Sharpe v Forbath [2000] VSC 282

3. An order that the defendant file with the court an account of his administration of the estate;

4. Such other orders or directions as the court deems appropriate;

10. The deceased referred to in the originating motion is Marie Charlotte Forbath. Mrs Forbath was the mother of the defendant, Andrew Louis Forbath, and the grandmother of the plaintiffs. The plaintiffs' mother, Marianne Sharpe, was the daughter of Mrs Forbath.

13. Marianne Sharpe died on 19 September 1997. Mrs Forbath died on 24 June 1998.

16. By her last will and testament dated 4 September 1970, Mrs Forbath appointed her son and daughter to be the executors of her estate. In that situation, as the defendant was his mother's surviving executor, it was his responsibility to make application for probate of his mother's will and estate.

19. By her will Mrs Forbath left her estate equally to her daughter and son as tenants in common in equal shares; see court file No. 6679 of 1999.

22. As a consequence of their mother's death, the plaintiffs inherited their late mother's half interest in the estate. According to the inventory filed by the defendant in support of his application for probate of his mother's estate, Mrs Forbath's assets consisted of the following property:

Consisting of a brick veneer unit of 7 rooms on Certificate of Title Volume 8845, Folio 199

42. On the face of it, one could not have had an easier estate to administer.

45. By 31 August 1999, the defendant had not lodged any application for probate of his mother's estate, despite repeated requests of him to do so by the plaintiffs' father, Ronald Sharpe, and the plaintiffs' solicitor.

48. That day the plaintiffs filed an application in the court pursuant to s.15 of the Administration and Probate Act 1958. That section reads:

"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."

52. The fact that the legislature has seen fit to fix the period at six weeks is some indication of the view it takes as to the speed with which such applications should be made.

55. The s.15 application came before me in the Practice Court on 4 November 1999. The defendant, who appeared before me in person, informed me that in October of that year he had lodged an application for probate but that it had not yet been granted. I adjourned the hearing of the s.15 application to 11 November in the expectation that by then probate may well have been granted to him. However, by 11 November probate still had not been granted and so I adjourned the further hearing of the s.15 application to 9 December 1999.

58. On 18 November 1999 probate of his mother's will and estate was granted to the defendant.

61. When the s.15 application came before me on 9 December, I dismissed the application but ordered that the defendant pay the plaintiffs' costs of the application. The reason the defendant gave at that time for his failure to apply for probate of his mother's will earlier than he had was that the plaintiffs' father had refused to hand over to him the Certificate of Title to his mother's unit and that it was necessary that he obtain that title before making an application for probate. In that regard the defendant relied upon the content of the following letter of 19 February 1999 written to him by the plaintiffs' father.

"Dear Andrew, Re estate of Mrs M C Forbath I have taken legal advice to confirm and protect the interests of my children, Caroline and David, who are beneficiaries under the terms of the Will of their grandmother, Mrs Forbath. As a substantial time has now passed since their grandmother's passing, they have a legal right to know the following from the Executor, i.e. Yourself: 1. What are you doing to settle the Estate and a Grant of Probate for the Will? 2. As you are also the occupant of the main asset of the Estate, what is happening to ensure that a proper rent is being paid into the Estate account, as is normally expected as part of the duties of the Executor. If this is not being done there is a clear case for conflict of interest and that you are negligent in protecting the estate for all beneficiaries. 3. You advised my children that you were considering challenging the distribution of the Estate. This is strange since it implies that you are intending to sue the Executor, i.e. sue yourself. In any case this action cannot take place until after there is a Grant of Probate. If the above information is not quickly forthcoming, you will be considered negligent in maintaining and executing the Estate. Thus there is a strong case for my children to appeal to Court and be granted the role of alternate Executors so they can proceed with the legal requirements. My children would prefer to see you get on with settling the estate as a proper Executor with good legal advice and that family harmony is restored without any bitterness. However if you do not undertake this action promptly, you stand to lose both control and financial return as additional legal expenses will be incurred, reducing the value of the Estate, in particular to yourself. Your share of the estate could be as high as $150,000 or more, so why risk reducing this. Also the longer you delay, the longer it will take for you to get your share. In addition you stand to lose interest on the money that your share could be earning right now (of the order of $15,000-20,000 per year or $300-$400 per week). Please let me know if I can be of assistance in settling the Estate. I am holding the title for the property which your mother asked me to look after to ensure that you executed the Estate properly. I will hand this over at the appropriate time after Grant of Probate. Yours sincerely, Ron Sharpe."

