had not been completed to the extent that one might infer assent to the vesting of the estate's property in the appellant as trustee.

64. Having regard to those principles, I have concluded that the appellant is "unfit to act" in the office of executor, which is a primary basis under s.34(1)(c) of the Act for removing an executor and appointing some person as administrator in her place. Essentially her unfitness arises not so much from the delays in administering the estate, which are bad enough but for which her co-executor and the other beneficiaries or their representatives may share some responsibility, but because her conduct and attitude towards both her former co-executor and those beneficiaries and their representatives had placed her in a position of such conflict as between her own interests, the interests of the estate and the interests of those beneficiaries as to make it impracticable for her, especially with her limited knowledge of some of the difficult legal issues so raised, to administer the estate now so as to bring that administration fairly and with reasonable speed to its natural conclusion in a manner which would enable all parties' rights to be fairly recognised. At all times it has been by modern standards a very modest estate, the value of which seems never to have been much greater than $150,000, possibly a good deal less and only more on the most optimistic of the appellant's contentions as to the liabilities of others. The principal asset of the estate is the unit, in its original poor condition worth perhaps as little as $90,000 and, at other times, with the admitted repairs and improvements by the appellant, worth up to somewhere between $130,000 and $150,000. The precise value is now of little consequence, for the appellant in the course of her submissions clearly conceded that she will not have the money to buy the interests of what are in effect the other three groups of beneficiaries, a course she was originally and for some three years or so determined to pursue, which created constant difficulties because she placed a lower value on the property than did the other beneficiaries, howsoever willing they might otherwise have been to allow her to buy them out.

67. That has been but one conflict of interests of several existing between the appellant and the estate which regrettably she has seemed unwilling to perceive. Though she did carry out some repairs and improvements and though she may have thought that her value was the fair one, it was clearly in her interests to place a lower value on that property, whereas it would have been in the interests of the estate to obtain a higher price from whosoever would purchase it. Secondly, and more unfortunately, although on perhaps a few occasions those interested in the estate were close to reaching agreement as to a fair price for her to buy them out, she seemed always to place an impenetrable barrier to settlement in that she insisted that her sister, or latterly her sister's estate, account to the estate for what the appellant asserted and believed to be her various depredations on her father's moneys and property during his lifetime, so as to reduce the net entitlement of Mrs Burley (or her estate) as beneficiary of her father's estate. Of course, there is nothing wrong, indeed, there is a great deal to be commended, in an executor's trying to bring into the estate as many assets as practicable. There is still no reason why energetic attempts should not be made to get in assets of that kind if there is a proper basis for doing so. The difficulty in the present case is that, whatever suspicions the appellant may have thought existed, none of the accusations against her co-executor have yet been sheeted home and she is no further forward, or very little further forward, in making out those allegations than she was three or four years ago. A competent executor would have brought those matters to a head well before now, however intransigent the other parties might have been, or at the least would have taken proper legal steps so as to show the other beneficiaries of this relatively small estate that it remained worthwhile pursuing them. Not only has she not taken any significantly useful steps to that end, but all the other beneficiaries have insisted that she conclude the administration of the estate, which nevertheless she has failed to do. She seems never to have contemplated the possibility of that dispute remaining outstanding, if possible, while the rest of the estate was administered. In particular, although a few small bank accounts have been got in and distributed, the principal asset remains unconverted and therefore undistributed between the beneficiaries. She does not appear to have realised that her dispute with one beneficiary or group of beneficiaries could not justify depriving the other beneficiaries of their rightful inheritance (or at least part thereof), so convinced has she been of the righteousness of her campaign against Mrs Burley and her estate. Because she has otherwise been so concerned to obtain the right to purchase the unit, she has put her interests ahead of that of the whole estate by placing an irrelevant condition on its realisation.

70. Thirdly, although she may not have been in a position of conflict in relation to her occupation of the home unit when she first went into possession in mid-1996, her continuance in possession up to the present day without paying any rent over the last two or three years has likewise placed her in conflict with the interests of the estate. She may be right in saying that her co-executor permitted her to go into possession when the Traills moved out earlier in 1996, so that she might keep the premises safe while a number of repairs to doors, windows and the like were carried out and the unit placed in a better condition, thereby increasing its value for the purpose of sale. One may accept for present purposes that she did so and that she spent moneys of her own on carrying out both those and further repairs and some improvements. Nevertheless, at some stage, perhaps a year, perhaps 18 months, from the time she first took possession, there could have been no justification for her remaining in possession of an estate asset held on trust while not paying a fair rent for its occupation. Perhaps she could have agreed with her co-executor or with all the beneficiaries that the cost of repairs etc. might be set off against some part of the rent for some defined period, but she had no right simply to stay on without proffering any rent or making any offer to do so. She was and remains thereby in conflict with the estate and the other beneficiaries in it.

