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1. This matter involves a dispute about the administration of an estate. To avoid confusion, references to each family member will be to their first name without any disrespect intended.

2. The late Timothy Vincent Toomey died on 28 August 2024 without a will, and leaving no children. His estate comprises primarily a duplex house in Ainslie. He is survived by his de facto partner, Marguerite Louise Gaffey. She is the person entitled to receive his estate upon intestacy. Prior to Timothy’s death, Marguerite and Timothy lived together, not in the duplex house comprising Timothy’s estate, but in the one next door which is owned by Marguerite. Marguerite has two brothers, James Matthew Gaffey, who is married to Mary Helen Dineen (Helen), and Andrew Benedict Gaffey.

3. Marguerite has been diagnosed with Lewy Body Dementia and does not have capacity to manage her own affairs, or to administer Timothy’s estate. On 21 January 2025, the ACT Civil and Administrative Tribunal (the Tribunal) made orders appointing Andrew and James as Marguerite’s guardians. The Tribunal also appointed Andrew, James and Helen as Marguerite’s financial managers. These individuals applied to this Court on 15 July 2025 for a Grant of Letters of Administration – No Will.

4. On 31 July 2025, the Tribunal varied its order by removing James as guardian and Helen as financial manager (the Revocation Decision). The Tribunal made findings James was no longer suitable to be a guardian because he was gaining a financial benefit from occupying Margeurite’s house and using her car, without Andrew’s consent, in circumstances where Marguerite’s finances were required for her permanent nursing care. It also determined Helen was unsuitable to continue as Marguerite’s financial manager. The Tribunal appointed the ACT Public Trustee and Guardian as Marguerite’s financial manager and Andrew remained as her sole guardian. James has since made attempts to stay and appeal the Revocation Decision, without success.

5. On 13 August 2025, this Court granted Letters of Administration to Andrew, James and Helen. The application seeking those orders was lodged on 15 July 2025, prior to the Revocation Decision. As a consequence, James and Helen remained guardian and financial manager respectively for Marguerite as at the date of the lodgement of the application, but they had been removed from those roles by the time of the orders granting them letters of administration.

6. By an application dated 11 March 2026, Andrew seeks to remove James and Helen as administrators of the estate. Helen consents to Andrew’s application. James opposes the application. The evidence

7. Andrew reads his own affidavits affirmed on 27 February 2026 and 10 June 2026 as well as the affidavits of his lawyer Mitchell James Chatfield, affirmed 20 May 2026 and 11 June 2026. James reads his affidavit sworn on 3 July 2025, annexures two and three to his affidavit sworn on 21 May 2026 and parts of his affidavit sworn on 28 May 2026 as particularised in his written submissions.

8. James attests to the following in his affidavits: (a) His willingness to continue in the role of administrator. (b) His relocation to the ACT to assist in the care of Marguerite and the steps taken by him in her care and in addressing her accommodation needs. (c) His advantage in that role being presently domiciled in the ACT (whereas Andrew resides in Western Australia). (d) Andrew’s earlier consent to James’ appointment as sole administrator of the estate and to his adoption of the role of conduit for communication with the legal representatives. (e) The importance of the timely administration of the estate with a view to ascertaining Marguerite’s capacity to fund her continuing care needs.

9. Andrew attests to the following in his affidavits: (a) No steps are presently being taken to administer Timothy’s estate. (b) Helen consents to being released from the role of administrator, and to Andrew continuing in that role. (c) The Public Trustee and Guardian, as Marguerite’s financial manager, consents to the orders sought in the application. (d) He is not aware of there being a conflict of interest between himself and Marguerite. (e) He is willing and able to continue in the role of sole administrator. (f) Marguerite is in need of funds to support the cost of her care in an aged care facility. (g) He has, to his knowledge, not received any information from BAL Lawyers (BAL) which appears to have been obtained confidentially from James or Helen in any previous matters. (h) He does not know of any defects in the Tribunal’s orders and has no intention to deceive, mislead or otherwise improperly influence the Tribunal. (i) He has no intention of delaying, and has not delayed, the administration of the estate due to a motivation to avoid paying land tax. (j) He denies he has failed in relation to any duty as guardian and co-administrator.

