Plaintiff v Defendant

Supreme Court of Victoria|2009-07-08|Before: DAVIES J

ADMINISTRATION AND PROBATE - Application for removal of executor - Unfit to act - Whether conduct prior to appointment justifies grounds - Conflict of interest and duty - Whether conflict of interest a ground for removal - s 34(1)(c) Administration and Probate Act 1958.

1 By originating motion filed on 13 March 2009 the plaintiff seeks the removal of the executor of the will and testament of Ludmilla Klement, also known as Sister Francis Klement, the plaintiff's mother. The power to have an executor removed is conferred by of the . In this case the relevant provision that the plaintiff appears to rely on is I say "appears to be relied on" as the plaintiff has not identified in the motion or submissions the power that he asks this Court to exercise, just the relief sought. Nonetheless, a consideration of the grounds on which the plaintiff relies bears out that the basis of the application must be that the defendant is unfit to act in the office of executor.

2 The grounds upon which the application has been made are not clearly elucidated in the motion itself but a fair reading of those grounds is as follows:

the first ground is that the defendant should be removed as executor due to his refusal to represent Ludmilla Klement because she had a guardian;
the second ground is in similar terms in that it amounts to an allegation that the executor failed to review the deceased's will and have her execute a new will;
the third ground is an allegation that the defendant drafted the deceased's will so as to take away the plaintiff's ability to deal with his mother's estate; and
the fourth ground relates to the exercise of discretion conferred on the defendant under the will that enables him to sell the property in which the plaintiff has a life interest; if the defendant forms the view that the plaintiff is no longer able to reside in the house; which view the defendant has formed; and which power the defendant proposes to exercise.

3 Before the proceeding commenced to be heard, the plaintiff made an application to consolidate two proposed proceedings with the current proceeding. The proposed proceedings are for the appointment of the plaintiff as executor of his mother's will and/or some other named persons and for the revocation of the will. Both applications have been prepared but have not yet been filed. The proposed application for revocation of the will is supported by a 21 page handwritten affidavit. I refused to make the order for consolidation on the basis that such an order cannot be made if the proceedings are not yet filed.

4 The plaintiff also sought an adjournment of the proceeding to enable the proceeding to be heard with the two other proceedings when instituted. The application for adjournment was opposed by counsel for the defendant. I refused to grant an adjournment on the basis put forward by the plaintiff for the following reasons.

5 First, the relief sought in one of the proposed applications, that is, the appointment of either the plaintiff or some person that he considers appropriate as executor, is a matter which is already before this Court as part of the orders sought and under s 34(1) of the Administration and Probate Act 1958. I have the power to make that order in this proceeding if I consider it is appropriate to do so.

6 Secondly, insofar as the revocation of will action is concerned, that involves matters which are discrete from the issues in this proceeding. The plaintiff urged on me that there were numerous matters in the 21 page handwritten affidavit that bore upon the present proceeding. I informed the plaintiff that he would have opportunity to put to the Court submissions concerning those matters insofar as they relate to the issues in this proceeding.

7 The plaintiff also sought an adjournment to enable him to seek discovery and to issue subpoenas. When asked about the documents that he sought by way of discovery and subpoena, the plaintiff could only speculate as to what those documents may be and the relevance of those documents to the issues in this proceeding. In other words, the pursuit of discovery and the intention to issue subpoenas would be one embarked upon as a fishing expedition and not a proper basis for adjournment.

8 However, I afforded the plaintiff the opportunity to have the proceeding adjourned to seek legal advice in relation to this proceeding as well as the proposed proceedings. That opportunity was not taken up by the plaintiff who indicated that he did not propose to obtain such legal advice.

9 The originating motion is supported by five affidavits made by the plaintiff, dated 12 January 2009, 8 March 2009, 26 March 2009, 22 April 2009 and 18 June 2009. There were two affidavits filed in opposition by the executor dated 15 June 2009 and 6 July 2009.

10 The plaintiff sought to cross-examine the executor. When I asked the plaintiff about his proposed line of cross-examination, the plaintiff indicated that his questions would be directed to ascertaining the discussions that the executor had with his mother because the plaintiff thought that his mother must have told the executor certain things and directed to ascertaining what kind of low care accommodation the executor had in mind as referred to in paragraph 25 of the executor's 15 June 2009 affidavit. I refused to allow the plaintiff to cross-examine the executor on either of those subject matters. With respect to the first subject matter, it was a purely speculative line of questioning not based on any fact. Furthermore, the executor had deposed he had no discussions with the plaintiff's mother concerning her will. As to the second proposed line of questioning, the issues with which the plaintiff is concerned are not matters that are relevant to the disposition of the issues in this proceeding. Although it is a relevant fact that the defendant proposes to exercise a power of sale conferred under the will and to use the proceeds to pay for alternative accommodation and support for the plaintiff, this is not the place or occasion for the plaintiff to ventilate his concerns about the kind of accommodation into which he may be placed if the property is sold.

