Court of Appeal (Vic)|2010-06-25|Before: MAXWELL P and EMERTON AJA

Klement v Randles; Klement v Randles [2010] VSCA 160 (25 June 2010)

Randles (as Trustee of the Estate of Ludmilla Klem) v Klement (Unreported, Habersberger J, 15 December 2008); Klement v Randles [2009] VSC 320 (Davies J)

ADMINISTRATION AND PROBATE - Application for leave to appeal against refusal to set aside default judgment - Application for removal of executor - Unfit to act - Administration and Probate Act 1958 (Vic) s 34(1)(c).

1 Jiri Klement, who calls himself Reverend Klement and is also known as George Klement, has brought to the Court two related matters for determination: an application for leave to appeal the decision of a judge in the trial division refusing to set aside a default judgment for possession; and an appeal from the decision of a judge in the trial division refusing to remove an executor. Both matters concern the administration of the estate of Reverend Klement's mother, Ludmilla Klement, also known as Sister Francis Klement.

2 By summons filed on 19 January 2009, in proceeding No 3702 of 2009 ('the possession proceeding'), Reverend Klement seeks leave to appeal from orders made on 15 December 2008 by Habersberger J. That proceeding was an appeal brought by Reverend Klement against a refusal to set aside a default judgment for possession in favour of the respondent ('Mr Randles') as the executor and trustee of the estate of Mrs Klement. The property in question is occupied by Reverend Klement under a life tenancy. His Honour made orders dismissing the appeal and Reverend Klement now seeks leave to appeal those orders.

3 By Notice of Appeal dated 16 July 2009, in proceeding No 5425 of 2009 ('the executor proceeding'), Reverend Klement appeals from the decision of Davies J delivered on 8 July 2009. That proceeding concerned an application by Reverend Klement pursuant to s 34 of the Administration and Probate Act 1958 (Vic) to have Mr Randles removed as executor of the will of Mrs Klement. Her Honour gave judgment in favour of Mr Randles and dismissed the application. Reverend Klement now appeals against the entirety of her Honour's judgment.

4 Both matters were heard by this Court on 18 March 2010. At the outset, Reverend Klement told the Court that he had not expected to argue the application for leave to appeal in the possession proceeding and that he had come to court expecting to deal only with the appeal in the executor proceeding. Reverend Klement's attention was drawn to orders made on 19 October 2009 by the Acting Registrar of the Court of Appeal, Lansdowne AsJ, that both matters be listed for hearing on a date to be advised in the first term of 2010 and the date for hearing the appeal would be the same date as the day for the hearing of the application for leave to appeal in the possession proceeding. Reverend Klement conceded that his failure to prepare for the application in the possession proceeding was due to inadvertence, but nonetheless submitted that the Court should hear only the appeal in the executor proceeding.

5 We ruled that what amounted to an application by Reverend Klement to adjourn the hearing of his application for leave to appeal in the possession proceeding should be refused. Our reasons were these: first, Reverend Klement had been on notice since 19 October 2009 that the two matters would be heard together; secondly, the Court had to be fair to Mr Randles as well as to Reverend Klement and Mr Randles had briefed counsel who was ready to deal with the two matters; and thirdly, there was a public interest in ensuring the efficient use of the Court's resources.

6 Since the hearing, Reverend Klement has written to the Court (and provided a further very large bundle of handwritten material on a variety of issues that concern him) querying the propriety of the two matters having been heard on the same day. He submits - as he did at the time - that the possession proceeding is dependent on the outcome of the appeal in the executor proceeding, and that he should have time to consider the 'impending judgment on removal/replacement' and so prepare for the 'discrete 2nd proceeding'.

7 It is not appropriate to reopen this question. The adjournment was refused, for the reasons indicated. It is plainly in the interests of both parties for the two matters to be dealt with together.

8 There is one final preliminary matter to which we should refer. Shortly before we had finalised these reasons for judgment, we received a further handwritten letter from Reverend Klement. In that letter, he requested the opportunity to have these matters dealt with in a mediation to be conducted by an Associate Justice. We did not seek any submission from the respondent, as we were of the view that the request must be refused. Given the long history of this matter, the very wide-ranging nature of Reverend Klement's concerns (as detailed below), and the manifest irreconcilability of the positions of the parties, final determination of these proceedings is essential in the interests of both parties.

