No. 4585 of 1999
- This is the return of an originating motion filed in the Court
by the plaintiffs Anthony John Coote, Douglas Gerald Burley and Annette
Jennifer Richards whereby the plaintiffs seek an order that the defendant Helen
Elizabeth Fysh be removed as the surviving executrix
of the will and estate of
Jasper Lloyd Coote deceased (the deceased), and certain consequential
orders.
- The following is a brief summary of the background to the
application.
- The deceased died on 24 October 1995. He was predeceased by
his wife Sarah Janet Coote who died on 13 July 1991.
- The deceased was survived by two sons and two daughters,
Anthony John Coote who was born on 11 August 1935, Peter Lloyd Coote who
was
born on 11 May 1941, Barbara Janet Burley who was born on 1 December 1938, and
the defendant who was born on 29 September 1943.
- The provisions in the deceased's will were such that because
his wife had predeceased him his estate passed to his four children
in equal
shares.
- By his will the deceased appointed his daughters to be joint
executors of his estate. Probate of the will was granted to the executors
on
16 January 1996.
- The deceased's son Peter Lloyd Coote died on 26 October 1997.
By his will he appointed the plaintiff Annette Jennifer Richards executor
and
sole beneficiary of his estate.
- The deceased'sdaughter, Barbara Janet Burley died on 14 August
1998. By her will she appointed Douglas Gerald Burley executor and
sole
beneficiary of her estate.
- The estate of the deceased consisted of Unit 1, 68 Dunloe
Avenue, Mont Albert North valued for probate purposes at $130,000, a sum
of
$5,996.86 in a Commonwealth Bank account and a debt of $10,000 owed to the
deceased by Anthony John Coote. The deceased's liabilities
only totalled
$205.20
- Since the grant of probate to the defendant and her now
deceased sister the beneficiaries of the deceased's estate and of more recent
times the beneficiaries of his deceased daughter's and sons' estates, have been
endeavouring to persuade the defendant to sell the
unit at Mont Albert North so
that the deceased's estate can be distributed. In that they have been
singularly unsuccessful.
- In mid 1966 the defendant moved into the unit and has remained
in the unit to the present time. She has not and does not pay rent
for the
unit although she claims, perhaps quite correctly, that she has expended
significant sums on the maintenance and upkeep of
the unit.
- There have been numerous attempts by the plaintiffs to
persuade the defendant to take appropriate steps to sell the unit including
the
holding of a lengthy roundtable conference on 26 April last. But all to no
avail.
- At every turn the defendant has raised obstacles in the path
of a disposition of the property and in my opinion has made totally
unreasonable demands on the plaintiffs not only in relation to the
administration of the deceased's estate but also in relation to
the
administration of her late mother's estate.
- An inkling of the defendant's behaviour in that regard is to
be gained from a perusal of Exhibit B to her affidavit sworn 9 May
1999 and by
the fact that since October 1996 the defendant has engaged five different
solicitors to act on her behalf.
- And so one has the situation where the administration of the
simplest of estates has not been completed more than three years since
the
grant of probate to the executors of the estate.
- In my opinion the situation in this case is such that it can
now properly be said that the defendant is unfit to act as executor
of the
estate or is incapable of doing so. In that regard see Monty Financial
Services Ltd. & Anor. v. Delmo [1996] VicRp 7; (1996) 1 V.R. 65.
- I make the following orders in the proceeding.
1. The plaintiffs are authorised to commence the proceeding by
originating motion in accordance with Form 5C of the Rules.
2. The requirements of Rule 5.03(1) and Rule 8.02 of the
General Rules of Civil Proceedings 1986 are dispensed with
3. (a) That pursuant to s.34 of the Administration and
Probate Act 1958 the defendant be removed as surviving executrix of the will
and estate of Jasper Lloyd Coote deceased.
(b) That Equity Trustees Limited be appointed as administrator
with the will annexed of the estate of the said deceased in place of
the
defendant.
4. The defendant forthwith deliver up to the custody of Equity
Trustees Limited the duplicate Certificate of Title to Unit 1, 68 Dunloe
Avenue, Mont Albert North being Certificate of Title Volume 9702 Folio
977.
5. The defendant pay the plaintiffs' costs of the proceeding
including any reserved costs.
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