10. Andrew also relies on the affidavits of Mr Chatfield who says: (a) He is not aware of any conflict of interest in BAL acting for Andrew. (b) He has consulted the relevant principles and internal firm records and has been advised that whilst being a client at one stage for BAL, James’ matters have been closed and archived and any retainer terminated. Mr Chatfield says he had no personal involvement in those matters. (c) Mr Chatfield is restricted from accessing matters in which James was the client for BAL and has not read any correspondence, file notes or other documents or information related to those matters save for the court forms associated with the application for the grant of Letters of Administration (which is available on the court file). (d) BAL has not entered into a retainer or similar from the Public Trustee and Guardian in relation to the estate. The arguments to be addressed

11. Andrew submits this Court should, pursuant to s 32 of the Administration and Probate Act 1929 (ACT) (the Probate Act) or in its inherent jurisdiction, remove James as an administrator. As the basis of the original grant has now changed, given James’ removal as guardian, the grant should now change to reflect the true circumstances. He relies on Karimi v Rasouli [2026] NSWSC 203 as an analogous case.

12. He says James’ standing for appointment as administrator of Timothy’s estate arose solely in his capacity as a guardian for Marguerite. Following his removal as a guardian, his capacity to remain in the role of administrator is regulated by s 12(1)(e) of the Probate Act because he is not a partner of the deceased person nor is he a next of kin. He remains eligible pursuant to s 12(1)(e) if he is a person the Court considers appropriate for appointment. However, s 12(1)(e) is subject to s 12(3) which provides: 12 Eligible administrators … (3) The Supreme Court must not grant administration of an intestate estate to a person mentioned in subsection (1)(e) if there is anyone else to whom administration may be granted under this section who— (a) in the court’s opinion, can be trusted with administration of the estate; and (b) applies to be granted administration of the estate. …

13. As Andrew is a person who can be trusted with the administration of the estate and he has applied to be granted administration, he contends James’ lack of standing should lead to his removal.

14. Andrew says, in any event, James is unfit and/or is unable to act in the office of an administrator. He principally relies on the findings the Tribunal made in respect of James’ occupation of Marguerite’s property and use of her car. However, he also notes the Tribunal disallowed James charging Margeurite for carer services on the basis of an employment-like relationship, demonstrating James does not understand his fiduciary obligations.

15. James submits s 32 of the Probate Act does not allow for his removal as a co-administrator of the estate as the power is not enlivened. The section is directed to conduct after an appointment has been granted and, at the time of the application for a grant of administration, information about James’ status as a guardian was accurate. The position is contrasted with that in Queensland where such a power is explicit: r 642 of the Uniform Civil Procedure Rules 1999 (Qld). Instead, in the ACT, the Court’s power is derived from its supervisory jurisdiction: Ross v Gordon [2026] ACTCA 1. The power is a discretionary one and removal should only occur if necessary for the administration of the estate or in the interests of the beneficiaries.

16. Even allowing for the change in underlying authority with his removal as guardian, James submits he could have been appointed an administrator under s 12(1)(e) of the Probate Act. Section 12(1)(e) allows the Court to appoint another person it considers appropriate. It would have been appropriate to appoint James because he is an adult brother of the beneficiary who undertook significant steps following Timothy’s death to assist his sister such as caring for her, moving from Melbourne and arranging improvements to the home.

17. James submits the Court should not exercise its discretion to remove him as an administrator because: (a) There is limited work required in the estate’s administration as the scope of the estate is confined. Essentially all that is required is the transfer of the residential property to Marguerite. It should be completed within a short timeframe without significant labour. (b) His removal would hamper the efficient administration of the estate. (c) There is no evidence warranting his removal. (d) As there is a dispute between James and Andrew over the estate’s administration, it is preferable both remain to ensure James’ views are taken into account. Friction between family members may be insufficient by itself to warrant removal: Tong v Tong [2023] ACTSC 163 at [244] (McWilliam J). (e) The orders James proposes involve the appointment of a third-party law firm to undertake the conveyance to complete the administration, ensuring there is limited engagement between James and Andrew.

