Plaintiff v First Defendant

1 The principal controversies for determination in this proceeding are whether the Court has the power to make orders 'passing over' the executors of the estate of Joan Jackman Coffey (the deceased) and, if it does, whether and in what way that power should be exercised in the circumstances of the case.

2 The application to pass over the executors of the deceased's estate is made in circumstances where, although the deceased died nine years ago on 17 February 2014, leaving a will made on 26 September 2008 (the Will), an application for a grant of probate has not yet been filed with the Court.

3 The deceased and John Michael Coffey (JM Coffey) had six children: Janice Coffey,[1] Frances Coffey, Michael Coffey and Edwina Coffey, as well as Mrs Ruth O'Halloran,[2] the plaintiff in this proceeding, and John Lawrence Coffey, who is the first defendant.[3] It would appear that Edwina is disabled, although the nature and extent of her disability is not revealed by the evidence.

4 JM Coffey died on about 23 July 2006 and, as I have noted, the deceased died in 2014. JM Coffey and the deceased farmed grain and livestock in the area of Kewell, which is about 30km north of Horsham, where they had substantial landholdings. They traded as a partnership known as the 'JM & JJ Coffey partnership'.

5 By the 1980s, members of the Coffey family had formed a partnership to engage in sheep and wool production (the sheep partnership). Since the early 2000s, the partners in the sheep partnership have been: JM Coffey, the deceased, the John L Coffey Family Trust (the Coffey Trust) and the BG & RS O'Halloran partnership (the O'Halloran partnership).

6 The trustee of the Coffey Trust is Tampa Holdings Pty Ltd (Tampa), of which Mr Coffey is the secretary.

7 At all relevant times, the O'Halloran partnership has been conducted by Mrs O'Halloran and her husband, Brendan O'Halloran.

8 The Will was drafted by John Blanch, the second defendant in the proceeding. Mr Blanch is a solicitor who was admitted to practice in 1971. He commenced acting for JM Coffey and the deceased in relation to their estate planning in about 2003.

9 The Will appoints Mrs O'Halloran, Mr Coffey and the deceased's accountant, Robert Henry Wald, as executors of the Will and trustees of the deceased's estate. Mr Wald, who had been the deceased's and JM Coffey's accountant since about 1986 or 1987, executed a Deed of Renunciation on 25 March 2014.

10 The dispositions made by the Will are set out in clauses 3-5.

(a) By clause 3, three real properties are devised to Mrs O'Halloran. It was uncontroversial that these properties were in fact transferred to Mrs O'Halloran before the deceased died.

4. I LEAVE the following specific bequests:

(a) all my share and interest in livestock and in all plant and equipment and movable items forming part of the family farming operations to my daughter Ruth Stanislaus O'Halloran;

(c) Clause 5(a) sets out the terms of two trusts upon on which the entitlements of Janice Coffey and Edwina Coffey were to be held (the Janice Trust Fund and the Edwina Trust Fund respectively).

(d) Clause 5(b) provides for the residue of the estate to be divided as follows:

(i) 27.5% to the Janice Trust Fund;

(ii) 27.5% to the Edwina Trust Fund;

(iii) 20% to Frances Coffey;

(iv) 15% to Michael Coffey;

(v) 5% to Mrs O'Halloran; and

(vi) 5% to Mr Coffey.

11 It may also be noted that clauses 10 and 11 of the Will provide as follows:

1. I DECLARE that for so long as any son or daughter of mine is acting as an executor of this my Will and trustee of my estate they or any of them are not excluded from making a decision in relation to my estate only because of personal interest or concern in the decision, and the disqualification imposed by law against the purchase of assets of my estate by a trustee does not apply to my sons nor my daughters who are as competent to purchase any part of my estate intended to be sold by my Trustees or to benefit personally from a decision of my Trustees as though they or any of them did not hold the office of trustee.
2. I DECLARE that this my Will has been drafted by me after careful consideration of the requirements and expectations of each of my children. In particular I note that:

• the provisions in favour of my son John Lawrence Coffey take into account the assets he will receive as being joint owner of the home block and what he has already purchased on his own behalf;
• the provisions in favour of my daughter Ruth Stanislaus O'Halloran reflect the fact that she and her family have stayed on the farm and managed the property;
• the provisions in favour of my son Michael Thomas Anthony Coffey reflect the land that he has been given during my lifetime; and
• the provisions in favour of my daughter Frances Lillian Coffey reflect the assistance given to her in purchasing her first house.

I am therefore confident that this my Will reflects my wishes and I express my displeasure, disapproval and prohibition if any beneficiary named in this Will seeks to challenge the provisions of this my Will.

12 It was uncontroversial that the residuary estate is principally farming land of about 1871 acres. Parcels of that land abut, or are otherwise very close to, land owned by Tampa, the trustee of the Coffey Trust.

Failed efforts to obtain a grant of probate: a summary

13 In March 2014, soon after the deceased died, Mr Blanch was engaged to prepare an application for a grant of probate of the Will. On 7 May 2014, Mr Blanch caused an advertisement to be listed on the Court's website which gave notice that Mrs O'Halloran and Mr Coffey intended to apply for a grant of probate of the Will.

14 In June 2014, Mr Blanch prepared an application for a grant of probate in relation to the Will, including a draft inventory of assets and liabilities of the deceased's estate, which he provided to Mrs O'Halloran and Mr Coffey on 25 June 2014. The draft inventory which Mr Blanch prepared after making inquiries of Mr Wald, various institutions and Mrs O'Halloran, recorded that the estate had gross assets of about $6.1 million and total liabilities of about $220,000.

15 On 27 July 2014, Mr Coffey informed Mrs O'Halloran that he considered that the draft inventory prepared by Mr Blanch was not accurate and urged her to cooperate in producing a realistic inventory. The following day, Michael Coffey and Frances Coffey provided correspondence to Mr Blanch in relation to the draft inventory he had prepared in which they stated that they did not support Mrs O'Halloran or Mr Coffey signing the draft documents until the various issues they raised in relation to the draft inventory were clarified.

16 On 28 July 2014, Mrs O'Halloran signed the application for a grant of probate prepared by Mr Blanch.

17 On 29 August 2014, Mr Blanch told Mrs O'Halloran and Mr Coffey that he was conducting further enquiries to verify the information required for a grant of probate in order to resolve the outstanding issues which had arisen between the beneficiaries.

18 On about 24 April 2015, Mr Blanch produced a revised draft inventory which recorded gross assets of about $5.8 million and total liabilities of about $320,000. The content of an inventory remained unresolved and correspondence about various issues concerning the estate, including the preparation of an inventory, continued between Mr Blanch, Mrs O'Halloran and Mr Coffey until August 2015.

19 On 27 August 2015, Mr Coffey provided Mr Blanch and Mrs O'Halloran with an inventory of assets and liabilities for the deceased's estate which he had prepared. He proposed that it be used as the basis of an application for probate in respect of the Will.

20 The inventory prepared by Mr Coffey recorded total gross assets valued at approximately $7.6 million (as compared to $5.8 million in the revised inventory prepared by Mr Blanch) and 'net' liabilities of approximately $100,000[4] (as compared to $320,000 in the revised inventory prepared by Mr Blanch). The major differences between the two inventories were that the inventory prepared by Mr Coffey included two additional assets not included in the inventory prepared by Mr Blanch: (a) a debt of approximately $2.175 million said to be owed to the deceased's estate by the O'Halloran partnership; and (b) approximately $380,000, being an amount said to represent the deceased's equity in the sheep partnership. The calculation of the second of these amounts was, in part, based upon a debt of $646,844 said to be owed to the deceased's estate by the O'Halloran partnership.

21 Mrs O'Halloran has denied that the O'Halloran partnership owes any debts at all to the deceased's estate.

22 Mr Blanch considered that the inventory prepared by Mr Coffey was not accurate because it was speculative and not based on facts. In his view, it reflected a view of assets and liabilities which might have existed had the deceased's estate been managed in her lifetime in the way that Mr Coffey thought it should have been, but it did not reflect the deceased's assets and liabilities as at the date of her death, and it did not reflect the information provided to Mr Blanch by Mr Wald.

23 The parties have since remained at an impasse about the contents of an inventory of the deceased's estate. As a consequence, an application for a grant of probate has not yet been filed with the Court.

24 Between about 2015 and the commencement of this proceeding in 2019, Mrs O'Halloran and Mr Coffey also exchanged an extensive amount of correspondence about various issues concerning the administration of the estate, many of which remained unresolved. The issues which were the subject of dispute in this period included: the negotiation of leases of estate property to telecommunication providers for the purposes of installing and operating phone towers; the existence of an agreement between the deceased and Mr Coffey as to his use of her land; the involvement of non-executor family members in decision making and negotiations on behalf of the estate; contracts with sharefarmers occupying estate land; the appointment of and payment to accountants for the estate; the payment of council rates in relation to estate property; the registration of the estate for a 'grower registration number' and related 'NGR card'; and the manner in which instructions on behalf of the estate would be given.

25 Mrs O'Halloran filed an originating motion with the Court on 4 March 2019 seeking relief under s 15 of the Administration and Probate Act 1958 (the A&P Act). The originating motion is comprised of eighteen paragraphs which it is necessary to set out in full.