73. In short, it has been in the interest of the appellant to pursue what she perceives to be the claim against both Mrs Burley (and latterly her estate) and against the Traills, so that she might thereby reduce the amount which she would be obliged to pay for the home unit into the estate for the benefit of the other beneficiaries.[8] Of course the ultimate distribution of the proceeds of sale would have to take into account any sums brought in, which could in turn be resolved by the setting off of any established claim against the entitlement of that particular beneficiary, but it was not and it is not necessary to deal with the distribution of the estate in that way. It would have been and should have been possible to sell the principal asset, the home unit, and to distribute the net proceeds at least to the two beneficiaries against whom no claim is to be made, leaving for another day by the commencement of reasonably expeditious proceedings the amounts which the other beneficiary (and her estate) were obliged to pay or could be expected to receive, a final accounting between all parties (including the appellant) depending upon the outcome of the other disputes. Unfortunately by insisting upon her own interests and upon making the sale conditional on the resolution of those claims the time for sale and distribution has been unfairly delayed. Even her delay in commencing proceedings may have put the estate at risk inasmuch as arguably time limits are now running against the estate, but I would express no final view on that matter. When one adds to that conflict the obligation, steadfastly denied by her, that she herself must account to the estate for rent for use of the unit for at least part, most likely a considerable part, of the time she has been in occupation, then regrettably there can be no other conclusion than that she is now no longer fit to be executor of the estate so that the learned judge rightly removed her from that position.

76. The appellant is "unfit" to remain as executor primarily because, in the whole of the circumstances described, the welfare of the beneficiaries is opposed to her continued occupation of that office, a fundamental condition to the exercise of the Court's jurisdiction: see Miller v. Cameron. Whatever be the merits of the claims against the late Mrs Burley and the Traills, the other beneficiaries (or their estates), including the appellant herself, were entitled to have a very significant part of the estate distributed to them several years ago. The assertion of these claims did not in themselves create any conflict; rather it has been the appellant's inability, if not unwillingness, to take any sufficient steps in the administration which has made her unfit. Again I would repeat that the existence of conflicts of interest between an executor and the estate or the beneficiaries does not of itself render an executor unfit. Frequently a testator chooses an executor because of perceived abilities to deal with problems of that kind, especially within a family. It is the inability to act independently and to deal adequately with conflicts and potential conflicts which leads to the need to remove an executor. Where through incompetence or stubbornness an executor cannot cope, then it is proper, as often occurs, for an executor to hand over his or her duties or, if unwilling, for an order for removal to be sought and made against that executor.

79. Here the appellant has not recognised her present lack of capacity, at least inasmuch as she has occupied indefinitely the unit rent-free for a period well in excess of what could be justified, and secondly, by allowing the disputed claims and her desire to buy the unit to stultify her administration of the estate. She may well be correct in her assertions against Mrs Burley and the Traills - it is unnecessary for this Court to express a view - but even if she be correct, her use of those disputes to delay administration because of her desire to buy the unit at the lowest possible price, without obtaining the concurrence of the remaining beneficiaries, has created a conflict with those beneficiaries. She has been and remains incapable of resolving those conflicts, so that grounds 2 and 3 of her appeal must fail.

82. In those senses the conflicts of her own interests with those of the estate and of those beneficiaries who are not the subject to any claim have made the appellant no longer fit to act. In relation to those aspects nothing that the appellant has more recently sought to put forward in her later affidavit would deny the existence of those conflicts and the need for her removal as executor. If accepted, they would place a somewhat different and more qualified light on her behaviour, but in the end no amount of assertion by her can justify the manner in which she has sought to administer the estate and delay its distribution. I have already shown why I consider she was not unfairly dealt with by the judge in the Practice Court and the conclusions as to the merits, even assuming the correctness of her factual allegations, show that no adjournment for further evidence or for time to prepare her case would have led to any other conclusion than that she was unfit and ought to be removed as executor. The first ground of appeal therefore also fails.

[1] In her submissions in reply the appellant complains for the first time that the judge should have seen that she needed an adjournment and made clear her right to cross-examine, but that seems to assume that in a busy Practice Court the judge must perceive that some such right might be asserted, if it were brought to a party's attention. That cannot fairly have been expected, at least in this case. The facts in her brief affidavit did not suggest that she wished to adduce further evidence which might be relevant to the particular application brought against her.

[2] [1996] VicRp 7; [1996] 1 V.R. 65.

[3] (1884) 9 App.Cas. 371 esp. at 385-387.

[4] [1936] HCA 13; (1936) 54 C.L.R. 572 at 580-581.

[8] On the hearing of the appeal the appellant stated that she could no longer afford to buy the unit but she remained adamant that the various alleged debts should be recovered, in some way which she did not specify.