68. Following the grant of probate to the defendant, and on 23 December 1999, the plaintiffs' solicitor handed over the title in question to the defendant.

71. On 4 February 2000 the plaintiffs' solicitor telephoned the defendant to ascertain whether the defendant had lodged a transmission application in the Land Titles Office in respect of the unit, and whether he had taken any steps to sell the unit. The following is his account of that conversation as appearing in paragraph (13) of his affidavit sworn 19 April 2000.

"13. On Friday 4 February 2000 I had a telephone conversation with the defendant. I telephoned him at the number connected to the address at 3/42 Murphy Street, South Yarra, namely 9867 2641. The defendant told me that he was going to lodge the transfer at the Titles Office on 'Monday'. He told me that he had been in hospital and was recuperating but was fit now. He told me that he was going to write to me that day. He also told me that the flat needed some work to make it fit for sale. He told me that there needed to be some patching to a wall where there was a crack and that the wallpaper was peeling off in one of the bedrooms. I asked him how long it would be and he responded that it would be 'before the GST that's for sure'. He also promised me that the property would be on the market within 4 weeks 'for sure'."

75. When the defendant appeared before me again in person on Thursday last, he confirmed that that is what he had told the plaintiffs' solicitor on 4 February.

78. On 31 March 2000, the plaintiffs' solicitor caused a title search to be made in respect of the unit. It revealed that no transmission application had been lodged in the Land Titles Office in respect of the unit as at that date.

81. On 12 May 2000 the plaintiffs filed this proceeding in the court whereby they seek the orders to which I earlier referred. The basis on which the plaintiffs make their application is that, having obtained the grant of probate on 18 November 1999, in failing to lodge a transmission application and take steps to effect a sale of the unit since that date, the defendant has demonstrated that he is either refusing to act or is unfit to act in his office as executor of his late mother's estate.

84. In my opinion, that contention is well founded. The fact that the plaintiffs' father declined to hand over the Certificate of Title to the deceased's unit until such time as the defendant obtained a grant of probate was no basis for failing to make such an application. The defendant did not require the Certificate of Title to make the application. He knew where it was and knew that it would be handed over to him after the grant of probate was made, as in fact occurred. Nor has there been any justification for his failure to lodge the appropriate transmission application once the grant of probate was made to him or for his failure to effect a sale of the unit.

87. When the defendant appeared before me on Thursday, he told me that, as executor, it was for him to decide when to sell the unit. That may be so, but if an executor sits idle for an inordinate period of time without good cause, as the defendant has in this case, then the court will exercise the powers given to it by s.34 of the Act and remove him as executor. It is now almost two years since the defendant's mother died, yet, apart from belatedly obtaining a grant of probate of her will and estate, the defendant has done little or nothing in the way of administering her estate. In my opinion, that is totally unacceptable. To my mind it demonstrates that the defendant is simply being obstructive and refusing to act; alternatively, that he is unfit to act.

1. That the defendant be removed as executor of the estate of Marie Charlotte Forbath deceased pursuant to s.34 of the Administration and Probate Act 1958;

2. Subject to the performance of any requirement of the Registrar of Probates the plaintiffs, David James Sharpe and Caroline Anne Sharpe, be appointed as administrators of the estate of Marie Charlotte Forbath, deceased in place of the defendant;

3. By 4 p.m. On 20 June 2000 the defendant deliver to the Registrar of Probates the probate granted to him by the Registrar of Probates on 18 November 1999;

4. By 4 p.m. On 27 June 2000 the defendant deliver to the Registrar of Probates a sworn true and perfect inventory of the real and personal estate of the deceased and an account of the receipts and payments made by him to date in the administration of the estate of the deceased;

5. By 4 p.m. On 27 June 2000, the defendant deliver to the plaintiffs all property of the deceased and, in particular, the Certificate of Title in relation to the deceased's property situated at and known as Unit 3/42 Murphy Street, South Yarra in the State of Victoria;

6. Pursuant to s.51 of the Trustee Act 1958 all property of the deceased shall vest in the plaintiffs;

7. Within 48 hours of the making of this order the solicitors for the plaintiff deliver to the Registrar of Probates a copy of this order;

8. The plaintiffs' costs of this proceeding including all reserved costs be paid by the defendant.

101. I direct that this order be prepared by the solicitors for the plaintiff and brought to me for signature.

104. I shall reserve to the parties liberty to apply.