WHEREAS

1. On 26 September 2008, Joan Jackman Coffey (the deceased) made a will (the will).

2. The will appoints the plaintiff, the first defendant and Robert Henry Wald (the deceased's accountant) as executors of her will and trustees of her estate.

3. On 17 February 2014, the deceased died.

1. On 25 March 2014, the deceased's accountant executed a Deed of Renunciation. Resultantly, the plaintiff and the first defendant are the only executors of the will.

2. In or around March 2014, the plaintiff and the first defendant engaged the second defendant to prepare documentation to obtain a grant of probate of the deceased's will.

3. On 24 November 2014, the plaintiff and the first defendant posted an advertisement on the Supreme Court of Victoria's website stating their intention to make an application for a grant of probate of the deceased's will.

4. In or around 2014, the second defendant prepared an application for a grant of probate on behalf of the executors (the probate application).

8. The first defendant has refused to sign the probate application.

9. The will is being held by the second defendant.

1. The second defendant will not release the will without the authority of both the plaintiff and the first defendant.

2. The first defendant has failed, refused or neglected to bring the will into Court to prove the same or renounce probate thereof.

3. The first defendant has failed, refused or neglected to authorise the plaintiff to obtain the original will from the second defendant so that it can be proved.

THE PLAINTIFF CLAIMS THE FOLLOWING RELIEF OR REMEDY

1. That this originating motion be heard and determined forthwith by the Judge in Charge of the Trusts, Equity and Probate List.

2. That pursuant to s 15 of the Administration and Probate Act 1958, the first defendant show cause as to why he should not within such time as the Court may specify bring the will into Court, and, by authorising and directing the second defendant holding the will to do so, either:

(a) prove the will; or

(b) alternatively, renounce probate thereof.

15. In the alternative, an order that the plaintiff be entitled to prove the will.

1. That pursuant to s 15 of the Administration and Probate Act 1958, the second defendant deliver the original will of the deceased dated 26 September 2008 to the Registrar of Probates.

2. That the cost of and incidental to this application shall be paid by the first defendant personally, without recourse to the estate of the deceased.

18. Any such further order as deemed necessary by this Honourable Court.

26 On 17 May 2019, Mrs O'Halloran informed the Court that, in place of the order sought in paragraph 15 of her originating motion, she sought that both she and Mr Coffey be passed over, and an independent administrator appointed to prove the Will and administer the estate. That has remained her position since that time.

27 The proceeding was determined on the papers by a trial judge who, on 2 October 2020, ordered that Mrs O'Halloran and Mr Coffey be passed over as executors of the Will, and granted leave for the appointment of an independent administrator.

28 An appeal from the orders made on 2 October 2020 was successful and, on 26 February 2021, the Court of Appeal made orders remitting the proceeding to the Trial Division.

29 On 13 August 2021, Mr Coffey, who at all times has represented himself in this proceeding, filed a summons in the following terms:

WHEREAS

Joan Jackman Coffey's former attorney (POA) Ruth Stanislaus O'Halloran ("RO") held multiple conflicting roles, concealed the accounts, accepted gifts with a value in excess of $1 million and transferred over $320,000 to the BG & RS O'Halloran partnership while attributing large unprecedented losses to Joan Jackman Coffey (deceased). ("JJC")

After JJC died in 2014 but before probate and before the first inventory was presented, RO and/or the BG & RS O'Halloran partnership took possession of much of the deceased's machinery and personal effect, amounting to unauthorized distribution before probate.

RO withheld critical information thereby preventing the co-executor John Lawrence Coffey ("JC") from swearing that the inventory she organised was "True and Perfect".

Further RO failed to adopt or challenge an alternative inventory proposed in 2015 causing another delay of over five years.

In 2019, assisted by court officers, RO asked the court for "an order that the plaintiff be entitled to prove the will."

There is reasonable cause to suspect that RO is not a suitable person to be an executor and that RO will be unable to show cause why she should not renounce probate.

You are summoned to attend before the Court on hearing of an application under ORDER 54 of the SUPREME COURT (GENERAL CIVIL PROCEDURE) RULES 2015 by JOHN LAWRENCE COFFEY (First Defendant and Trustee for the Estate of JJ Coffey) for a Court order:

1. That pursuant to ORDER 54.02 of the Supreme Court Rules 2015, RUTH STANISLAUS O'HALLORAN show cause as to why she should not renounce probate of the will of JOAN JACKMAN COFFEY. (Deceased).

2. That when Ruth Stanislaus O'Halloran fails or refuses to show cause as to why she should not renounce probate, Ruth Stanislaus O'Halloran is again passed over as an executor of the will of JOAN JACKMAN COFFEY.

3. That when Ruth Stanislaus O'Halloran is passed over as execute [sic] of the will of Joan Jackman Coffey, RUTH STANISLAUS O'HALLORAN is no longer a personal representative or trustee of the ESTATE OF JOAN JACKMAN COFFEY ("Estate").

4. The First Defendant be permitted to uplift the original will of Joan Jackman Coffey, deceased, dated 26 September 2008, from the Registrar of Probates for the purpose of his application for probate.

5. The plaintiff and the second defendant produce to the first defendant any documents and other material held by the plaintiff and/or second defendant that the first defendant needs in order for him to bring his application for the grant of probate with the will of Joan Jackman Coffey dated 26 September 2008 annexed.

6. That pursuant to ORDER 54.06, the court declines to order administration of the Estate.

7. The First Defendant have liberty to apply.

8. Each party pay their own costs.

30 On 19 August 2021, a judicial registrar made orders that Mr Coffey's summons be listed for hearing and determination together with the trial of the originating motion. Orders were also made which required the parties to file submissions identifying the issues to be dealt with at trial. The parties subsequently filed submissions dealing with that matter.

31 On 29 October 2021, I listed the originating motion and Mr Coffey's summons filed on 13 August 2021 for trial to commence on 29 November 2021 on an estimate of three days. In addition to various other pre-trial arrangements, I also made the following order:

Pursuant to s 49 of the Civil Procedure Act 2010, the trial of the originating motion and the defendant's summons dated 13 August 2021 be conducted by reference to the following three key issues:

(a) Whether in this proceeding the Court has power to order that both the plaintiff and the first defendant, or the plaintiff alone, be passed over as executors of the estate of Joan Jackman Coffey? ('Issue 1')

(b) If Issue 1 is answered in the affirmative, whether the power to pass over executors should be exercised by the Court ordering that the plaintiff and the first defendant, or solely the plaintiff, be passed over as executors of the estate of Joan Jackman Coffey? ('Issue 2')

(c) If the plaintiff and the first defendant are passed over as executors of the estate of Joan Jackman Coffey, whether an independent person should be appointed to administer the estate? ('Issue 3')

32 The trial was not completed within the estimate of three days. The parties tendered into evidence a voluminous amount of documents, most of which were not addressed in oral submissions. Having heard the evidence and the parties' submissions at trial, I remained satisfied that the three issues identified in the orders made on 29 October 2021 are the key issues for determination raised by the originating motion and by Mr Coffey's summons. I separately address them below.

Whether in this proceeding the Court has power to order that both the plaintiff and the first defendant, or the plaintiff alone, be passed over as executors of the estate of Joan Jackman Coffey?

34 In her originating motion, Mrs O'Halloran sought that, pursuant to s 15 of the A&P Act, Mr Coffey show cause as to why he should not prove the Will or renounce probate thereof and 'any such further order as deemed necessary by this Honourable Court'. At the directions hearing on 17 May 2019, Mrs O'Halloran agreed to be passed over and effectively amended her application to seek that both remaining named executors be passed over and an independent person be appointed to administer the estate.

35 Mrs O'Halloran submitted that the power to pass over one or both executors is an 'ancillary power' to the Court's power under s 15 of the A&P Act which provides as follows:

The Court shall continue to have power to summon any person named as executor in any will to prove or renounce probate of the will and to do such other things concerning the will as have heretofore been customary and in particular and without limiting the generality or effect of the foregoing provision in any case where the executor named in a will or any person having possession of any will neglects to bring such will into court within six weeks from the death of the testator or where the executor named in a will neglects to prove the same or renounce probate thereof within six weeks from the death of the testator any party interested under such will or in the estate or the State Trustees or any creditor of the testator may apply to the Court for an order calling upon the executor or any person having possession of such will to show cause why he should not bring such will into court or why such executor should not prove the same or renounce probate thereof or in the alternative why administration with such will annexed should not be granted to the applicant and upon proof of service of the summons, if the executor or such person does not appear or show sufficient cause as aforesaid, it shall be lawful for the Court to make an order upon such executor or person to bring such will into court and make such order in the premises and as to costs as appears just and the Court may grant administration of the estate to such applicant.

36 Although the A&P Act does not contain an express power to pass over an executor, it was submitted to be ancillary to the Court's power in respect of the administration of estates generally. In particular, the power to pass over executors was submitted to be ancillary to the Court's power to make grants generally, and also to the exercise of any powers prior to the making of a grant. The following words in s 15 of the A&P Act were said to support that conclusion:

The Court shall continue to have power to summon any person named as executor in any will to prove or renounce probate of the will and do such other things concerning the will as have heretofore been customary...