11 I turn now to the relief sought in the originating motion. As the authorities make clear, an executor should not be removed without good reason.[1] Many of the plaintiff's arguments went to a contention that the executor was unsuitable to perform that role because he was rigidly adhering to the terms of the will in the discharge of his functions rather than acceding to the plaintiff's request about the way in which the plaintiff thought the estate should be administered. The plaintiff's reliance on unsuitability does not support a proper foundation for the removal of the defendant as executor. The issue of unsuitability, by and large, coloured the grounds specifically mentioned in the application but I will deal with those grounds separately.

12 Turning to ground 1, the plaintiff claimed that the deceased was placed and held against her wishes in the Good Shepherd Nursing Home and whilst recognising her need of high care residence, she should have been accommodated at a Slavic home or at a Seventh Day Adventists' place. That ground, or at least the matters supporting the ground, are not matters justifying the removal of the defendant as executor. First, s 34(1)(c) is, in terms, concerned only with the fitness of an executor after the grant or appointment.[2] The matters relied upon by the plaintiff concern allegations before the plaintiff's mother passed away. They are also matters that do not show any characteristic pertaining to the defendant which might be relied upon in support of the contention that the defendant is otherwise unfit to act as an executor. In other words, that material does not support an allegation that the executor is not a fit person to discharge the role of executor.[3]

13 Ground 2, as I indicated earlier, is to the like effect of ground 1. The same legal considerations apply. The further evidence of the executor was that he had no discussion with the plaintiff's mother about her will and it was another member of the executor's firm, a Mr Pentilla, who was responsible for the taking of instructions and the drafting of the will from the deceased.

14 Ground 3 suffers from a similar deficiency in that it relates to conduct preceding the appointment of the defendant as executor. Further, the will was not the product of the defendant nor was there any evidence that Mr Pentilla had some say in the contents of the will. Ground 3 does not amount to grounds for his removal.

15 Ground 4 is one that has its foundation in fact and it is necessary to turn to the terms of the will to understand the ground. Under the terms of the will the plaintiff was given a life interest in the deceased's property at 105 Collier Crescent, West Brunswick 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 fair wear, and damage by fire, lightning, flood and tempest excepted, and that he keep the property insured for its full value to the satisfaction of the trustee of the will. The deceased also empowered the trustee (who is the executor) at the request of the plaintiff to sell the property and to use the proceeds of sale in the purchase of another property to be held upon the same trusts and she further directed that in the event of her son not wishing to reside in the property, then the trustee shall have the right to rent out the property. The will then next prescribes as follows:

I FURTHER DIRECT that 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.

16 The chronology of events is that the will was executed on 30 May 2002. On 27 July 2005 Ludmilla Klement died. On 8 May 2006 the defendant obtained grant of probate of the deceased's estate. In his affidavit the executor deposed that following "[his] stewardship of the deceased's estate. [He] visited the plaintiff on several occasions at the Collier Crescent property and tried to discuss with him [his] appointment as his mother's executor and trustee. At that time the Collier Crescent property did not have any utilities, including electricity and gas connected and did not have access to the services of the council waste collection. The house was in a state of very poor repair and there was a putrid odour emanating from it".[4] The executor was concerned for the welfare of the plaintiff and attempted to obtain his consent to have the property repaired so as to make it habitable. The plaintiff refused to listen to the defendant. The executor also deposed that he was unable to reach an agreement with the plaintiff to enable the repair of the property so that it was in a habitable state and to address issues of payment of the rates by the plaintiff, and that the plaintiff refused to get any assistance to return the property to a habitable state.

17 On or around 13 December 2006 the executor received a notice to comply addressed to the plaintiff from the Moreland City Council alleging a breach of the bylaw and requiring the removal of the side fence and vegetation. On 21 December he received a telephone call from Leanne McDownie of the Moreland City Council concerned about the condition of the Collier Crescent property and advised that the health services officer would be attending with a police officer on 12 January 2007. The executor attended on order that day to endeavour to resolve the many problems with the property and with the plaintiff. He deposed that on that occasion it was evident to him that the property was in a similar condition as it was in 2006 and again the plaintiff refused to discuss the issue of the house condition and refused to cooperate in the removal of vegetation and the fence, which was done by council officers.