18. James is explicit in his wish that the brothers both continue in their roles as administrators, with a view to completing the limited work necessary to bring the administration to an end. By contrast, Andrew presses for the removal of James as his preferred course and, in the event James is to remain, he seeks the revocation of the grant to both of the brothers and the appointment of the Public Trustee and Guardian as administrator in their stead.

19. The issues for my determination are therefore: (a) whether James has standing as an administrator given the irregularity existing at the time of his appointment; (b) whether orders should be made for his removal in any event; and (c) where grounds for the removal of James are not established, what orders are appropriate for completion of the administration.

Does James have standing?

20. A grant of letters of administration in circumstances such as this involves the making of orders in chambers after consideration of the material placed before the Court. There are no findings and there is no information available as to the reasoning process underpinning the grant. The document on its face refers to James and Andrew as “the guardians” and Helen as “the financial manager” appointed pursuant to Tribunal orders dated 21 January 2025 in respect of Marguerite. In using those descriptors, the grant is simply reflective of the wording used by the parties in the originating application seeking letters of administration. It is not, in my view, indicative of an acceptance of particular standing as the basis for making the orders sought. The affidavit evidence filed in support of the application for letters of administration certainly made reference to the Tribunal’s orders but also set out in some detail the steps taken to ascertain whether Timothy had made a will, and the role of the applicants in the care of Marguerite and the management of her affairs following Timothy’s death.

21. I do not read the wording of the grant as evidencing the standing of the applicants relied upon by the Court for the purpose of issuing the grant. The eligibility of each of the applicants was a matter to be assessed with reference to s 12 (1)(e) of the Probate Act. For each of them, it was necessary for the Court to be satisfied they were an appropriate person for appointment. The characteristics required to satisfy the requirement the appointed person be “appropriate” are not defined. The determination necessarily involves a consideration of the facts in each case, including the work required of the person or persons to fulfil their duties as administrator. If the task required of them is in the nature of a simple responsibility readily acquitted, it follows the qualities required of an appropriate person will be less stringent than in the case of an estate involving large sums of money, significant complexity or a large volume of administrative work. In determining whether an individual is an “appropriate” person within the meaning of section 12 the court must always be guided by that which is most likely to achieve the proper administration of the estate in the interest of the parties beneficially entitled to its proceeds: Hitchins v Roksandic [1989] FCA 411 (Jenkinson, Neaves and von Doussa JJ), citing Bath v British and Malayan Trustees Ltd [1969] 2 NSWLR 114 at 118 (Helsham J).

22. I do not accept the appointment of James and Andrew as guardians for the purposes of the Guardianship and Management of Property Act 1991 (ACT) necessarily demonstrated they were appropriate persons for appointment pursuant to s 12 of the Probate Act. The mandatory criteria to be considered by the Tribunal before appointment of a guardian is made are set out in s 10: 10 Considerations affecting appointment … (4) Someone (other than the public trustee and guardian) may be appointed as a guardian or manager only if the ACAT is satisfied that the person will follow the decision-making principles and is otherwise suitable for appointment. (5) For subsection (4), the matters the ACAT must take into account include— (a) the views and wishes of the person (the protected person) for whom a guardian or manager is to be appointed; and (b) the desirability of preserving existing relationships with family and any other carers; and (c) whether the proposed guardian or manager is compatible with the protected person; and (d) whether the proposed guardian or manager lives in the ACT; and (e) whether the proposed guardian or manager will be available and accessible to the protected person; and (f) the nature of the functions to be exercised under the order and whether the proposed guardian or manager is competent to exercise them; and (g) whether the interests and duties of the proposed guardian or manager are likely to conflict with the protected person’s interests to the detriment of the protected person’s interests. …

23. Although a favourable determination by the Tribunal with reference to those criteria is likely to be a relevant, and in some cases an influential factor, the criteria for determining whether an individual is appropriate for appointment as an administrator under the Probate Act remains entirely discretionary and heavily dependent on the facts of the particular case. Similarly, James’ removal as guardian would not necessarily have disqualified him as a person appropriate for appointment to administer the estate, although it may be an influential factor depending upon the grounds for removal.