37 It was submitted that, in its probate jurisdiction, the Court routinely exercises the power to pass over executors in the context of different types of applications. Mrs O'Halloran referred to three particular cases - Re Munro;[5] Re Arklie (No. 2);[6] and Re Orloff (No 2)[7] - which dealt with the Court's power to pass over an executor, although counsel conceded that none were wholly analogous to the present matter. It was submitted that they show that the Court, in its inherent jurisdiction or using powers concomitant or ancillary to the powers contained in the A&P Act, may exercise powers to pass over an executor.

38 It was submitted that the Court has the inherent power to ensure the proper exercise of its jurisdiction in relation to probate matters. In addition, s 15 of the A&P Act envisages that whatever powers existed prior to the enactment of that legislation would continue to exist, notwithstanding the wording of s 15 of the A&P Act and notwithstanding the lack of any express provision empowering the Court to pass over named executors. Section 15 was not specifically an exclusive source of power for the Court to make a passing over order.

39 Counsel relied upon Re Munro to submit that the power to pass over is concomitant of the power of the Court to grant representation in peculiar circumstances.[8] The jurisdiction of the Court in its probate jurisdiction is broad and brings with it an 'inherent power necessary to the effective exercise of the jurisdiction', including the power to pass over executors.[9]

40 Mrs O'Halloran submitted that the usual rule is that the person who has the greatest interest in the estate will take over the administration of the estate. However, the Court does not have to abide by that rule where it is in the best interests of the beneficiaries generally to order otherwise, that is, it may pass over the named executors. Reference was made to Bar-Mordecai v Rotman,[10] (endorsed by Robson J in Re Orloff (No 2))[11] in which Einstein J held that the circumstances for the exercise of the inherent power are found in the 'real object of the court', being 'the due and proper administration of the estate and the interests of the parties beneficially entitled thereto'.[12] Where the Court may pass over the named executor, it will 'not be appropriate to appoint as administrator the person having the largest interest if that person would otherwise be passed over. For example, if the applicant lacked appropriate management ability, the court may refuse to make the grant'.[13]

41 Mr Coffey contended that the claim for him to be passed over as an executor had no basis in s 15 of the A&P Act or in any other statute.

42 Mr Coffey submitted that there was no mention of passing over in the originating motion, there is no need for a passing over order, and it has no place in an application under s 15 of the A&P Act. Mr Coffey contended that Mrs O'Halloran should simply renounce probate, which does not require an order from the Court. By seeking to have him passed over, Mr Coffey contended that Mrs O'Halloran would avoid the application of s 15 of the A&P Act because the plaintiff is 'unlikely to succeed in being appointed as administrator of the will'.

43 Mr Coffey referred to paragraph 16 in the originating motion - which seeks an order under s 15 of the A&P Act that the second defendant deliver the Will to the Registrar of Probates - and submitted that, given there is statutory relief available to the plaintiff in s 15 of the A&P Act, there is therefore no need to invoke the inherent jurisdiction of the Court.

44 Mr Coffey submitted that the different portions of the text of s 15 should be interpreted as follows:

The Court shall continue to have power to summon any person named as executor in any will to prove or renounce probate of the will and to do such other things concerning the will as have heretofore been customary ...

(a) It was submitted that these lines do not confer any power on the Court but merely preserve the power to summon a named executor. There is a limited power of the Court to summon executors in that the Court can only summons the executor in the three circumstances mentioned. The Court cannot summons named executors for novel reasons. The summonsing of named executors to be passed over is not a customary practice that has no relevant precedent. Summonsing them in an attempt to demonstrate acrimony exceeds the powers of the Court.

... and in particular and without limiting the generality or effect of the foregoing provision in any case where the executor named in a will or any person having possession of any will neglects to bring such will into court within six weeks from the death of the testator or where the executor named in a will neglects to prove the same or renounce probate thereof within six weeks from the death of the testator...

(b) Mr Coffey submitted that these lines provide the minimum period of six weeks before the right to apply is available. It also limits the application to two classes of people. He and Mrs O'Halloran fit into these classes. They are executors and the second defendant is a person having possession of the Will. If Mrs O'Halloran can demonstrate that he was summonsed under s 15 on a bona fide basis, then she may be entitled to the remedies set out in the part of s 15 of the A&P Act mentioned below in the third 'part' of s 15.

... any party interested under such will or in the estate or the State Trustees or any creditor of the testator may apply to the Court for an order calling upon the executor or any person having possession of such will to show cause why he should not bring such will into court or why such executor should not prove the same or renounce probate thereof or in the alternative why administration with such will annexed should not be granted to the applicant ...

(c) Mr Coffey submitted that these lines grant an interested person, the State Trustees or a creditor, the right to apply for an order, defines that order and specifically refers to 'the applicant'. The beneficiaries are interested persons, and Mrs O'Halloran is entitled to apply to the Court for an order to show cause, which she has not done. The interested person's remedy is limited to being able to apply to the Court for one or more of four clearly defined orders, set out in this section.

(d) The orders sought by Mrs O'Halloran were not any of the orders in this part of s 15 of the A&P Act. Mr Coffey contended that the Court is not obliged to make any of the orders, and therefore there are no further remedies available to Mrs O'Halloran under s 15 of the A&P Act and the originating motion must be dismissed.

... upon proof of service of the summons, if the executor or such person does not appear or show sufficient cause as aforesaid, it shall be lawful to the Court to make an order upon such executor or person to bring such will into court and make such order in the premises and as to costs as appears just and the Court may grant administration of the estate to such applicant.

(e) Mr Coffey submitted that these lines empower the Court to grant administration to an applicant; the Court has no statutory power to appoint an administrator other than 'the applicant'. This section relies on the summons being a valid summons and restricts the type of applications that can be made.

(f) It was submitted that s 15 of the A&P Act profoundly limits the power of the Court; the remedy here is only available to an applicant, who must be a person who has obtained an order for someone to show cause. The possibility that an applicant may be granted administration does not equate to a general power of the Court to pass over the executors.

45 Mr Coffey submitted that no remedy provided by s 15 of the A&P Act had been sought by Mrs O'Halloran. An application for administration by someone other than the applicant is not a remedy provided for by s 15 of the A&P Act. Section 15 of the A&P Act specifies that the 'applicant' be granted administration, not that the applicant specify someone else as administrator. Allowing the applicant to have someone else be granted administration 'avoids the applicant being tested'.

46 Mr Coffey submitted that the originating motion was flawed and that Mrs O'Halloran was limited to the remedies she sought in the originating motion. She has 'not applied for the administration' that s 15 of the A&P Act provides.

47 In oral submissions, Mr Coffey contended that this was not a passing over application. The originating motion limits the remedies to those in paragraphs 14, 15 and 16 of the originating motion. None of those seek for anyone to be passed over. Mr Coffey considered that the application appears to be an application for a grant of probate by the plaintiff.

48 Paragraph 16 of the originating motion states that the second defendant deliver the Will to the Registrar of Probates, pursuant to s 15 of the A&P Act. Mr Coffey contended that the Court does not have the power to make that order because the Court did not make an order requiring the second defendant to show cause why he could not bring the Will into court. Paragraph 16 of the originating motion is therefore invalid.

49 Mr Coffey submitted that Mrs O'Halloran's submission that they both be passed over was 'corrupting' of 'due process and natural justice'. Mr Coffey had not made an application for probate and the Court has no power to grant it and make him an executor. Therefore, he cannot be lawfully removed as named executor.

50 Mr Coffey submitted that there is no way to remove an executor from a will without modifying the Will itself. If an administrator is appointed, then s 21 of the A&P Act states that an executor cannot act while the administration is in force. Even though administration has been granted, the executor has not been passed over.

51 Mr Coffey submitted that the originating motion should accordingly be dismissed.

52 The Court's power to pass over a named executor has been recognised in a number of recent judgments of this Court. Further, as I will explain - and contrary to Mr Coffey's submissions which I reject - that recognition proceeds from a sound understanding of the Court's jurisdiction and powers.

53 In Re Munro, Derham AsJ set out the legal principles relevant to the Court's power to pass over executors as follows:[14]

There is no express power conferred on the Court by the A & P Act to pass over an executor or executors. Rule 5.02 of the Probate Rules, however, refers to applications for a grant of representation under 'peculiar circumstances'. It may be that the power to pass over is a concomitant of the power of the Court to grant representation under peculiar circumstances.[15] In any event, this Court's jurisdiction in Victoria is unlimited[16] and its probate jurisdiction pursuant to the A & P Act[17] and the Supreme Court Act 1986 (Vic)[18] is broad and brings with it an inherent power necessary to the effective exercise of the jurisdiction granted.[19] That power extends to prevent steps being taken that would lead to injustice[20] or render the grant inefficacious. This is expressed in different ways depending on the circumstances. Another way of expressing the power is that it is a power to maintain the authority of the court and to prevent its processes from being obstructed and abused.[21] Where an application for a grant of probate is made to an executor appointed by a deceased's will and the circumstances show that the executor is liable to be removed, passing over that executor will prevent the grant leading to injustice or being rendered inefficacious, obstructed or abused.