Application for leave to appeal in the possession proceeding

9 Ludmilla Klement made a will dated 30 May 2002 ('the Will') in which she appointed Mr Randles as executor and trustee of her estate. She died on 27 July 2005 and, on 8 May 2006, Mr Randles obtained a grant of probate of her estate.

10 Under the terms of the Will, Reverend Klement was given a life interest in Mrs Klement's property at 105 Collier Crescent, West Brunswick ('the property'), on the condition that he pay all rates and taxes and other outgoings and keep the property 'in good and habitable state of repair', and that he keep the property insured for its full value, to the satisfaction of the trustee of the Will.

... in the event of my Trustee being satisfied that my son GEORGE KLEMENT is not capable of residing in such property my Trustee shall have the power either to rent such property to tenants and to use the net income arising from such letting for the maintenance and advancement in life of my said son GEORGE KLEMENT during his lifetime or to sell such property and to invest the moneys from such sale and to use the income derived from such investment for the maintenance and advancement in life of my said son GEORGE KLEMENT.

12 Mr Randles says that Reverend Klement has not paid rates and taxes on the property and has not kept it in a good and habitable state of repair. Accordingly, on 13 May 2008 he applied for, and on 1 October 2008 obtained, an order for possession of the property.

13 In an affidavit sworn on 20 March 2009 and filed in the possession proceeding, Mr Randles deposed to having visited Reverend Klement at the property on several occasions between the end of 2006 and November 2007. Mr Randles made attempts to reach agreement with Reverend Klement to enable the property to be repaired to put it in a habitable state, and to respond to notices and letters of demand from authorities in relation to maintenance and safety and the payment of rates. By November 2007, Mr Randles had formed the view that Reverend Klement was not capable of residing in the property. On 13 May 2008, Mr Randles commenced the possession proceeding to obtain possession of the property in order to sell it. He proposed to assist Reverend Klement to find alternative accommodation using some of the proceeds from the sale of the property, as stipulated in the Will.

14 There then followed a complicated sequence of events in the possession proceeding.

15 On 15 July 2008, Reverend Klement filed a defence. On the same day, he applied to have the possession proceeding dismissed. This application was unsuccessful.

16 On 22 July 2008, Mr Randles successfully applied to have the Reverend Klement's defence struck out. Reverend Klement was given leave to file an amended defence by 22 August 2008, with directions that the defence address specific allegations. The amended defence was struck out on 5 September 2008 on the grounds that it failed to comply with the directions provided in the earlier order.

17 On 15 September 2008, Reverend Klement appeared in the Practice Court to appeal the order striking out his amended defence. Mr Randles made an application for summary judgment. Reverend Klement was given leave to withdraw his appeal and the application for summary judgment was dismissed.

18 On 1 October 2008, judgment was entered against Reverend Klement in default of defence. Reverend Klement issued a summons to set aside the default judgment, but when the application came before the Senior Master on 20 October 2008, no affidavit had been filed or served in support of the application. The Senior Master granted Reverend Klement an adjournment, but it remained the case that no affidavit had been filed or served in support of Reverend Klement's application when the matter came before Master Evans (as he then was) on 27 November 2008. The application to set aside the default judgment was dismissed with costs.

19 Reverend Klement appealed from that order to a judge in the trial division.

20 On 15 December 2008, the judge below heard Reverend Klement's application to set aside the default judgment. His Honour gave careful consideration to whether there was an arguable defence and granted Reverend Klement leave, in accordance with r 77.06(7) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), to rely on oral and affidavit evidence that was not before the Master. After examining the materials and considering the statements of Reverend Klement from the bar table, his Honour found that there was no arguable defence. Reverend Klement had also failed to address the question why the earlier orders requiring the filing of affidavits had not been complied with.

Doing the best I can to understand the defendant's position, I consider that there is no arguable defence, that there is no basis therefore to set aside the judgment entered in default of defence, and that there is no proper explanation as to why the material on which the application was being based, was not filed in accordance with the earlier orders.[1]

22 The appeal was dismissed with costs. It is from those orders that Reverend Klement now seeks leave to appeal to this Court. The (proposed) Notice of Appeal sets out the following grounds of appeal:

1. No regard given to advice to tribunal of my mother's (will) and Senior Member Lyon's Order, 7/05.

2. 'Absolute discretion' in will is medico-legally untenable to me, and abrogates to the executor quasi guardian or empowerment, with dire socio-economic results imminent for me.