18 On or around 21 February 2007 the executor received a copy of a fire hazard warning which he sent to the plaintiff. That was followed up by a prevention notice from the Metropolitan Fire Brigade served on 6 March 2007. Again, the executor attempted to get the plaintiff to agree to attending to the requirements of the notice but was unsuccessful. On 6 March 2007 a further notice was sent by the Moreland City Council fire prevention office.

19 On or around 28 February 2007 the council sent the plaintiff a letter of demand for outstanding rates and that letter was forwarded to the plaintiff. On or around 20 September 2007 the executor received a further notice addressed to the plaintiff requiring the overhanging vegetation to be cut from the front of the property and that notice was also passed on to the plaintiff but the executor did not believe that he had rectified the notice requirements.

20 By November 2007 the executor was still unable to arrange repairs to the Collier Crescent property and the property remained in an uninhabitable state. The property had no services and the executor was satisfied that the plaintiff was not capable of residing in the property. In November 2007 the executor proposed to sell the deceased's property and in his affidavit states that he proposed to use the proceeds of sale to fund appropriate accommodation for the plaintiff that provided for his accommodation needs with access to proper food and medical facilities which take into account the plaintiff's dietary requirements. The executor deposed that he received advice from a local estate agent in March 2008 that the Collier Crescent property could not be sold whilst the plaintiff was occupying the property. The executor issued a proceeding in the Supreme Court seeking possession of the Collier Crescent property. The plaintiff issued an application seeking a stay of those proceedings, which was dismissed. On 1 October 2008 judgment for possession of the Collier Crescent property was entered. On 19 January 2009 the plaintiff filed a notice of appeal against the entry of the judgment. The Court of Appeal has yet to allocate a date of hearing for that appeal.

21 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.

22 Critically and relevantly, the plaintiff has not put before the court in this proceeding any credible material that refutes the contents of paragraphs 11 through to 24 of the affidavit of the executor sworn on 15 June 2009. I also note that in the affidavit of 8 July 2009 that the executor deposes to having received a new demand from the City of Moreland relating to unpaid rates and accounts for the occupation of the Collier Crescent property.

23 Much of the plaintiff's submission was directed to assertions that the executor intends to place the plaintiff under guardianship or have him certified. It was also alleged by the plaintiff that the executor seeks to have him put into a home for homeless men. The executor in his affidavit has denied that he is plotting to have the plaintiff certified and states that he has not made and does not intend to make, such an application. He deposed that he had made an application to have a guardian appointed in 2007. The basis of the application was that a guardian would assist the plaintiff to make decisions in relation to his financial and medical needs and resolve a dispute that the plaintiff has with the Department of Social Security. The executor deposed his concern that the plaintiff be able to avail himself of his entitlement to social security benefits to ensure that he is financially independent. Nothing in this material indicates that the executor was or is improperly using his position. Moreover, it is noteworthy that the application by the executor had been preceded by other guardianship applications, one that had been made by the plaintiff's mother back in 1990 on the basis that the plaintiff was in need of medical treatment, one made by a social worker at the Melbourne Extended Care and Rehabilitation in September 2002 and in November 2004 the State Trustees also issued an application for the appointment of a guardian to handle the plaintiff's affairs. It is also noteworthy that in September 2004 (before the deceased's death) the State Trustees applied for leave to sell the Collier Crescent property on grounds, amongst others, that the property was filthy and bordering on derelict, that the plaintiff was unable to maintain the property in a reasonable state of repair and that the local council had issued a nuisance complaint in regard to the property, that application apparently being made at the request of the plaintiff's brother. The executor deposed in his affidavit that prior to the hearing the State Trustees had arranged for the Collier Crescent property to be cleaned and for rubbish to be removed from the property against the wishes of the plaintiff and that as the property had been cleaned, the Tribunal declined to make the order.

24 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.

25 For those reasons I refuse the motion by the plaintiff to have the defendant removed as executor. I also refuse, accordingly, to accede to the plaintiff's request that he be replaced as executor or have such other of the persons as he has named in the originating motion appointed as executor.

The originating motion filed 13 March 2009 is dismissed.
The plaintiff is to pay the defendant's costs of the proceeding to be taxed on a party/party basis in default of agreement.
The defendant's costs of the proceeding on an indemnity basis be taxed and paid out of the estate of Ludmilla Klement (deceased) less any moneys received pursuant to paragraph 2 herein.

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

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

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

[4] Paragraph 11 of the Affidavit of Peter James Randles made 15 June 2009.

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