Where the Court exercises the power to pass over a named executor, it does so having regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate.[22] The consequence is that either the other named executors will receive a grant of representation or letters of administration with the will annexed will be granted to someone else.[23]

54 Associate Justice Derham observed that it is 'clearly established that the Court will not readily pass over a named executor and, in general, a person named as executor is entitled to a grant of probate'.[24] In referring to the examples given by Besanko J in Re Crane, his Honour stated that the circumstances in which the Courts of probate have passed over an executor, or revoked a grant of probate, include those where:[25]

... the executor was of bad character; where the executor has neglected her duties; where the executor has intermeddled in the estate and refused to take a grant; where the executor was absent abroad; where the executor was suffering from ill health; where the executor was of unsound mind; where the executor was not competent to take probate; where the executor had disappeared; and where the estate was insolvent.

55 In Re Arklie (No. 2), I made orders passing over the named executors in a will and appointed State Trustees in their place.[26] I observed that, 'although it is a serious matter to pass over an executor named by a deceased, the power of the Court to do so is well established'.[27] After setting out the recognised circumstances where executors have been passed over referred to by Besanko J in Re Crane, I stated that:[28]

These examples are not exhaustive and do not limit the grounds upon which a named executor may be passed over. In a number of cases, named executors have been passed over in favour of an independent person or the Public Trustee because the relationship between the named executors has deteriorated "to the point where there is no realistic expectation that they will be able to work together in the interests of the estate". ...

56 In the circumstances of that case, I concluded that:[29]

... the relationship between the plaintiffs and the defendant has deteriorated to a point where the degree of dysfunction and acrimony between them is such that there is no realistic expectation that they will be able to work together in the best interests of the deceased's estate. This characterisation, as I have explained in my review of the authorities, constitutes circumstances of a sufficiently special character which warrant the Court taking the serious step of passing over the plaintiffs and the defendant as executrices of the will and granting letters of administration with the will annexed to State Trustees.

57 More recently in Re Boglis,[30] McMillan J explicitly addressed the Court's power to pass over a named executor of a will as follows:[31]

Prima facie, a person nominated as executor by a testator is entitled to a grant of probate.[32] However, the Court has both statutory and inherent power to pass over a named executor and grant the right to administer an estate to another person if this is necessary for the due and proper administration of the estate.[33] The statutory power is found in s 15 of the Administration and Probate Act 1958 (Vic), which provides that the Court may order an executor of a will who neglects to prove the will, within six weeks of the date of death, to show cause why he or she should not prove the will or alternatively renounce probate thereof. The power to pass over an executor has long been recognised as part of the Court's inherent jurisdiction concerning the administration of deceased estates.[34]

58 The above authorities provide clear support for the conclusion that the Court has power to order named executors of a will to be passed over as executors of a deceased's estate. However, given that the question of the Court's power to make such orders and to grant the right to administer the estate to another person where that is required for the due and proper administration of the estate did not appear to be in issue in any of those cases, and in light of Mr Coffey's extensive submissions on this issue, it is appropriate to consider the issue from first principles. It is necessary to commence by examining the relevant legislative history.

59 The 'Supreme Court of the Colony of Victoria' was established in 1852 with the passage of An Act to make provision for the better Administration of Justice in the Colony of Victoria (the 1852 Act).[35] Section XV of the 1852 Act conferred on the Court ecclesiastical jurisdiction, including over probate.[36]

60 Over the next hundred years, the 1852 Act was amended numerous times, repealed by the Supreme Court Act 1890, which itself was amended numerous times, and eventually replaced by the Supreme Court Act 1958 (the 1958 Act). Throughout this period, both acts retained a provision equivalent to s XV of the 1852 Act providing for the Court's ecclesiastical, and then, probate jurisdiction. As to the latter, the Court of Probate Act 1857 removed the testamentary jurisdiction of the Ecclesiastical and other English courts and granted it to a 'Court of Probate'.[37]

61 Before its repeal in 1986, the equivalent provision to s XV of the 1852 Act in the 1958 Act was s 17, which relevantly provided as follows:[38]

The Court shall have probate jurisdiction within Victoria ... and shall have power and authority to grant probate under its seal of the last will of any person who dies leaving real or personal estate within Victoria and to commit letters of administration under its seal of all the real and personal estate whatsoever within Victoria of any person who dies intestate and to commit letters of administration under its seal with the will annexed of all the real and personal estate whatsoever within Victoria of any person who has made a will without having named an executor thereof or without having named an executor thereof resident within Victoria or where the executor being duly cited does not appear and sue forth probate thereof, with reservation nevertheless in the first of the two last-mentioned cases to revoke such letters of administration and to grant probate of the said will to the executor therein named when he duly appears and sues forth such probate. And shall also have all such powers and authorities in respect of such jurisdiction as are given to the Court by any Act in force in Victoria at the time of the commencement of this Act. And such letters of administration shall be committed by the Court to any person whether of kin to or a creditor of the person so dying as aforesaid or not as to the Court seems meet. ...

62 Section 85(1) of the Constitution Act 1975 provides that the Court has unlimited jurisdiction_._ When enacted, s 85(2) of the Constitution Act 1975 also provided as follows:

The Court and the Judges of the Court shall have and may exercise such jurisdictions powers and authorities as were had and exercised by any of the superior Courts in England or the judges thereof or by the Lord High Chancellor of England including the jurisdictional powers and authorities in relation to probate and matrimonial cases and administration of assets at or before the commencement of Act No. 502.

Act No. 502 was the 'An Act to erect a new Court for the Trial of Offences, to establish uniformity of venue in Civil and Criminal Judicature, and to amend the practice and procedure of Courts of Criminal Jurisdiction 1874' and commenced on 4 January 1875.

63 The 1958 Act and s 85(2) of the Constitution Act 1975 were repealed by the Supreme Court Act 1986 which also substituted a new s 85(3) in the Constitution Act 1975. Importantly, s 85(3) provides that the Court:

has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.

64 Giving effect to the terms of this provision, it is apparent from the above legislative history that, immediately before the commencement of the Supreme Court Act 1986, the Court's jurisdiction and powers included the probate jurisdiction conferred by s 17 of the 1958 Act and, more generally by operation of s 85(2), those jurisdictions, powers and authorities of the superior Courts of England as at or before 1874, including those in relation to probate.

65 The judgment of Sir J. Hannen In the Goods of Samson,[39] delivered on 11 March 1873, confirms that the powers of the Court of Probate included a power to pass over an executor in an appropriate case. In that case, one of the deceased's six children brought an application to pass over one of the two children her mother had named as executor in her will. Her grounds for the application were the defendant's absence from the jurisdiction and that he had left 'in embarrassed circumstances, and without having paid his debts, and generally that he was not a fit and proper person to be entrusted with the estate of the deceased.'[40] Upon considering s 73 of the Court of Probate Act, under which the application was brought, Sir J. Hannen considered that, further to the absence of an executor or badness of his character, 'there must be superadded a necessity or convenience that such person should not be allowed to act.'[41] Were this requirement met, he considered that s 73 'gives me power, where the executor is resident out of the country, if I think he is, by reason of his position there or his bad character, unfitted to act, to exercise a discretion, and refuse him the appointment.'[42]

66 The power to pass over an executor under s 73 of the Court of Probate Act 1857 was later confirmed In the Estate of Potticary[43] and in Leguia; Ex parte; In the Estate of Ashworth,[44] where the Court of Probate exercised its inherent powers and jurisdiction to pass over an executor who had taken no steps to obtain probate and who had left the jurisdiction.

67 Under the Court's probate jurisdiction established by s 17 of the 1958 Act,[45] the Court had express power to grant probate and letters of administration. Significantly, s 17 included the provision that 'such letters of administration shall be committed by the Court to any person whether of kin to or a creditor of the person so dying as aforesaid or not as to the Court seems meet'.

68 In accordance with s 85(3) of the Constitution Act 1975, the Court has the same jurisdiction, powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986. The forgoing analysis of the relevant legislative history demonstrates that, at that time (and accordingly now), the Court had (and has) the power in an appropriate case to pass over an executor named in a will and to grant letters of administration with the will annexed to any person.

69 I also respectfully agree with the observations and analysis of Derham AsJ in Re Munro set out in [53] above that the power to pass over an executor is within the Court's inherent power necessary for the effective exercise of the probate jurisdiction granted to it.

70 Although it does not expressly refer to passing over, s 15 of the A&P Act is a further source of power for the Court to pass over an executor. As is relevant to the present matter, the rather antiquated terms of the section[46] may be distilled and expressed as follows:

Where an executor named in a will neglects to prove the will or renounce probate within six weeks from the testator's death, if upon application the executor does not show cause why they should not prove the will, or renounce probate, or why administration with such will annexed should not be granted to the applicant, the Court may make orders "upon such executor ... to bring such will into court and make such order in the premises and as to costs as appears just and the Court may grant administration of the estate to such applicant".

71 Thus, in the circumstances so described, s 15 contemplates that the Court may pass over an executor named in a will by granting administration to the applicant. Further, the power conferred on the Court to make 'such order in the premises ... as appears just' is sufficiently broad to enable the Court in an appropriate case to pass over an executor named in a will and make a grant of administration to a third party.

72 This approach to the construction of s 15 is supported by the judgment of Gowans J in Re Giggins,[47] the facts of which have some similarities with the present matter. The deceased died appointing four executors, who all subsequently intermeddled in the estate. The executors did not agree as to what should go in the inventory. Two of the executors then issued a summons under s 15 seeking orders that the other two renounce. After examining the history of s 15, his Honour summarised the position as follows:[48]

It appears from this history that the form of the section has been substantially changed and expanded from time to time, so that its terms cannot be regarded as restricted in their operation by the section's original purpose, or its purpose at any time when it was in a different form. It comes down to the language used in the provision as it now is. As I have said, its language is wide enough to cover executors as applicants seeking relief against executors withholding possession of the will. I think its language is equally wide enough to allow executors as applicants to seek relief against other executors who neglect to prove or renounce. ...

If, in the present case, the summons directed to the respondents as two of the executors named in the will had proceeded to call upon them to appear upon the application of the other two executors to show cause why they should not prove the will or renounce probate thereof, it would, in my opinion, have conformed to the language of the section and be within its operation. If cause were not shown, it would be open to the Court to "make such order in the premises...as appears just", and this would include, subject to compliance with relevant requirements, a grant of probate to the applicants, with or without leave reserved or other qualification as the circumstances might require. ...

73 For the above reasons, the answer to the question posed by Issue 1 is 'yes'.

If Issue 1 is answered in the affirmative, whether the power to pass over executors should be exercised by the Court ordering that the plaintiff and the first defendant, or solely the plaintiff, be passed over as executors of the estate of Joan Jackman Coffey?

75 As I have noted earlier, since May 2019 Mrs O'Halloran's position in this proceeding has been that both she and Mr Coffey should be passed over as executors of the deceased's estate and an independent administrator appointed in their stead. Given Mrs O'Halloran's acceptance that she should be passed over as executor, the focus of the controversy in relation to Issue 2 is whether Mr Coffey should be passed over.

76 Mrs O'Halloran advanced four grounds as to why there existed circumstances of a sufficiently special character to warrant the Court exercising its power to pass over Mr Coffey:

(a) the executorial duties of the deceased's estate have been neglected;

(b) Mr Coffey and Mrs O'Halloran remain in ongoing dispute about important matters relating to the deceased's estate;

(c) both Mr Coffey and Mrs O'Halloran allege that the other is conflicted in their role as executor; and

(d) Mr Coffey is actually conflicted between his responsibilities as executor and his interest as a residuary beneficiary.

Mrs O'Halloran also submitted that, although not determinative, Mr Coffey's character was also a factor which warranted the exercise of the power to pass over an executor and to appoint an independent administrator.

77 The central proposition upon which Mrs O'Halloran contended that Mr Coffey had neglected his executorial duties was that a grant of probate had not been obtained in respect of the deceased's estate, even though almost eight years had elapsed since her death in 2014. Although Mrs O'Halloran signed an application for a grant in June 2014 prepared by Mr Blanch, Mr Coffey had refused to sign that application. Mr Coffey's evidence was that he refused to do so on the basis that, in his view, the inventory of assets and liabilities prepared by Mr Blanch was inaccurate and because he did not have certain information about the O'Halloran partnership which he considered was necessary to confirm the accuracy of the inventory.

78 More generally, Mrs O'Halloran also relied on the fact, established on the evidence, that the deceased's estate has remained largely unadministered, despite the lengthy period since the deceased's death. For example, the trusts provided for by cl 5(a) of the Will[49] had not been established, and no distributions had been made to the residuary beneficiaries. She also relied on the fact, also established on the evidence, that, since about 2015, Mr Coffey had not engaged a lawyer or accountant or sought any professional advice in relation to the deceased's estate. Mr Wald, who has acted as the accountant for the estate since the deceased's death, gave unchallenged evidence, which I accept, that Mr Coffey has not asked him any questions about the administration of the deceased's estate and has not queried or approached him about any of the tax returns or annual financial statements that he has prepared for the estate.

79 Mrs O'Halloran submitted that the administration of the deceased's estate was characterised by conflict and acrimony. This was manifest from the inability of Mrs O'Halloran and Mr Coffey to agree on an inventory of assets and liabilities, and from the making of various claims by each of them to the effect that the other was conflicted, to which I refer below.

80 A further locus of this disputation to which Mrs O'Halloran referred, and which is established on the evidence, concerned the inability of Mrs O'Halloran and Mr Coffey to agree on the particular 'plant and equipment' which formed part of the 'family farming operations'. This question is of importance because property within this description is the subject of a specific bequest by the deceased to Mrs O'Halloran.[50] Mr Coffey has refused Mrs O'Halloran permission to remove plant and equipment located on Tampa's property which Mrs O'Halloran claims was part of the family farming operations.

81 Mr Coffey claims that Mrs O'Halloran is conflicted in her role as executor of the deceased's estate because the O'Halloran partnership, of which she is a partner, owes debts of approximately $2.175 million and $646,844 to the deceased's estate.[51] Mrs O'Halloran denies that the partnership is indebted to the deceased's estate in these amounts, or at all.

82 The making of these claims also gives rise to a conflict between Mr Coffey's personal interests and his duties as executor of the deceased estate because, if true, they would have the effect of increasing the value of the residuary estate to which he and the other residuary beneficiaries would benefit.

83 The summons filed by Mr Coffey dated 12 August 2021 commences with this allegation:

Joan Jackman Coffey's former attorney ... Ruth Stanislaus O'Halloran ... held multiple conflicting roles, concealed the accounts, accepted gifts with a value in excess of $1 million and transferred over $320,000 to the BG & RS O'Halloran partnership while attributing large unprecedented losses to Joan Jackman Coffey (deceased). ...

84 Mrs O'Halloran also alleges that a number of conflicts have arisen between Mr Coffey's duties as an executor and his other interests.

85 The first issue concerns the dispute over which plant and equipment falls within clause 4(a) of the Will by which plant and equipment is gifted to Mrs O'Halloran. To the extent that items of plant and equipment do not fall within that clause, they will go into the residuary estate in which Mr Coffey will benefit.

86 The second issue concerns a part of the Coffey family farm holdings known as the 'Kewell Park Homestead'. Tampa, of which Mr Coffey is secretary and over which he claims he has 'reasonable influence', is the proprietor of that property. It would appear that many items of plant and equipment belonging to the deceased's estate are located on that property.

87 On 13 August 2014, Mr Coffey on behalf of Tampa sent Mrs O'Halloran a letter which stated that 'the Executors' of the deceased's estate were prohibited from entry onto the Kewell Park Homestead unless prior written authorisation was obtained from Tampa and 'the prescribed entry fee has been paid'. On 21 March 2015, Mr M Shanaughan, described as a director of Tampa, notified Mrs O'Halloran and Mr Coffey as executors of the estate that, for the period from 30 September 2014, Tampa would charge the estate 'a $0.10 per kilogram per week storage fee with a minimum fee of $0.50 per item per week'. Mr Coffey confirmed in his evidence to the Court that Tampa was seeking payment of storage fees from the estate.

88 The third issue concerns an allegation by Mrs O'Halloran that, in November 2013, Mr Coffey, without authorisation, withdrew approximately $16,900 from a bank account held by the sheep partnership. The deceased was one of the partners in the sheep partnership.[52] In May 2014, Mrs O'Halloran requested that Mr Coffey refund this amount to the estate. That has not occurred. It is submitted that this is a matter which requires investigation and about which Mr Coffey is self-evidently conflicted.

89 The fourth issue which Mrs O'Halloran submits requires investigation, and about which Mr Coffey is said to be fundamentally conflicted, concerns an informal land swap arrangement in relation to specific parcels of land within the broader Coffey farm holdings. In summary, the deceased gave permission for Tampa to conduct farming operations on a particular parcel of her land, and Tampa correspondingly gave permission for the deceased to conduct farming operations on a parcel of land of which it was the proprietor. Mrs O'Halloran's evidence was that the weather conditions of recent years have benefitted the yields on the estate land which have continued to be cropped by Tampa. Mrs O'Halloran and Mr Coffey both expressed a desire to cease the land swap arrangement, but have been unable to reach an agreement for how this is to occur. It is submitted that Mr Coffey is conflicted to the extent that there may need to be adjustments as between the estate and Tampa for the benefits of cropping the estate land since the death of the deceased.

90 The fifth issue concerns a dispute between Mr Coffey and Mrs O'Halloran regarding wages alleged to be owed by the sheep partnership to the O'Halloran partnership. As I have noted, the deceased was one of the partners in the sheep partnership. Mrs O'Halloran's evidence was that the sheep partnership owed $320,000 to the O'Halloran partnership for work done between 1986-2014 pursuant to a partnership agreement entered into in or around 1982-1983. Mr Coffey disputes the existence of such an agreement and any practice of paying wages to partners within the partnership. It was submitted that this is a further example of Mr Coffey's conflict of interest insofar as this conflict relates to moneys that are either payable from the estate (to the O'Halloran partnership) for unpaid wages (or to the estate from the O'Halloran partnership for wrongly paid wages, as Mr Coffey appeared to contend).

91 Mrs O'Halloran relied on the fact that, in 2000, Mr Coffey pleaded guilty to a charge of causing grievous bodily harm in relation to an incident in 1999.

92 In his submissions, Mr Coffey did not separately address the above grounds advanced by Mrs O'Halloran as to why he should be passed over. He adopted a discursive approach which I have sought to summarise below.

93 It was Mr Coffey's evidence, based on his review of the profit and loss statements for the sheep partnership between 2007 and 2014, that they revealed various 'anomalies'. In order to take account of those anomalies, he estimated the deceased's value in the partnership as about $380,000.

94 Mr Coffey submitted that, because the only paragraph in the originating motion which was 'functional' was that which sought an order that Mrs O'Halloran be entitled to prove the Will, the originating motion was to be viewed as an application for a grant of probate.

95 Mr Coffey accepted that executors have serious obligations and duties to perform. He submitted that an executor wishing to avoid those obligations has the right to renounce probate. He submitted that, in this proceeding, Mrs O'Halloran was approaching the Court to prevent him from performing his duties. He submitted that the Court should not be burdened by executors demanding to be relieved of their duty while deliberately obstructing others from doing theirs. He submitted that the claimed passing over of an executor was nothing less than challenging a will to avoid a testator's wishes. Passing over all of the remaining executors amounted to usurping the testator's last will and testament.

96 Mr Coffey submitted that the essence of the underlying disputes between he and Mrs O'Halloran concerned the refusal of the O'Halloran partnership to provide access to the deceased's financial records. He took issue with Mrs O'Halloran's claimed failure to respond to numerous requests by him for information relating to the deceased and the sheep partnership.

97 Mr Coffey also submitted that the core issue and main cause of contention was the lack of a verifiable inventory which had caused an impasse and a five year delay. He submitted that Mrs O'Halloran had failed to respond in any way to the revised 2015 inventory which he had prepared. He submitted that he had spent five years trying to obtain an accurate and verifiable inventory, but that there were numerous accounting anomalies and conflicts of interest between Mrs O'Halloran and the deceased's estate to overcome. He submitted that he and the other beneficiaries had provided Mrs O'Halloran with every opportunity to properly address the matters raised in the revised inventory. It was Mrs O'Halloran, not him, who did not respond to his inventory until 10 July 2019, and who was the main obstacle to finalising an inventory. He referred to her 'obstructionist, unresponsive and uncooperative manner' which had delayed the application for probate for five years. He submitted that the problem would not go away with the appointment of an independent administrator and that, 'whoever takes the estate forward needs to understand that the plaintiff is the problem and I and the 90% beneficiaries are the good guys'. He submitted that he deserved the chance to honestly and diligently execute his mother's will.

98 Mr Coffey specifically denied that there was any conflict of interest between his duties as an executor of the deceased's estate and his other interests.

99 Mr Coffey submitted that, if he was passed over, 90% of the beneficiaries would lose any influence and control over the assets left to them by the deceased. He submitted that he had done nothing wrong and that passing over was an expensive option that was not in the beneficiaries' best interests. He submitted that five of the beneficiaries did not want him to be passed over.

100 In Re Crane, Besanko J considered an application to pass over an executor in circumstances where, shortly before the testator's death and when the testator was ill, he purported to transfer to the person appointed as executor two substantial assets for relatively nominal consideration. Besanko J identified two general principles which will guide a Court in the exercise of its jurisdiction to pass over an executor, with which I respectfully agree:[53]

... First, it is clearly established that a Court will not readily pass over a named executor and, in general, a person who is named as executor by a testator is entitled to a grant of probate. Section 67 of the Testamentary Causes Act refers to "special circumstances" and the jurisdiction to pass over an executor is properly described as a limited jurisdiction. Secondly, when a court does exercise the jurisdiction it does so having regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate. ...

101 Justice Besanko identified the following circumstances in which the Court of Probate has decided in a variety of English cases to pass over a named executor:[54]

1. The executor was of bad character, had been convicted of manslaughter in relation to the death of the testator and was in prison.
2. The executor had neglected his duties.
3. The executor had intermeddled in the estate and refused to take a grant.
4. The executor was absent abroad.
5. The executor was suffering from ill-health.

6. The executor was of unsound mind.

1. The executor was not competent to take probate.

8. The executor had disappeared.

1. The estate was insolvent.

102 In the case before him, Besanko J ordered that the executor be passed over because he considered that the circumstances surrounding the disposition of the three assets before the testator's death required 'the most careful investigation'.[55] His Honour reasoned as follows:[56]

In considering whether this is an appropriate case to exercise the jurisdiction to pass over Kevin, I must have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate. That is the guiding principle. I must also recognise that the jurisdiction is limited and that, in general, Kevin, as a person who is named as executor by the testator, is entitled to a grant of probate. I also recognise that, in the ordinary case, a potential conflict of interest will not be sufficient to justify the exercise of the jurisdiction. As Windeyer J observed in Uniting Church in Australia Property Trust (NSW) v Millane (above), not infrequently an executor will have some conflict, such as being a debtor to the estate. However, in my opinion, this is a different case (from that of an executor who has some conflict by reason of being a debtor to the estate). Kevin has made it clear that he maintains that the transactions involving the Mount Barker Shops and the caravan are legally effective and that he owes no money to the estate. There is every reason to think that he will continue to maintain that position until a Court determines otherwise. If made an executor, I think that it can be said with a high level of confidence that he will not consent to the estate asserting rights in relation to the three assets. ...

103 In Re Arklie (No. 2), I noted that the list of cases where an executor had been passed over referred to by Besanko J in Re Crane was not exhaustive and did not limit the grounds upon which a named executor may be passed over.[57] I stated that:[58]

In a number of cases, named executors have been passed over in favour of an independent person or the Public Trustee because the relationship between the named executors has deteriorated "to the point where there is no realistic expectation that they will be able to work together in the interests of the estate".[59] These cases helpfully illustrate the application of passing over principles where there is sustained and irreconcilable conflict between named executors.

104 In the circumstances of Re Arklie (No. 2), I concluded that there were circumstances of a sufficiently special character which warranted the Court taking the serious step of passing over all three executors of a deceased's estate.[60] Those circumstances were the existence of entrenched dysfunction and acrimony such that there was no realistic expectation that the executors would be able to work together in the best interests of the deceased's estate.[61] Their continued appointment jeopardised the due and proper administration of the deceased's estate and was not in the best interests of the beneficiaries.[62]

105 The above principles guide the manner in which the Court's power to pass over an executor is to be exercised.

106 While mindful of the limited nature of the Court's jurisdiction to pass over an executor, I am nonetheless amply satisfied on the evidence before me that the due and proper administration of the deceased's estate and the interests of all of the persons beneficially entitled to it warrant both Mrs O'Halloran and Mr Coffey being passed over as executors.

107 The foremost matter on which this conclusion rests is the fact that an application for a grant of probate has not been made in the nine years since the deceased's death. This constitutes a profound failure by Mrs O'Halloran and Mr Coffey to discharge one of their essential responsibilities as executors.

108 Section 49 of the A&P Act codifies what is known as an 'executor's year', being the concept that a year is a reasonable time within which an executor should collect a deceased's assets and pay any debts.[63] In Re Thomas; Anderson v Brooks,[64] McMillan J considered the principle of an executor's year in the context of an application to compel the establishment of a trust and remove the trustee who was also the executor of the estate. Her Honour emphasised that the one year period is 'only an indication, and each case must turn upon its own facts by reference to whether delay in the administration of the estate had unduly impacted the welfare of the beneficiaries'[65] and referred to the following articulation of the principle of the executor's year of the by Page Wood LJ in Grayburn v Clarkson:[66]

There is no fixed rule that conversion must take place by the end of the year, but that is the prima facie rule, and that executors who do not convert by that time must shew some reason why they did not do so, and, where the question is distinctly and fairly raised upon the pleadings, there is an onus thrown on the executors to justify the delay.

109 An application for a grant of probate has not been filed in relation to the Will because, as the executors of the deceased's estate, Mrs O'Halloran and Mr Coffey have been unable to agree on the contents of an inventory of the deceased's assets and liabilities. The extent of their disagreement is very significant and entrenched. Despite each having prepared or approved proposed inventories which they provided to the other for review and which, in the case of Mrs O'Halloran, was further revised and prepared by Mr Blanch by reference to the deceased's long-term accountant Mr Wald, there remained a difference between them of approximately $1.8 million in relation to the estate's assets, and approximately $200,000 in relation to its liabilities.[67] This critical and significant difference underlines the need for an inventory to be prepared by an independent person who is capable of impartially assessing the value of the deceased's estate.

110 I reject Mr Coffey's attempt to fix Mrs O'Halloran with responsibility for the failure to finalise an inventory of assets and liabilities. Mrs O'Halloran has been willing to, and in fact did, sign an inventory prepared by a legal practitioner by reference to information provided by the deceased's accountant. There is no evidence that the inventory prepared by Mr Coffey was prepared with the benefit of accounting advice, and there is no suggestion that Mr Coffey holds any qualifications in law or accounting.

111 In providing Mr Coffey with a revised draft inventory, it is also relevant to note that Mr Blanch expressly informed Mr Coffey that it was possible to finalise an inventory on the basis that it included notes recording that certain matters were in dispute. Mr Coffey was well aware of this, but took no action to seek to resolve matters by adopting such a pragmatic approach.

112 Mr Coffey's claim that Mrs O'Halloran did not, until 2019, provide any response to the revised inventory which he prepared is 2015 is based on an artificial portrayal of the facts. In the context of the extensive disputes about the administration of the deceased's estate, including the finalisation of an inventory in 2014 and 2015, it should have been reasonably apparent from the fact that Mrs O'Halloran did not sign the inventory provided by Mr Coffey that she did not agree with its contents. Insofar as Mr Coffey entertained any uncertainty about Mrs O'Halloran's position, it must have been dispelled in October 2017 when Mr Blanch sent a letter to both of them in response to 'recent correspondence' and in which he commented on the administration of the estate to date. Mr Blanch referred to Mr Coffey being 'unhappy' with the inventory which he, Mr Blanch, had prepared and repeated his view that the inventory he had prepared was 'correct and accurate and should be proceeded with'. Mr Blanch also re-stated his earlier criticism of the contents of the inventory prepared by Mr Coffey as follows:

You should be aware that the inventory of assets is required to set out the details of the deceased's assets as at the date of death, and events that have happened in the deceased's business affairs prior to date of death are what they are and not what they might have been if different decisions had been taken. ...

113 This statement by Mr Blanch is unexceptionable. Mr Coffey's insistence on advancing an inventory of assets and liabilities which was not prepared consistently with such an approach, as stated by Mr Blanch whose evidence I accept, demonstrates his unsuitability in continuing to act as an executor. It is also an example of the 'obstructionist, unresponsive and uncooperative manner' in which he, as distinct from Mrs O'Halloran, has approached his role as executor.

114 A further example of this is Mr Coffey's repeated demands for Mrs O'Halloran to provide him with information relating to the O'Halloran partnership. Any investigations which Mr Coffey considered should be undertaken about the propriety of Mrs O'Halloran's dealings with the deceased before her death should not have delayed the finalisation of an inventory of the deceased's assets and liabilities as at the date of her death. What is required is 'an inventory of assets of the estate of the testator in Victoria and elsewhere setting out the gross value of all known assets distinguishing between real and personal property and a statement of the known liabilities of the testator as at the date of death'.[68]

115 Given that Mrs O'Halloran is a beneficiary of the deceased's estate, I am readily satisfied that Mr Coffey is most unlikely to bring an impartial or independent mind to the discharge of his duties as executor. It was apparent from his submissions that he has a very low estimation of Mrs O'Halloran and that his views about her perceived failings are deep-seated and strongly held. He variously expressed the opinion that Mrs O'Halloran was not fit to hold office as executor; that she had 'stripped' deceased's assets in her lifetime as the deceased's 'former corrupt attorney' and that, since her death, she has wrongly taken the deceased's assets and possessions. He described Mrs O'Halloran's affidavits filed in the proceeding as 'a calumny and vilification' of him, their contents being 'unconvincing to the point of being perjury'. According to Mr Coffey, Mrs O'Halloran's affidavits 'reveal an alarming propensity [for Mrs O'Halloran] to deceive, insinuate, draw false conclusions and evade the truth'. He submitted that, 'whoever takes the estate forward needs to understand that the plaintiff is the problem and I and the 90% beneficiaries are the good guys'. Mr Coffey's acceptance that he did not have a 'workable relationship' with Mrs O'Halloran is entirely unsurprising.

116 Underpinning Mr Coffey's inability to bring a dispassionate perspective to the discharge of his functions as executor is the array of conflicting interests which arise in connection with his administration of the deceased's estate. Although Mr Coffey denied that he was conflicted in any way, his denials are untenable. Of particular significance is his claim that the O'Halloran partnership owes debts of $2.175 million dollars and $646,844 to the deceased's estate. As he accepted in his evidence, these claims have a significant effect on the value of the estate and, in turn, his entitlement as a residuary beneficiary. Like the executor in Re Crane, given what has transpired since the deceased's death, there is every reason to think that he will continue to maintain this position until a Court determines otherwise.

117 It is also necessary to take into account the other five alleged conflicts of interests referred to in [85]-[90] above. If the underlying allegations made by Mrs O'Halloran there set out are true, being a matter which it is unnecessary for me to determine, there would necessarily arise a conflict between Mr Coffey's duties as an executor and his personal interests. That is most vividly illustrated in relation to the controversy over the Kewell Park Homestead where Mr Coffey (on behalf of Tampa) made a written demand of himself (as executor of the deceased's estate) and Mrs O'Halloran not to enter the property without prior written authorisation and payment of a prescribed entry fee. The various claims made by Mrs O'Halloran require careful investigation. Given Mr Coffey's various personal interests and the animus with which he regards Mrs O'Halloran, Mr Coffey is strikingly ill-suited to that task.

118 Collectively, the above matters indicate that Mr Coffey is hopelessly conflicted between, on the one hand, his role as an executor and, on the other, his interests as a residuary beneficiary and his interests in relation to Tampa. The case is far removed from the ordinary case where an executor may have a potential conflict of interest as a beneficiary.

119 It is apparent from all the evidence that the administration of the deceased's estate has effectively become paralysed under the weight of Mrs O'Halloran and Mr Coffey's dysfunctional and conflictual relations and a plethora of actual and alleged conflicts of interest. I reject the substance of Mr Coffey's case that responsibility for this state of affairs rests overwhelmingly with Mrs O'Halloran; to the contrary, Mr Coffey carries at least a high degree of culpability for this situation for the reasons I have given.

120 Mr Coffey submitted that five of the beneficiaries did not want him to be passed over. That submission is not supported by the evidence; although it is apparent that Michael and Frances Coffey opposed him being passed over, there is no evidence about the position of Janice and Edwina Coffey on that question. In any event, for the reasons I have given, I am satisfied that the interests of all of the persons beneficially entitled under the deceased's estate, and the due and proper administration of the deceased's estate, is best served by exercising the Court's power to pass over executors by ordering that both Mrs O'Halloran and Mr Coffey be passed over as the executors of the deceased's estate. The question posed by Issue 2 is answered accordingly.

If the plaintiff and the first defendant are passed over as executors of the estate of Joan Jackman Coffey, whether an independent person should be appointed to administer the estate?

122 Mrs O'Halloran's position on Issue 3 was that, if she and Mr Coffey were passed over as executors, an independent person should be appointed to administer the estate. She initially identified a particular solicitor to be appointed to that role, however that solicitor subsequently withdrew his consent for that appointment.

123 Mr Coffey initially proposed that his brother Michael Coffey and/or Rod Jones (who is the domestic partner of his sister Frances Coffey) would be suitable and competent administrators of the estate. In closing submissions, he appeared to also propose Frances Coffey as a suitable alternative administrator.

124 Mrs O'Halloran advanced three principal reasons as to why, in the event she and Mr Coffey were passed over, an independent administrator should be appointed.

125 First, Mrs O'Halloran submitted that there was considerable acrimony within the family. She contended that the level of acrimony was analogous to the situation in Re Arklie (No. 2), where the appointment of an independent administrator in place of two dysfunctional executors was warranted.

126 Secondly, Mrs O'Halloran submitted that the administrators proposed by Mr Coffey were inappropriate candidates to be appointed administrators of the estate. She relied upon Re Orloff (No 2) where Robson J stated that it would not be appropriate to appoint a person if they were liable to being passed over.[69] Those circumstances relevantly included where the person was absent abroad,[70] where they had insufficient management ability[71] and where they faced a hopeless conflict of interest.[72]

127 In relation to Michael Coffey, Mrs O'Halloran submitted that, having been instrumental in preparing the inventory upon which Mr Coffey sought to rely, Michael Coffey lacked the necessary impartiality to act as an unbiased administrator. I accept that the evidence establishes that Michael Coffey contested the accuracy of the inventory of assets and liabilities signed by Mrs O'Halloran and was involved in preparing an analysis upon which Mr Coffey relied in his claim that the O'Halloran partnership is in debt to the deceased's estate in the amount of $2.175 million. Michael Coffey also strongly agrees with Mr Coffey that Mrs O'Halloran has failed in her legal obligations to provide the information requested of her by Mr Coffey.

128 Further, Mrs O'Halloran emphasised that, as Michael Coffey accepted in cross-examination, he is neither a lawyer nor an accountant, has no training or experience in administering estates in Victoria and does not reside in Victoria, having lived in the United States since 1989.

129 In relation to Rod Jones, Mrs O'Halloran submitted that, although he does not have a direct interest in the deceased's estate, his partner Frances Coffey does, and that Frances Coffey's interest would be significantly enlarged were Mr Coffey's proposed inventory to be accepted. As a result, Mr Jones could not be expected to act impartially in the administration of the estate. I accept that the evidence established that Frances Coffey and Rod Jones were of a common voice with Michael Coffey in challenging the accuracy of the draft inventory of assets and liabilities signed by Mrs O'Halloran. Further, it was submitted that there was no evidence that Rod Jones had any training or experience in estate administration.

130 Thirdly, Mrs O'Halloran submitted that the deceased's estate is large and complex such that its proper administration would require management skills beyond those of a layperson.

131 It was established on the evidence that the deceased's estate owns multiple parcels of land and that the following matters need to be attended to in the management of the estate: the establishment and administration of two testamentary trusts; the management of share farming contracts (there presently being four different share-farming operations run on a year-by-year basis); an informal land swap agreement;[73] the retention or sale of various shares; the possible negotiation of leases with telecommunication providers; and the distribution of specific gifts, including the 'plant and equipment and movable items' referred to in cl 4(a) of the Will, the definition of which was in dispute and which Mr Coffey accepted was a contentious issue.

132 Mr Coffey repeated his submission which I have rejected that the wording of s 15 of the A&P Act makes it unlawful for the Court to grant administration to anyone other than an interested person or State Trustees. He contended that an interested person included a beneficiary of the estate, but not an independent administrator. He submitted that, if no beneficiary would assume the role of administrator, the beneficiaries had a right to choose their own administrator or ask the Court to choose one for them.

133 Mr Coffey also denied that there was any acrimony between the beneficiaries. He characterised the present state of affairs as 'basically three at least out of the six beneficiaries asking for information that is most likely held by BG & RS O'Halloran'.

134 Mr Coffey disagreed with the characterisation of the estate as 'complex'; he described it as 'a few parcels of land'. Although he acknowledged that an administrator may need assistance from a real estate agent to sell land, he submitted that the remaining skill sets required for the role were readily available, and noted that two of the administrators he had proposed had experience selling shares.

135 Although Mr Coffey did not explicitly take issue with the costs associated with of an independent administrator, I infer from various statements made by him during the trial and from his position regarding the earlier proposed appointment of a solicitor as an independent administrator that he also opposes that course on that ground.

136 The paralysis which has afflicted the administration of the deceased's estate must be overcome as a priority. In the circumstances of this case, an administrator will need at least two key attributes: professional expertise in administering estates commensurate with the complexities of the estate as outlined on behalf of Mrs O'Halloran, and a firmly independent disposition with which to navigate the strongly held positions of Mr Coffey and Mrs O'Halloran, and the other beneficiaries of the deceased's estate. Contrary to Mr Coffey's submissions, an administrator would also need to bring a dispassionate approach in light of the acrimony which has emerged over the deceased's estate. A professional administrator, such as a legal practitioner with experience in administering complex estates, is best placed to meet these requirements.

137 Although there is evidence before the Court that, in the event that both Mrs O'Halloran and Mr Coffey are passed over, all of the beneficiaries under the Will, except Mrs O'Halloran, support the appointment of Michael Coffey and/or Rod Jones as administrators of the deceased's estate, I have no confidence that any of the persons nominated by Mr Coffey would be able to administer the estate in accordance with law. None of them have any legal or accounting qualifications and none are demonstrably independent from the positions being asserted by Mrs O'Halloran and Mr Coffey. To the contrary, the evidence indicates that, at different times they have each supported Mr Coffey in his claims. They are, or are reasonably perceived as being, in Mr Coffey's 'camp'.

138 There are two further reasons why it would not be appropriate to appoint Michael Coffey as administrator of the deceased's estate. First, he is not resident in the jurisdiction, and has not been resident in the jurisdiction for many years. Secondly, I was unimpressed by his evidence to the Court. In his evidence, he appeared keen to repeat and assert many of the claims made by Mr Coffey in his case and at times was reluctant to respond to the most straightforward of questions.[74] I have no confidence that Michael Coffey would bring the necessary independence of mind and impartiality as an administrator of the deceased's estate.

139 It is accordingly appropriate that an independent person be appointed to administer the deceased's estate. Such a person will be able to act impartially and to ensure the due administration of the estate in the interests of all the beneficiaries.

140 The answer to the question posed by Issue 3 is accordingly yes.

141 The parties will be invited to provide proposed orders to give effect to these reasons for judgment.

[1] Who was also referred in material before the Court as 'Janiece'.

[2] Who is referred to as 'Mrs O'Halloran' in these reasons for judgment.

[3] Who is referred to as 'Mr Coffey' in these reasons for judgment.

[4] Although the revised inventory prepared by Mr Coffey contained the same amount of 'total' liabilities recorded in the revised inventory prepared by Mr Blanch, Mr Coffey included certain 'offsetting' amounts in his calculation of liabilities which resulted in total liabilities of approximately $100,000.

[5] [2018] VSC 747 ('Re Munro'). See further at [53]-[54].

[6] [2019] VSC 350 ('Re Arklie (No. 2)'). See further at [55]-[56].

[7] [2010] VSC 48; (2010) 24 VR 603 ('Re Orloff (No 2)').

[10] Unreported, Supreme Court of New South Wales, 4 September 1998 ('Rotman').

[15] LexisNexis Butterworths, Wills Probate and Administration Service Victoria, Vol 1 (at Service 57) [28,150].

[16] Constitution Act 1975 (Vic) s 85.

[17] A&P Act, particularly ss 6 and 34.

[18] Supreme Court Act 1986 (Vic) s 17.

[19] Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268, 280, [36].

[20] Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, 977 (Lord Diplock).

[21] NH v Director of Public Prosecutions for the State of South Australia [2016] HCA 33; (2016) 260 CLR 546, [69], referring to Master Jacob, 'The Inherent Jurisdiction of the Court' (1970) 23 Current Legal Problems 23, 27.

[22] Re Estate of Crane [2005] SASC 379; (2005) 93 SASR 198, [24] ('Re Crane'), citing In the Goods of William Loveday [1900] UKLawRpPro 13; [1900] P 154, 156, a case concerning the revocation of a grant.

[23] LexisNexis Butterworths, Wills Probate and Administration Service Victoria, Vol 1 (at Service 57) [28,150].

[24] Re Munro (n 5) [38]. And see Ashley JA in Monty Financial Services Ltd & Anor v Delmo [1996] VicRp 7; [1996] 1 VR 65 at 75.

[25] Re Munro (n 5) [38], omitting citations.

[30] [2022] VSC 309 ('Re Boglis').

[32] Evans v Tyler [1849] EngR 1120; (1849) 2 Rob Ecc 128, 131; [1849] EngR 1120; 163 ER 1266, 1267 (Sir Herbert Jenner Fust); Tsaknis v Lilburne [2010] WASC 152, [60]-[61] (EM Heenan J).

[34] See, eg, Re Swale [1960] SASR 391, 394 (Napier J); Re Smith (deceased) (1972) 2 SASR 477, 478-9 (Walters J); Re Crane (n 22) [15]-[30] (Besanko J); Re Munro (n 5) [35] (Derham AsJ).

[43] [1927] P 202.

[44] [1934] P 80.

[45] See [61] above.

[46] Set out in full in [35] above.

[47] [1969] VicRp 26; [1969] VR 208.

[49] Referred to in paragraph [10] above.

[50] Pursuant to cl 4(a) of the Will referred to in paragraph [10] above.

[51] See [20] above.

[52] See [5] above.

[57] Re Arklie (No. 2) (n 6) [12], referring to Woodley v Woodley (No 2) [2017] WASC 94, [51], citing Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152, [58].

[59] Woodley v Woodley (No 2) [2017] WASC 94, [48], citing Jurkiewicz v Jurkiewicz [2013] ACTSC 89 [13], [26]; In the Estate of Stuart (dec'd) [2009] SASC 399; (2009) 106 SASR 39 [25]; Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152, [70]-[72].

[63] Section 49 provides that 'subject to the foregoing provisions of this Act, a personal representative is not bound to distribute the estate of the deceased before the expiration of one year from the death'. It therefore expresses the concept of an 'executor's year' as a 'power to postpone distribution', rather than as a deadline within which an estate must be administered.

[64] [2020] VSC 60 ('Re Thomas').

[66] Ibid [39]; Grayburn v Clarkson [1868] UKLawRpCh 51; (1868) LR 3 Ch App 605, 606.

[67] See [20] above.

[68] Supreme Court (Administration and Probate) Rules 2014, r 2.04(2)(d)(iii).

[69] Re Orloff (No 2) (n 7), 615 [42].

[70] Re Arklie (n 6) [11(4)] citing Re Estate of Crane (n 22), [25] referred to in [55]-[56] above.

[73] See [89] above.

[74] For example, when asked whether he was aware that Mr Coffey and Mrs O'Halloran had been in dispute about the deceased's estate for many years, Michael Coffey initially responded in the negative, and then asked counsel to define what she meant by 'many years'. When counsel obliged by providing this unnecessary clarification, he provided an entirely non-responsive answer. It was only after I asked him to answer the question that he provided his answer, stating 'it's not a dispute'. I regard this as a disingenuous response given the events which have occurred between Mr Coffey and Mrs O'Halloran since their mother died in 2014, of which Michael Coffey must have had at least a general awareness.