24. Andrew places reliance on the decision of the New South Wales Supreme Court in Karimi. In that case, a grant of letters was revoked in circumstances where the original grant was based on a power of attorney issued in favour of the grantee that was itself subsequently revoked. The case is however distinguishable in a number of ways and is therefore of limited assistance because: (a) The grantee consented to the revocation. (b) It was accepted on the evidence that she had been recalcitrant in the administration of the estate in the period following the grant of representation. (c) The grantee had expressed reluctance to continue in the role.

25. The Probate Act and the Court Procedures Rules 2006 (ACT) do not appear to have any mechanism for revoking an appointment on the basis of a mistake of fact as is expressly provided, for example, in the Queensland Uniform Civil Procedure Rules at r 642: 642 Revocation of grants and limited grants (1) The court may, on application, revoke a grant or make a limited grant if— (a) it appears to the court that— (i) the personal representative is no longer capable of acting in the administration; or (ii) the personal representative can not be found; or (iii) the grant was made because of a mistake of fact or law; or (b) the personal representative wants to retire from the administration.

26. For the reasons set out above, I do not accept James’ removal as guardian has the effect of negating the basis for his original appointment.

Should orders be made for James’ removal in any event?

27. The power to remove an executor or administrator arises under s 32 of the Probate Act which provides relevantly: 32 Discharge or removal of executors and administrators … 2) This section applies if an executor or administrator— (a) remains out of the ACT for more than 2 years; or (b) wants to be discharged from the office of executor or administrator; or (c) after the grant of representation or appointment— (i) refuses to act in the office; or (ii) is unfit to act in the office; or (iii) is incapable of acting in the office. (3) The Supreme Court may order, on the terms and conditions it considers appropriate— (a) the discharge or removal of the executor or administrator (the old executor or administrator); and (b) the appointment of someone else as administrator (the new administrator) in place of the old executor or administrator. …

28. There is no suggestion James refuses to act or is incapable of acting. The question is whether he is unfit to act in the office. The authorities make clear the discretion to remove an executor is one that is not to be exercised lightly. In Mir v Mir [2025] NSWCA 154, the New South Wales Court of Appeal observed at [141] (Ward P, Leeming and Payne JJA agreeing): … there must be caution in the exercise of the power to remove a trustee; and not every mistake or misconduct will warrant the removal of a trustee. That said, where a trustee has demonstrated a want of honesty, proper capacity to exercise the trustee's duties, or of reasonable fidelity to the trust with which they have been reposed, this would be a basis on which the court in its supervisory jurisdiction may well decide to remove a trustee. (Citations omitted.)

29. See also Ross at [64]-[65] (McCallum CJ, Baker J and Muller AJ).

30. In Estate of Crane [2005] SASC 379; 93 SASR 198, Besanko J observed at [24] and [40] that a guiding principle in considering the removal of a named executor is the need to have due regard to the administration of the estate and the interests of the beneficiaries. His Honour’s opinion to that effect was cited by Master Harper in Jurkiewicz v Jurkiewicz [2013] ACTSC 89; 9 ASTLR 80 at [19].

31. As James concedes, in many cases an additional militating factor will be that of the wishes of the deceased person appointing a particular executor to act. That is not a relevant factor in this case but the need for caution in exercising the power for removal remains.