3. I've been depending on (favourable) court judgments regarding this case, hence I am reluctant to make a move to vacate my current premises.

4. A much longer time allowance wouldn't affect the executor and should commence from termination of litigation.

5. Poverty should be a factor in this case, as the executor is not the affected party, like the property owner, leasing or renting out.

23 In order to obtain leave to appeal, Reverend Klement must satisfy this Court that the decision of the judge below is attended with sufficient doubt to warrant it being reconsidered on appeal, and that substantial injustice will be caused to him if the decision below is allowed to stand. The effect of the decision is, of course, that the default judgment remains on foot and Mr Randles is entitled to possession of the property.

24 Reverend Klement has filed material in support of his application for leave to appeal, comprising an affidavit sworn on 17 February 2009 and a document headed 'Statement of Case' dated 4 March 2009.

25 The Statement of Case is a long document that appears to deal with matters that are not directly relevant. The following contentions can, however, be discerned from the document:

(a) the Court should grant a stay, should give leave to file an amended defence and should set aside the summary judgment;

(b) Mr Randles has not established a medical or psychological nexus between the condition of the property and his imputed psychiatric or psychological disability;

(c) however, an amended defence ought not to be necessary in that Mr Randles' claims have not been substantiated. Moreover, a point by point defence in historical order would restrict Reverend Klement to Mr Randles' parameters;

(d) Reverend Klement would suffer hardship if evicted, given that there have been delinquent acts against him in the past, and he 'cannot tolerate smokers, drinkers, motor mowers, swearing, rock and vulgarity', has special dietary needs and 'cannot bear to eat in company';

(e) seizure and selling of his mother's property would provide Reverend Klement with only marginal compensation. If alternative accommodation were paid from her estate, it would diminish the estate and if Reverend Klement had to pay rent, his assets would also be diminished;

(f) Reverend Klement has an alternative proposal for a religious and charitable trust, in the form of a little retreat for a small number of persons of Slavic origin at which he could also reside.

26 The affidavit canvasses many matters that are not directly relevant to the question of leave to appeal from the decision of the judge below. In relation to the state of the property, the affidavit contains the following assertions:

(a) the garden at the property was 'brutally destroyed' by the Council;

(b) when Reverend Klement's mother was in hospital, Mr Randles advised him of his intention to 'clean up, ie. mutilate mother's garden';

(d) offers to help him find alternative accommodation involve 'a mangling of semantics' and there are 'more sinister intentions';

(e) Mr Randles' idea of 'reasonable' involves Reverend Klement relinquishing his mother's house and accepting inferior lodgings, where he will have no peace because of the other residents whose 'habits and morality' he cannot abide;

(f) the hearing below was deficient in his not having submitted a desirable defence and affidavit in typed form, whilst the oral hearing was somewhat ambiguous as to its place in the process and restrictive as to what the judge below was willing to hear;

(g) Reverend Klement has not been paying rates, as he is litigating for recognition of his mother's house (the property), Casa di Fatima, as a place of worship and charity. Hence he seeks a refund of rates from time of purchase in 1982 and waiver of all rates until it is sold, which sale he will seek to effect when he is empowered and solvent;

(h) Reverend Klement will not fiscally or in any other way jeopardise the property by continuing to live in it or otherwise require money to be drawn from his mother's estate. His intention is to increase the estate by rate rebates and waivers.

27 In this affidavit, Reverend Klement also makes what he calls his 'strategic purposes' known. They are to have himself or someone appropriate appointed as executor of the Will and set up a religious and charitable trust in his mother's name, which would involve establishing a community of like-minded people.

28 Nothing in this material suggests that the decision of the learned judge below is attended with sufficient doubt to warrant it being reconsidered on appeal. It does, however, show Reverend Klement's concern that he will suffer hardship if the possession order is allowed to stand. This is arguably relevant to the question of injustice to Reverend Klement if the decision below is allowed to stand.

29 For his part, Mr Randles submitted that the judge below went into great depth with Reverend Klement exploring his concerns, but found that Reverend Klement did not have a defence to the proceeding.

30 Mr Randles further submitted that he had exercised his power under the Will properly. He had sought to take possession of the property principally because of non-payment of rates and the non-habitable state of the property.

31 In his affidavit sworn 20 March 2009, Mr Randles deposed to the circumstances in which he formed the view that Reverend Klement was no longer capable of living in the property. It became clear to Mr Randles after an external inspection of the property in early 2006 that it was in an extremely poor and run- down condition. In January 2007, he attended the property with representatives of the Moreland City Council ('the Council') and inspected the property both inside and out. The inspection revealed that there were no services to the property and Reverend Klement had ethical objections to the services being reconnected. There was evidence of rat infestation and, in Mr Randles' view, the property was not fit for habitation.

32 In April and September 2007 respectively, the Council instructed solicitors to pursue the outstanding rates on the property and served a Notice to Comply requiring vegetation on the property to be cut back.

33 In November 2007, after obtaining probate, Mr Randles wrote to Reverend Klement advising him that his life estate in the property required him to keep the property in good order and in a habitable state of repair and to pay all rates, taxes and other outgoings. Mr Randles informed Reverend Klement that he had formed the view that Reverend Klement was no longer capable of residing in the property, and that the property should be sold. The proceeds would be invested so that the income could be used to pay for Reverend Klement's maintenance and advancement. When Mr Randles did not receive a reply, he instructed his solicitors to commence the possession proceeding. Mr Randles also deposed to having tried unsuccessfully to open lines of communication with Reverend Klement.

34 In response, Reverend Klement said that he generally disagreed with the positions taken by Mr Randles. It had all along been a 'conflict of worlds, cultural worlds, perspectives and so on'.

35 In the course of his oral submissions, Reverend Klement was asked whether it was correct that the property was in a very poor state of repair and that rates and taxes were not being paid. He responded that the allegation that rates were not being paid was based on an 'absolutism' that everyone has to pay rates. Reverend Klement contends that the obligation to pay rates is disputed and that he intends to take the dispute further. He has sought a waiver of rates from the Council on the grounds that the property is a place of worship. He has also sought a refund of all of the rates paid by his mother (and the executor on her behalf) from 1982 onwards. He submits that if he does not pay rates on the property, there is a reason for it, 'a serious moral and ethical reason'. He has many complaints against the 'constitutionally illegal' Council.

36 As to the allegation that he has failed to maintain the house in good repair, Reverend Klement thinks this refers to cracks in the walls, which he considers are aggravated by 'contra-environmental practices', including lawn mowing and the general denuding of profuse natural vegetation which would conserve water and better preserve the structure and integrity of the house.

37 As to clean-up, Reverend Klement says that when it has been enforced, he has cleaned up the house to the satisfaction of interested parties, including Mr Randles, the Council's environmental health officers and State Trustees. Were he to win and 'be empowered', he would start cleaning up the house in earnest, see to all repairs and undertake to sell the house ethically. He would not sell the house, and his mother would not have wanted to sell it, otherwise than ethically. His mother had it listed and named Casa de Fatima because she was very devout, and it would not be possible to sell it to 'just anyone'. He had in the past sent letters to some ethnic and Catholic newspapers, asking them to advertise the house in a limited way.

38 Reverend Klement confirmed that he did not want to continue living in the property. He had lived there for the convenience of it. However, he had an aversion to the whole district and - he said - the district had an aversion to him. He owned a bush block in the country, which was 'the perfect place' for him. So the difference in the end between himself and Mr Randles was not about selling the property, but as to who should be in control of the proceeds of sale. He agreed that the property should be sold as soon as it was fit to be sold, but his fundamental objection was to Mr Randles exercising what Mr Randles says is his right - and in the circumstances, his obligation - to sell it.

39 Reverend Klement agreed that no electricity or gas was connected to the property, but said that there was water. He explained why there was no gas and electricity. He objected to the way the gas company had laid pipes around Melbourne and the electricity company had refused to comply with his request for an immediate change to full solar power. He said that it was no hardship to him to live without gas and electricity.

40 Setting aside a judgment in default of a defence requires an applicant to establish a prima facie case on the merits and to provide a reasonable explanation to the Court as to why a defence was not filed.

41 As at the date of the hearing of the application for leave to appeal, Reverend Klement had not filed a defence. No explanation was provided by Reverend Klement as to why no defence had been filed, other than his assertion that the requirement to provide a defence 'point to point' forced him to adopt the 'paradigm' imposed by Mr Randles.

42 On the material before the Court, including matters alluded to in Reverend Klement's extensive oral submissions, it seems inevitable that, if the property is not sold, Reverend Klement will continue to live in the property in much the same way as he currently does, and that he will not pay rates. Mr Randles reasonably formed the view that Reverend Klement was not capable of living in the property and that he should, in accordance with Ludmilla Klement's trust, sell the property.

43 In our view, Reverend Klement has failed to establish that he has any defence on the merits to the possession proceeding. He has also failed to provide a reasonable explanation as to why he has not filed a defence. The decision of the judge below is not attended by sufficient doubt to warrant the grant of leave to appeal.

45 On 13 March 2009, Reverend Klement applied to the Supreme Court to have Mr Randles removed as executor of the Will. Although Reverend Klement did not identify any specific power on which he relied for the relief sought, the judge below considered the grounds for the application as expressed by Reverend Klement and concluded that 'the basis of the application must be that the [respondent] is unfit to act in the office of executor', within the meaning of s 34(1)(c) of the Administration and Probate Act 1958 (Vic).

46 The trial judge identified the following grounds as being relied on by Reverend Klement to support the application to remove Mr Randles as executor of the Will:

1. Mr Randles should be removed as executor due to his refusal to represent Ludmilla Klement because she had a guardian.

2. Mr Randles failed to review Ludmilla Klement's will and have her execute a new will.

3. Mr Randles drafted the Will so as to take away Reverend Klement's ability to deal with his mother's estate.

4. There was no proper basis for Mr Randles to exercise the discretion conferred on him under the Will to sell the property.

47 The judge below held that none of the grounds relied upon was such as to justify the removal of Mr Randles as executor:

On the evidence before me there is no material to support the contention that the defendant is not discharging his function as executor properly or that there has been any misconduct on his part in that, or any other, capacity or that he has breached or neglected his duties as executor in any sense or that he has any conflict of interest in acting as executor. To the contrary, the material before the court strongly supports the conclusion that the defendant has undertaken his role as executor in good faith and with diligence and is discharging his duties in accordance with the terms of the will.[2]

48 Her Honour found that many of Reverend Klement's contentions amounted to asserting that Mr Randles was unsuitable as executor of the Will because he was rigidly adhering to the terms of the Will in the discharge of his functions, rather than acceding to Reverend Klement's wishes about the way in which the estate should be administered.

49 Her Honour held that grounds 1 and 2 did not support an allegation that Mr Randles was not a fit person to discharge the role of executor. The matters alleged against Mr Randles occurred before Reverend Klement's mother died, and did not show any characteristic of Mr Randles that made him unfit to perform the role of executor. Ground 3 suffered from a similar deficiency. In any event, Mr Randles was not involved in the drafting of the Will.

50 Ground 4 had its foundation in fact. Mr Randles relied on the contents of his affidavit sworn on 15 June 2009. Her Honour referred to a series of facts relating to the habitability and safety of the property, including that it had no utilities, was in a poor state of repair, and was the subject of notices to comply from the Council, fire hazard warnings and letters of demand for outstanding rates. A further affidavit from Mr Randles sworn on 8 July 2009 deposed to his having received a new demand from the Council for unpaid rates and accounts.

51 There was also evidence before the judge below that Mr Randles proposed to use the proceeds of sale of the property to fund appropriate accommodation for Reverend Klement that gave him access to proper food and medical facilities.

52 Her Honour held that Reverend Klement had not put forward any credible material refuting the contents of Mr Randles's affidavit sworn on 15 June 2009. Her Honour said:

I accept the submission on behalf of the executor that there is no credible evidence that his decision to sell the property in accordance with the terms of the will was not made in good faith. Further, I am satisfied on the basis of the material before me that there was a proper basis for the decision that he made.[3]

53 Moreover, her Honour noted that Mr Randles denied that he was plotting to have Reverend Klement certified and stated that he had no intention of making such an application. He had made a guardianship application in 2007 in order that Reverend Klement be in a position to resolve his financial and medical needs and his dispute with the Department of Social Security. Her Honour also noted that guardianship applications in relation to Reverend Klement had previously been made by his mother and by the State Trustees. The latter had also applied for leave to sell the property on the grounds, amongst others, that the property was filthy and bordering on derelict, Reverend Klement had been unable to maintain the property in a reasonable state of repair, and the Council had issued a nuisance complaint in regard to the property.

54 By the Notice of Appeal, Reverend Klement raises the following grounds for setting aside the orders below and replacing the executor:

• moral or ethical irresponsibility towards Reverend Klement's mother in appointing a guardian;

• refusal to review the Will despite compelling reasons;

• positive plans - plots - by Mr Randles to institutionalise and invalidate Reverend Klement whilst robbing him of the property.

55 The remedy sought on appeal is 'empowerment of me'. Reverend Klement seeks to have a friend or similar 'co-Slavic' catholic or orthodox person, including a Slavic solicitor, appointed as executor.

56 In argument, Reverend Klement made the following points which he contended demonstrated Mr Randles' unfitness to act as executor of the Will. Mr Randles had abandoned his mother. He did not visit his mother or try to ascertain her wishes. Mr Randles' attitude was that, as his mother had been placed under guardianship, she had no rights and that the fact of the guardianship precluded her from changing her will or expressing other major wishes.

57 According to Reverend Klement, it was his mother's express wish to remove Mr Randles as executor, and to have nothing further to do with him because he had abandoned her. She wished to leave all matters of attorney, trusteeship and even guardianship to the Reverend Klement. Mr Randles had accepted anything that the VCAT Guardianship List and guardians decided as to medical treatments for his mother and so on. Although his mother had a right to be heard in the VCAT Guardianship List, she was never allowed to exercise that right.

58 Reverend Klement contended that, in the last years of her life, his mother was in effect being 'done to death' by a form of non-treatment. It was 'marginally a case of medical murder'. He said that in the last one-and-a-half years of her life, his mother was not allowed anything to drink. Psychiatric drugs were imposed on her by brute force, that is, by force-feeding. Neither he nor his mother were told about this for some time. She was denied the herbal and natural remedies that both he and his mother were committed to. The form of 'medical murder' that his mother was subjected to was - he contended - quite inconsistent with the position Mr Randles' law firm, Randles & Cooper, had taken in a separate Supreme Court proceeding, brought by the Public Advocate, in relation to the removal of a feeding tube from another patient. The firm had represented the Right to Life in that proceeding and had challenged the removal of the feeding tube. The Reverend Klement wrote to Randles & Cooper, while his mother was still alive, asking them to represent him in points he was making about the interpretation of the Medical Treatment Act 1988 (Vic) by VCAT and the Supreme Court, which in his view was wrong.

59 One of the grounds for removing Mr Randles as executor was said to be that, while his mother was alive, she was being treated in a way which he considered to be medically inappropriate and likely to lead to her death. Reverend Klement asked Mr Randles to intervene on the basis that he was the executor - or prospective executor - of his mother's will. He asked Mr Randles to do this on his behalf, but also on behalf of his mother. Mr Randles did not intervene.

60 Secondly, Reverend Klement said that in February 2007 Mr Randles had tried to place him under guardianship. An application of this kind had previously been made by the State Trustees. Reverend Klement had been interrogated by a psychiatrist, who subjected him to a 'three hour inquisition', and had been 'exposed' to community support services and Melbourne Extended Care. When moves like that are made, Reverend Klement said, he regards them as ad hominem. Mr Randles and the representative of the State Trustees had told him that they were not doing anything sinister, and were just trying to help him find alternative accommodation because they had to see to it that the house was well looked after. He nevertheless believed they were making serious moves to institutionalise him.

61 In summary, Reverend Klement submitted that the fact that Mr Randles made application for the appointment of a guardian to look after his affairs showed Mr Randles to have acted improperly and inappropriately as executor. Mr Randles acted in secret, well knowing what Reverend Klement's attitudes were towards a guardian and knowing that Reverend Klement completely denied having any disability, as well as having a hostile attitude towards psychiatry.

62 Further, Reverend Klement submitted that Mr Randles was not obliged to comply with the terms of the Will on the ground that 'extreme exigencies make a possibility of taking the view of the Ward of the State into account'. His idea for a religious and charitable trust was one that Mr Randles would be unsuitable to execute. He wanted the executor replaced by someone 'germane' to the features of the religious and charitable trust, which were also ethnic and had to do with political issues and the provision of a defence against the sort of abuse that had been inflicted on his mother.

63 Towards the end of his submissions on this point, Reverend Klement announced a significant change in his position. He informed the Court there had been a radical change in his intentions in relation to the dispositions towards him concerning tenancy. He said that, having given much thought to his strategy and purposes, and to fulfilling his mother's wishes, he wished to renounce the provision she had made in the Will for him as major beneficiary. Until such time as he was financial, he would have the choice of continuing to reside in his mother's house (which he did not want to do anyway) or moving somewhere else, like the property in the country that he owns. Alternatively, he could take up permanent or temporary residence with the community, in the religious and charitable trust that he envisaged. He asked all concerned not to view him as being dependent on the Will, or as being incompetent for life in other ways.

64 Reverend Klement expressed concern that, if guardianship were to be imposed upon him, he would be made to become an invalid again. He did not want to have a pension forced on him either.

65 In this context, Reverend Klement said that he had received a letter from Mr Randles offering to 'drop the move to get [him] institutionalised and to revert back to his mother's provision in the Will to allow him to transfer to a country property'. Reverend Klement said he had elected not to reply to the letter. It would not suffice for his purposes - he said - to proceed with the 'simplistic and misguided Will' of his mother's. He had 'much better ideas', which he had explained to his mother in his many visits to her while she was hospitalised and institutionalised, and she had approved of them wholeheartedly. That was why he was seeking removal and replacement of the executor, and the Court should know that.

66 Finally, Reverend Klement intimated that Mr Randles required psychiatric referral because he had expressed an intention to have the property demolished, when it did not need to be.

67 In response, it was submitted that for Mr Randles there was no basis for criticism of the executor concerning what had occurred while Ludmilla Klement was alive. The evidence at trial was that there had been no discussions between Reverend Klement and Mr Randles about Ludmilla Klement's treatment before her death.

68 As for the February 2007 guardianship application, Mr Randles had deposed that his intention in making that application was to ensure that Reverend Klement would receive appropriate assistance to make decisions in relation to his financial and medical needs and his entitlement to social security benefits. Mr Randles denied that he had ever had any intention of having Reverend Klement institutionalised.

69 In addition, Mr Randles submitted, neither of these matters would be sufficient in any event to establish that he was unfit to act as executor of the Will. He had performed his role as executor and trustee of the estate in an appropriate manner. His refusal to deal with the estate in accordance with Reverend Klement's plans for a religious and charitable trust was consistent with his obligations as executor. He was bound by the terms of the trust and had no power to permit Reverend Klement to deal with the estate in a manner inconsistent with his mother's testamentary intentions as set out in the Will.

70 The authorities make clear that an executor should not be removed without good reason.[4] We are quite satisfied that none of the matters which Reverend Klement advanced before the trial judge, and restated at length in this Court, constituted a good reason to remove Mr Randles as executor.

71 We agree with the trial judge that there is no material which would support a conclusion that:

(a) Mr Randles is not discharging his function as executor properly;

(b) there has been any misconduct on his part in that, or any other, capacity;

(d) he has any conflict of interest in acting as executor.

72 We also agree with the trial judge that the material before the court strongly supports the conclusion that Mr Randles has undertaken his role as executor in good faith and with diligence and is discharging his duties in accordance with the terms of the will. The appeal must therefore be dismissed.

73 We have set out at some length in these reasons the matters about which Reverend Klement has expressed concern. For the reasons we have given, none of them affords any basis either for setting aside the order for possession or for removing the executor. It is to be hoped that Reverend Klement will now recognise that the concerns he has cannot - in law - prevent the proper execution of the terms of his mother's will.

[1] Randles (as Trustee of the Estate of Ludmilla Klem) v Klement (Unreported, Habersberger J, 15 December 2008), [27].

[2] Randles v Klement [2009] VSC 320, [24].

[4] Dimos v Skaftouros [2004] VSCA 141; (2004) 9 VR 584; Monty Financial Service Ltd v Delmo [1996] VicRp 7; [1996] 1 VR 65.

Court (General Civil Procedure) Rules 2005

Klement v Randles; Klement v Randles [2010] VSCA 160

At a glance

Court

Decision date

Before

Source

Judgment (108 paragraphs)

Klement v Randles; Klement v Randles [2010] VSCA 160 (25 June 2010)

Legislation Cited (3)

Cases Cited (1)