32. In Dimos v Skaftouros [2004] VSCA 141; 9 VR 584, the Victorian Court of Appeal observed at [13] (Winneke P, Batt JA and Dodd-Streeton AJA agreeing): …the court will not lightly exercise its discretion to remove a person who has been chosen by the testator as the personal representative. However, it is the welfare of the beneficiaries and the protection of their interests in the estate which must be regarded by the court as the paramount considerations in exercising the discretion.

33. Ultimately, with proper regard to the need for caution in making a determination to remove an executor or administrator, and in the absence of some flagrant demonstration of a want of capacity to adequately acquit the office, the question is to be addressed with reference to what is in the best interests of the estate and of the beneficiary. In this case, the simple nature of the administration and the limited activity required of the administrators to complete the task suggests to me the guiding principle is ultimately a financial one. That is, what approach is most financially prudent for the benefit of Marguerite?

34. I am not satisfied the identified conflicts of interest between James and Marguerite relied upon by the Tribunal rise to a level of demonstrating a want of honesty on James’ part or a lack of capacity to fulfil his role as an administrator.

35. In this case, that which is in the best interests of the estate and of the beneficiary is an outcome that minimises the erosion of the value of the estate for the benefit of Marguerite, who has ongoing care costs related to her incapacity. Once the conveyance of Timothy’s property to Marguerite is complete, the Public Trustee and Guardian, who is appointed as Marguerite’s financial manager, will be in a position to manage both of the properties for Marguerite’s benefit.

36. I am mindful of the evident level of disputation between James and Andrew which has brought the parties to this point. On one view, an easy solution may be the removal of James such that only one of the brothers is left in a decision-making role. His removal as administrator would not necessarily stifle the capacity of James to agitate concerns regarding completion of the administration. Whilst both of the brothers continue to hold the office of administrators, they are bound to acquit their roles in the best interests of their incapacitated sister. With due regard to the simple nature of the tasks required for completion of the administration, and the evident capacity of each of the brothers to complete the tasks required of them, I have determined it is not appropriate to remove James as an administrator. That determination is sufficient to substantially deal with the present application but, in the Court’s supervisory capacity, it is necessary to consider what steps are required to bring this administration to a timely and cost effective conclusion.

What are the next steps?

37. No issue arises in relation to Helen’s removal as she consents to the orders sought and s 32 expressly empowers the Court to order the discharge or removal of an executor who wants to be discharged from the office.

38. James has expressed a willingness to continue the administration with Andrew. Andrew on the other hand has indicated that if James is not removed, his preference is for the Public Trustee and Guardian to be appointed as administrator. I consider it preferable for Andrew and James to make a further attempt to proceed with the administration on a consensual basis. If that fails, it will then be necessary to pass the responsibility for administration of the estate to the Public Trustee and Guardian.

39. If the administrators are able to act consensually in the completion of the administration, it seems to me appropriate for their costs to be met by the estate on an indemnity basis, given there was a proper basis upon which to question the continuing status of James and Helen as administrators following their removal as guardian and financial manager respectively by the Tribunal. I accept also, as is apparent from the determination I have made, there was a proper basis for James to challenge the removal. If they are not able to act consensually from this point, I do not consider a continuing indemnity for costs to be appropriate.

Orders

40. I therefore make the following orders: (1) Pursuant to ss 32(2)(b) and (3)(a) of the Administration and Probate Act 1929 (ACT), Mary Helen Dineen is discharged as administrator of the estate of Timothy Vincent Toomey. (2) The applicant’s application in proceeding lodged on 11 March 2026 is otherwise dismissed. (3) The administrators are to file proposed agreed orders for the completion of the administration by 4 pm on 16 July 2026. (4) In the event of compliance with order 3, the costs of each of the parties are to be paid from the estate on an indemnity basis. (5) Failing compliance with order 3: (a) The Public Trustee and Guardian is to be appointed administrator of the estate in lieu of James and Andrew. (b) The costs of each of the parties accruing prior to the making of these orders are to be paid from the estate on an indemnity basis and thereafter, each party is to bear their own costs. (6) The matter is listed for further directions at 9.30am on 17 July 2026.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: Date: