Brito-Babapulle v Brito-Babapulle

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 02419

IN THE MATTER of an Application under s 34(1)b and/or s 34(1)(c) of the Administration and Probate Act 1958, ss 41, 45, 48, 50 and 51 of the Trustee Act 1958 and Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 and the inherent jurisdiction of the Court

and

IN THE MATTER of the Will and Estate of MARY BEATRICE KAMALA BRITO-BABAPULLE, deceased

BETWEEN:

ASHAN COLIN BERNARD BRITO-BABAPULLE (in his capacity as one of the executors of the estate of the late Mary Beatrice Kamala Brito-Babapulle, deceased and personally)	Plaintiff
v
TANIA ASHANTI BRITO-BABAPULLE (in her capacity as one of the executors of the estate of the late Mary Beatrice Kamala Brito‑Babapulle, deceased)	Defendant

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22, 23 and 24 May 2024
DATE OF JUDGMENT:	31 May 2024
CASE MAY BE CITED AS:	Brito-Babapulle v Brito-Babapulle
MEDIUM NEUTRAL CITATION:	[2024] VSC 281

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ADMINISTRATION AND PROBATE — Application by executor for removal of sibling co‑executor and trustee of mother’s deceased estate — Severe delay in administration of estate — Difficult relationship between siblings — Capacity of co-executor to focus on tasks — Tendency of co-executor to pursue peripheral issues — Prolix and oppressive correspondence — Plaintiff offering, if necessary, to be discharged to ensure smooth completion of administration of estate — Appointment of independent administrator and trustee — Directions to incoming administrator — Administration and Probate Act 1958 s 34(1) — Trustee Act 1958 s 48 — Supreme Court (General Civil Procedure) Rules 2015 r 54.02.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Shepherd	MST Lawyers
For the Defendant	The defendant was self-represented

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Issues for determination................................................................................................................... 3

Applicable legal principles.............................................................................................................. 6

Facts...................................................................................................................................................... 7

Uncontroversial background facts............................................................................................. 7
Relevant events overview............................................................................................................ 8
First period: October 2019 to March 2020.................................................................................. 8
Second period: March 2020 to June 2021................................................................................... 9
Third period: June 2021 to June 2022....................................................................................... 14
Fourth period: June 2022 to May 2024..................................................................................... 21

Consideration of the key delay issues raised by the parties................................................... 25

(1) Mr Brito’s query about whereabouts of proceeds from father’s estate......................... 25
(2) Investigation of parents’ financial affairs and whereabouts of records........................ 26
(3) Ms Brito’s claims for reimbursement................................................................................. 28
(4) Ms Brito’s claims for compensation for caring for the deceased.................................... 29
(5) Dealings with Mr Porritt...................................................................................................... 30
(6) Establishment of estate bank account................................................................................. 32
(7) Statement of estate liabilities............................................................................................... 33
(8) Interment of deceased’s remains in Sri Lanka.................................................................. 34
(9) Deceased’s jewellery............................................................................................................. 34
(10) Other questions posed by Ms Brito.................................................................................. 37
(11) Failure of mediation arrangements.................................................................................. 38
(12) Delay in making interim distribution to beneficiaries................................................... 38
(13) Dealings with the first accounting firm and preparation of tax return....................... 38
(14) Accusations against lawyers.............................................................................................. 39

Should the defendant be removed from her office as executor and trustee?....................... 39

Should the plaintiff’s agreement to be discharged from his office be accepted?............... 43

Should an independent practitioner be appointed to administer the estate?...................... 44

What (if any) other orders, advice or directions are needed?.................................................. 44

Conclusion......................................................................................................................................... 45

HIS HONOUR:

Introduction

The deceased left her estate to be distributed equally to her four children, and probate was granted to two of them.

Regrettably this litigation is between the sibling co-executors. It began a little over two years after probate was granted, and has by now run for nearly three years.

The plaintiff seeks the removal of his sister from her office as executor, claiming that she is unfit for that office or incapable of discharging it. His primary claim is that he be permitted to complete the administration of the estate alone. In the alternative, he offers to be discharged and for an independent person to be appointed to administer the estate. He says the delay is attributable to his sister and will continue unless she is removed.

The defendant opposes the application to remove her. She says that she has done the vast majority of the work required to get the estate to the point where it is now, virtually ready for distribution to occur. She claims that the plaintiff did not materially assist her in that task. She claims he resorted to legal representation inappropriately, and it is this that has caused delay in the administration of the estate. She raises a number of specific matters which she says contributed to delay in the administration of the estate and were in no way her fault. She poses the question rhetorically, if she is incapable of being an executor, how is it that the administration is now nearly complete as a result of her work — work that has been performed without help from the plaintiff?

I have considered the matters each side says contributed to the delay. To the extent the evidence allows, I have made findings about some of those matters. The defendant is not the sole cause of the delay. The plaintiff has at times contributed to some of the delay. More importantly, there has been a breakdown in the personal relationship between them, and that has been the main cause of the delay. The defendant is resentful of the plaintiff and to some extent her other brothers. It seems that she bore the lion’s share of the burden of looking after their mother, at great personal cost. The defendant’s way of communicating with her brother is very argumentative. The plaintiff found it very difficult to speak with the defendant. Given the correspondence from the defendant and the way she communicated during the hearing, this was understandable.

Regrettably, these matters contributed to the breakdown of the relationship between the plaintiff and defendant, and thus to delay in the administration. Starting with the plaintiff, they each retained their own separate legal representation shortly after probate was granted to them. After a few months, the defendant dispensed with her legal representation. The defendant was adamant that the parties should resolve their difficulties and administer their estate without incurring legal expenses that the estate might have to bear. Eventually, after several warnings, the plaintiff commenced this proceeding. The litigation has not run smoothly. The defendant repeated her views against the involvement of lawyers frequently, including during the hearing. She made accusations against the lawyers that were entirely without foundation.

On the evidence before me, it is not possible for me to make comprehensive findings about the details of the breakdown of the relationship between the plaintiff and the defendant. Some degree of responsibility probably rests on both of them. Findings on those matters are not essential to the determination of this application in any event.

What matters is whether the defendant can administer the estate. It is clear to me that she cannot do so. Such is the state of relations between the plaintiff and the defendant, and such is the defendant’s inability to identify and focus on relevant tasks, that she does not have the ability to administer the estate. The defendant has become distracted by peripheral or irrelevant issues time and time again. It is not just her relationship with the plaintiff that has been difficult. There was evidence that she has also encountered difficulties in communicating, and in maintaining working relations, with other people in the course of attempting the administration of this estate; this has included her own lawyer.

I have considered the plaintiff’s primary case that he should be permitted to continue as sole executor. I have concluded that leaving him in place as sole executor might be productive of further disputation with the defendant in her capacity as a beneficiary, given the history of the matter. I will therefore accept the plaintiff’s alternative claim based on his expression of willingness to be discharged from his office under s 34(1)(b) of the Administration and Probate Act 1958 (APAct).

The plaintiff has arranged for an independent legal practitioner experienced in such matters to be available, upon the giving of the usual undertakings, to be appointed as administrator and trustee of this estate. If that practitioner is still available and gives the usual undertakings, I intend to appoint him as administrator and trustee. Otherwise, I will hear the parties on an alternative appointment.

In addition, I will make orders pursuant to s 34(1) of the AP Act and directions under O 54 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) quelling the controversy as to the deceased’s jewellery, and relating to the costs of interment of the ashes of the deceased in Colombo in fulfilment of her Will.

I will hear the parties on the question of costs.

Issues for determination

The five questions for determination in this proceeding are as follows:

(a) Is the defendant (Ms Brito) unfit or incapable of acting as executor within s 34(1)(c) of the AP Act, so that I should remove her from her office as executor under that provision, and from her corresponding role as trustee of the estate under s 48 of the Trustee Act 1958?

(b) If so:

(i) should the Court leave the plaintiff (Mr Brito) in office as sole executor and trustee; or

(ii) should the Court make an order along the lines of paragraph 4 of the originating motion, discharging Mr Brito from his role, on the basis that Mr Brito has indicated that he is willing to be discharged pursuant to s 34(1)(b) of the AP Act?

(c) If Mr Brito is also discharged, who should be appointed as independent administrator and trustee?

(d) Should the Court also make additional orders as to the further administration of the estate, either under s 34(1) of the AP Act, or under the Rules,[1] or both? For example, should there be any directions as to jewellery previously owned by the deceased, and the performance of cl 6 of her Will as to interment of part of her remains in Colombo?

(e) The question of the costs of this proceeding. Mr Brito has foreshadowed a costs application against Ms Brito, primarily on an indemnity basis or alternatively on the standard basis. Ms Brito says Mr Brito should bear his own costs and she claims none. Both parties have indicated that they do not intend to seek indemnity from the estate for their costs of the proceeding.

[1]Supreme Court (General Civil Procedure) Rules 2015 r 54.02 (Rules).

In these reasons for judgment, I consider and determine the first four questions. As to costs, at the end of the hearing, I told the parties that they may file any further evidence on and address me further on that question after publication of these reasons for judgment.

Delay is central to the determination to be made on the first, second and fourth questions above, and will presumably also be relevant to the fifth question, when the parties address me on it in due course.

There were, on my count, 14 key matters that one or other party says contributed to the delay in administration of this estate, as follows (key delay issues):

(1) Mr Brito’s query about the whereabouts of proceeds from their father’s estate;

(2) the investigation of their parents’ financial affairs and whereabouts of records;

(3) Ms Brito’s claims for reimbursement;

(4) Ms Brito’s claims for compensation for caring for the deceased;

(5) the dealings with Louis Porritt, the deceased’s former solicitor and initial estate lawyer;

(6) the establishment of the estate bank account;

(7) the statement of estate liabilities;

(8) the interment of the deceased’s remains in Sri Lanka;

(9) the deceased’s jewellery;

(10) questions posed by Ms Brito;

(11) the failure of mediation arrangements;

(12) the delay in making interim distributions to beneficiaries;

(13) the dealings with the first accounting firm and preparation of estate tax return; and

(14) Ms Brito’s accusations against Mr Brito’s lawyers.

In addition to causing delay, Mr Brito says that Ms Brito has had conflicts of interest and duty to which she did not responded appropriately, also making it clear that she is unfit to remain as executor. There were two main issues in this regard:

(a) Ms Brito’s conduct relating to presentation of an invoice issued by ‘Swift Removals’; and

(b) Ms Brito’s presentation of various personal claims for compensation against the estate arising from her care for the deceased during the last years of her life.

I address each of the above key delay issues and the two additional matters of alleged conflict under the headings ‘Consideration of the key delay issues raised by the parties’ and ‘Should the defendant be removed from her office as executor and trustee?’ below.

Applicable legal principles

The principal claim in this proceeding was made under s 34(1) of the AP Act. Section 34(1) confers power on the Court to order the discharge or removal from office of an executor, including where the executor desires to be discharged (sub-s (1)(b)), or the executor is unfit to act or incapable of acting in that office (sub-s (1)(c)). It also provides that the Court may make ‘such order as to costs as it thinks fit’. Unfitness as a ground for removal can arise from a conflict of interest and breach or neglect of duty, including unwarranted delay.[2] This can include where the executor turns ‘what should have been a straightforward administration of a simple estate into a protracted and complicated affair’.[3]
[2]Monty Financial Services Ltd and Anor v Delmo [1996] 1 VR 65 (Ashley J) (Monty v Delmo); Fysh v Coote [2000] VSCA 150, [20]–[21] (Ormiston JA); Dimos v Skaftouros (2004) 9 VR 584; Jortikka v Haukka [2023] VSC 20, [41]–[42] (Daly AsJ) (Jortikka).
[3]Jortikka [46].

Courts will not lightly interfere with the testator’s choice of executor. However, it is the welfare of the beneficiaries and the protection of their interests in the estate that is the paramount consideration in exercising the discretion.[4] Whether the executor is or is not fit does not depend on any kind of intention on the executor’s part, and it does not matter whether their incapacity or unfitness is born of intent, carelessness or incompetence.[5] Misconduct need not necessarily be present, and ‘the only guide is the welfare of the beneficiaries’.[6]
[4]Dimos v Skaftouros (2004) 9 VR 584, [13] (Winneke P).
[5]Monty v Delmo 73.
[6]See Monty v Delmo 78, citing Miller v Cameron (1936) 54 CLR 572.

The leading case is Monty Financial Services Ltd and Anor v Delmo. The facts differed from the present case. The primary focus of Ashley J in Monty was on conflict of interest and duty. Here, Ms Brito’s conflicts of interest and duty play a secondary role; the key issues concern Ms Brito’s inability to distinguish between significant and insignificant issues and the prolix and confusing way she has communicated with her co-executor and others. Nevertheless, this case comes within the general principles for removal of executors as identified in Monty.

Further, the fact that the administration of an estate may be close to an end is no barrier to exercising the discretion to remove an executor of an estate — indeed, in some cases the fact that the administration of the estate is close to the end may be a relevant matter in favour of the executor’s removal.[7] In any event, I am not convinced that the finalisation of the estate could be achieved any time soon if Ms Brito is left in place.
[7]See Sampson v Charleton [2022] VSC 597, [102] (Daly AsJ).

Facts
Uncontroversial background facts

The late Mary Beatrice Kamala Brito-Babapulle (the deceased) and her husband Neville had four children, Ashan (the plaintiff), Tania (the defendant), Sean and Nigel. Neville died in about 2006. The deceased made her final will on 4 November 2003 (Will). She spent her final years in an aged care home in Clayton. She died on 13 October 2019, survived by her four children.

The Will appoints the four children of the deceased as executors. However, Nigel Brito and Sean Brito-Babapulle did not seek probate.

Under the Will, the residue of the estate is bequeathed to the deceased’s four children in equal shares absolutely.

Clause 6 of the Will provides:

6. Funeral Directions
It is my wish to be cremated. My remains are to be halved. Half of my remains will be buried in Australia (The Aeropolis [scil. Necropolis], Springvale, Victoria) and half to be buried with my husband’s remains (Neville Cecil Theodore Brito-Babapulle) at his family burial ground (Kanatte, Colombo) in Sri Lanka.

Probate was granted on 13 March 2020, with leave reserved to Sean and Nigel to come in and prove at any time. According to the inventory of assets and liabilities of the estate accompanying the probate parchment, the deceased had no real property on her death, and the assets of the estate amounted to approximately $927,085.443 in personal assets as follows:

(a) a residential accommodation bond $748,595.55;

(b) Aims Funds Management Group investment $10,529.97;

(c) MLC Investments Ltd $32,970;

(d) Woolworths Group Shares $34,176; and

(e) Westpac Bank Accounts $100,813.33.

Relevant events overview

The relevant events that have generated controversy in the proceeding may usefully be divided into four stages:

(a) the death of the deceased to the retention of separate lawyers: October 2019 to about March 2020;

(b) dealings between the parties through Mr Brito’s first lawyer and through Fr Michael O’Toole: March 2020 to May/June 2021;

(c) dealings between the parties through Mr Brito’s second and current lawyers, MST Lawyers, to the commencement of the proceeding: June 2021 to June 2022; and

(d) dealings during the litigation: June 2022 to May 2024.

In the next four sections below, I give a brief overview of key events in each four periods. More detail as to some of these events appears when I consider the key delay issues and the allegations of conflict of interest later in these reasons for judgment.

First period: October 2019 to March 2020

When the deceased died, the terms of the contract with the aged care home required prompt removal of her effects. Ms Brito arranged this.

Soon after the deceased’s death, Mr Brito queried whether Ms Brito had failed to disclose a significant amount of money as an estate asset.

On 4 March 2020, Ms Brito requested reimbursement to her of about $10,000 in claimed estate expenses accordance with an itemised expense list.[8] One of the items in the reimbursement request was $4,895 supported by an invoice from ‘Swift Removals’, Murtoa, Victoria dated 15 December 2019, ABN 22 250 838 132. That ABN was the ABN of Ms Brito’s husband, David Fletcher. That ABN had been active from 5 May 2000, recording Mr Fletcher as an individual/sole trader. On 8 March 2020, a business name ‘Swift Move’ was registered under that ABN.
[8]ACBB-1 21–49.

Between arranging removal of their mother’s effects in October 2019 and subsequently claiming reimbursement in March 2020, Ms Brito did not inform Mr Brito that the work would be done and charged for by a business registered to Mr Fletcher, or that the invoice issued by ‘Swift Removals’ was an invoice issued by Mr Fletcher for removal work done by him.

Mr Fletcher did not conceal his association with the work done or the invoice. The invoice gave an email address ‘[email protected]’[9] and a mobile phone number. However, Ms Brito did not specifically draw Mr Brito’s attention to Mr Fletcher’s role either.
[9]ACBB-1 47.

Second period: March 2020 to June 2021

After receiving the claim for reimbursements from Ms Brito and after the grant of probate, Mr Brito and his brothers Sean and Nigel retained a law firm to act on their behalf, and the relevant solicitor soon after commenced a separate practice and continued to act (Mr Brito’s first lawyer). Mr Brito’s first lawyer acted for the brothers until about April 2021, albeit sending her last letter in the matter on 15 June 2021.

Ms Brito also engaged lawyers to act on her behalf (Ms Brito’s lawyers). Ms Brito’s lawyers acted until about early October 2020.

There was correspondence between the respective lawyers in relation to the estate from June to September 2020. During this correspondence, Ms Brito made additional claims for reimbursement from the estate. On about 7 September 2020, her lawyers made a larger expenses claim including amounts relating to care provided by Ms Brito to the deceased from 2016. Ms Brito later explained in court that she regarded the care for her mother as inadequate and gave evidence that her mother had sustained very severe pressure injuries, necessitating her intervention. Ms Brito is trained as a nurse. By the same letter, her lawyers also forwarded a signed authority permitting the deceased’s former solicitor, Louis Porritt, to release information to Mr Brito’s first lawyer.

In a letter dated 7 October 2020, Mr Brito’s first lawyer rejected a proposal by Ms Brito for placing net proceeds once collected into a bank account in the name of both executors. The letter stated that steps should immediately be taken to collect in assets and distribute them. The letter recorded that the claim against the estate then totalled $23,911.56. The letter also queried Ms Brito’s claim for transportation and relocation costs and the ABN entity that had provided the services. The letter proposed that the assets of the estate be immediately collected and placed into Mr Brito’s first lawyer’s trust account, the total sum as stated in the inventory for the application for probate as $927,085.44. The letter proposed that the amount of $748,000 be immediately distributed equally between the beneficiaries, together with a further amount of $100,000 originating from the MLC cash accounts. The letter proposed leaving a balance of approximately $79,000 to provide for claims for expenses and reimbursement against the estate, which amount could be held in trust in the names of both executors pending resolution of the claim for expenses. It offered to schedule a mediation or meeting without the costs of a private mediator.

Three days later, on 12 October 2020, Ms Brito wrote an email letter to her brothers and Mr Brito’s first lawyer, key points in which were as follows.

(a) The letter requested that from that day all parties would need to contact her personally regarding this matter. Ms Brito’s letter withdrew her authority to Mr Porritt to provide the probate parchment held by him to Mr Brito’s first lawyer.

(b) The letter requested all Ms Brito’s costs as an executor, all funeral expenses, and all further costs borne by her over five years caring for her late mother, to be reimbursed. It stated that ‘non-negotiable’ costs were: personal expenses since 2016 in the amount of about $4,030; funeral expenses plus costs incurred as an executor in an amount of about $17,839; interest for one year at 2.5% per annum being about $597; six bangles to be returned to her; and her solicitor’s fees to be reimbursed. The letter also referred to two categories of ‘negotiable’ costs, being: travel costs over five years to Melbourne in the amount of about $30,000; personal job losses of about $30,000; plus JobKeeper subsidy forfeited of about $19,500.

(c) The letter also stated that there had been ‘no mention’ of ‘the four properties our parents purchased in their lifetime in Halls Gap, Mulgrave, Rowville and Glen Waverley’. The letter stated that the executors had the responsibility to ‘verify their status’.

(d) The letter also referred to a statement attributed to Ms Brito’s brothers on 14 November 2019 to the effect that they had concerns about how Ms Brito had handled funds over the last 13 years in regard to investments held by their father and mother now incorporated in the estate of their mother.

(e) The letter sought acknowledgement as to whether Mr Brito held ‘a sole power of attorney at any time over those 13 years’.[10]

[10]ACBB-1 72–73.

Further correspondence took place in the period November 2020 to February 2021 between Ms Brito and Mr Brito’s first lawyer on these issues, without any substantial progress being made in resolving them.

In late 2020, Ms Brito approached the family’s Catholic priest, Fr Michael O’Toole, to assist as conduit between the siblings to reach an agreement on the claims being made.

In a letter dated 10 December 2020, Mr Brito’s first lawyer conveyed instructions that her clients did not agree to moving moneys of the estate into a bank account held by Louis Porritt and referred to the trust account at her office, noting that it was available for collection of funds to be held until such time as Ms Brito’s expenses could be quantified and agreed. The letter conveyed Mr Brito’s instructions that he did not hold a sole power of attorney ‘nor has he held one as far as he is aware’. The letter noted that if Ms Brito was still of the view that all funds are to be collected into a bank account, it was recommended that an independent law firm be appointed to hold moneys and collect the estate funds. In the absence of a choice, the letter suggested that the Law Institute of Victoria could be requested to choose a suitable practitioner.[11]
[11]ACBB-1 77–78.

On 22 December 2020, Ms Brito wrote to Mr Brito’s first lawyer requesting a response to a request included in the letter of 9 December 2020, asking for specification of which claims for reimbursement from the estate are improper and which are proper. Ms Brito stated ‘When my questions are answered we can all agree to move forward’.

From late 2020, Fr O’Toole worked intensively to arrange a mediation process to bring the siblings to a reconciliation and resolution over the matters that had arisen between them. These efforts continued until at least March 2021. Fr O’Toole wrote an email in May 2021 indicating that those efforts had failed. Fr O’Toole gave evidence in this proceeding. He made himself available at short notice and cooperated fully with everything that was asked of him. Understandably, however, given that the events in question were more than four years ago and he has a busy pastoral care ministry, he was unable to remember the details of what had occurred. Consistently with his recollections of the matter, I am satisfied that Fr O’Toole expressed to all the siblings that there should be some form of mediation by skilled counsellors on both family issues and financial issues. He made arrangements for an experienced family counsellor, Mrs Beaver, to contribute to this process, and also obtained the consent of a skilled financial counsellor, Mr Green, to participate in this process. He also recalled that an option under consideration at the time was that both Mr Brito and Ms Brito might step down from their roles as executors and some independent person might be appointed as an administrator. However, he had no specific recollection beyond this. In particular, he could not recall the specifics of who first suggested this proposal, or whether anybody refused it. He recalled being ultimately disappointed that the family did not follow through with the mediation, but had no specific recollection as to how it had come to pass that the mediation process had not occurred.

I accept all this evidence from Fr O’Toole unreservedly. Given his understandable lack of recollection of the details, I make no findings about the following matters: the reasons why the mediation process proposed by Fr O’Toole did not proceed, whether one or more of the siblings refused to participate in it, and whether either of Mr Brito or Ms Brito agreed to or refused to relinquish their role as executor.

One of the issues raised in correspondence at about this time and later in 2021 was a concern by Ms Brito that Mr Brito’s first lawyer had indicated to her that she must refrain from direct communications with her brothers. This request or requirement had been made in a letter on 7 October 2020. Ms Brito wrote that this requirement meant that she was unable to reconcile with her brothers.[12] She repeated this in her submissions.
[12]See, for example, letter dated 11 April 2021, exhibit ACBB-1 85.

After expressing this concern in a communication from Ms Brito to Fr O’Toole, copied to Mr Brito’s first lawyer, it appears that Ms Brito’s brothers disengaged the lawyer’s services. On 12 April 2021, Sean Brito-Babapulle wrote an email to Ms Brito to this effect, also forwarding a letter from all the brothers dated 11 April 2021. Amongst other things, the letter acknowledged that Ms Brito and her husband spent many hours looking after the deceased in her last few years of life.

Ms Brito’s response to this letter, dated 14 April 2021, stated that it is a legal requirement that a client must notify their solicitor in writing that their services have been terminated and requested a copy of any such termination letter between Mr Brito’s first lawyer and her brothers. Additionally, the letter stated that the lawyers needed to notify Ms Brito in writing that they are no longer acting for Ms Brito’s brothers. It concluded, ‘Prior to communication with my co-executor regarding their letter dated 11 April 2021 I will require both of these documents’.[13] On 28 April 2021, Mr Brito, through Fr O’Toole, communicated to Ms Brito that he was confirming that he had disengaged the services of Mr Brito’s first lawyer.[14]
[13]ACBB-1 88.
[14]ACBB-1 90.

On 29 April 2021, I infer that Ms Brito telephoned Fr O’Toole and told Fr O’Toole that she required a copy of the letter from Mr Brito to the first lawyer stating the termination of the contract between them and that the solicitor will no longer be representing him in any discussions. I infer this from an email to that effect that Fr O’Toole wrote to Mr Brito and to Sean Brito-Babapulle on that date.[15]
[15]ACBB-1 91.

Ms Brito contacted the office of the Legal Services Commissioner in relation to what she perceived as the inadequacy of notification to her that her brothers had disengaged the services of Mr Brito’s first lawyer.

On 15 June 2021, Mr Brito’s first lawyer wrote to Ms Brito, stating that her services had been disengaged. Ms Brito referred this letter to the office of the Legal Services Commissioner. An officer responded that the letter was adequate. Ms Brito then ceased raising this issue in estate correspondence.

Third period: June 2021 to June 2022

On 25 June 2021, a lawyer newly retained by Mr Brito from about 10 March 2021, Natalie Lewis of MST Lawyers, wrote to Ms Brito.[16] Unlike Mr Brito’s first lawyer, MST Lawyers were acting only for Mr Brito, not Sean Brito-Babapulle or Nigel Brito.
[16]ACBB-1 104–109.

MST Lawyers’ letter set out a detailed response to the various claims for reimbursement of expenses made by Ms Brito and addressed various other issues seen as matters that were in dispute between Mr Brito and Ms Brito. The letter contained a five point proposal for ‘Moving forward with the administration of the estate’, involving the appointment of an independent firm to complete the administration of the estate.

On 16 July 2021, Ms Brito wrote a response to MST Lawyers’ letter dated 25 June 2021. Amongst other things, Ms Brito’s letter indicated that a number of expenses previously claimed would no longer be claimed. The letter described those matters in words but for the most part did not restate the particular figures. It also stated, ‘in lieu I ask that all your legal fees not be charged to the Estate…’.

Under the heading ‘Finalising the estate’, Ms Brito wrote:

I suggest Ashan and I open the Westpac Deceased Estate account as co signatories with Fr. M O’Toole who could accompany us entrusted with the parchment then return the same to Louis Porritt’s office (per conversation with Fr. O’Toole 14/7/21). I suggest Ashan and I make the five phone calls to move assets into that account, without any third party fees being charged to the Estate.

The letter went on to state that the following issues have to be addressed in addition to the matter of moving the estate moneys into the account:
1. Internment [sic] of mum’s ashes at Murtoa Cemetery, Springvale Crematorium and Borella Kanatte Cemetery Colombo, to join dad. We need to discuss this as a family but it’s never mentioned. Fr. O’Toole has offered to hold a service at Springvale Crematorium plus the interment fee is $405.
2. Provision for four Airline tickets should remain in the Estate for future travel to Sri Lanka.
3. Of the four properties owned by our parents I request a Title Search only on the MULGRAVE property. You should be able to retrieve the said document from mum’s filing cabinet or pay $78 to the Office of Australian Land Titles Search.
4. Please tell Sean I will reimburse him $304 for my share of the Louis Porritt Probate Invoice fee (Calculated by the $1,000 Sean held well before mum died-divided by four beneficiaries plus the amount Sean overcharged [mum in her chequebooks] for packaging materials).
5. Mum asked 5 months before she died to have all her bangles returned to resize and wear. Only one bangle was given to mum and I have this one. Ashan, you agreed to accept mum’s Thali given to you under mum’s instruction – we are all aware that as the eldest son you are entitled to this-as I am entitled to the seven bangles (less one) under the same Tamil custom, could you please return these to me.[17]

[17]ACBB-1 111–114.

On 30 July 2021, MST Lawyers responded to Ms Brito’s letter dated 16 July 2021. MST Lawyers confirmed their understanding that Ms Brito would not pursue her expenses claim, save for $2,731.13 in respect of funeral and related expenses. The letter conveyed that Mr Brito agreed that this amount was an estate expense payable to Ms Brito. The letter rejected the proposal to open a Westpac deceased estate account, noting that previous attempts to open such an account were made but to no avail. The letter proposed that Ms Brito should consent to Louis Porritt releasing the probate parchment to MST Lawyers and MST Lawyers administering the estate. The letter concluded:

If we do not receive your written consent to our client’s proposal on or before Friday, 13 August 2021, our client will commence proceedings to have you removed as an executor and this letter will be produced on the question of costs.[18]

[18]ACBB-1 117.

On 8 August 2021, Ms Brito sent an email to Ms Lewis of MST Lawyers acknowledging the letter of 30 July 2021 and its deadline of 30 August 2021. Ms Brito’s email noted that she had responded to her brothers directly and that ‘There is no conflict. There is no dispute to warrant my removal as an executor’.[19]
[19]ACBB-1 118.

On the same day, Ms Brito had sent a letter by email to each of her brothers and also to Fr O’Toole. The letter posed 10 questions. The letter sought: disclosure of the solicitor’s current fees; disclosure of projected court fees, and responses to the following eight questions, which were stated in bolded text:

Ashan, if you are not interested in expedience and saving our estate moneys - Why?
If this proposal is not suitable I want to know on exactly what grounds (now that I am not asking for expenses paid from the Estate)?
Do you want to be involved in the burial of your mother at Springvale Crematorium?
How much should we leave as Estate funds for Airline Tickets to Sri Lanka?
Do you hold Mulgrave property details or do we need a Title search done?
Does Sean want the $304 I owe him?
Do you intend to return my 6 bangles?
Do you Ashan have any other concerns/issues regarding the estate?

The letter concluded:
Can we please not delay further. I have asked Q1 to Q10 (bold text) to be answered in order to finalise the Estate. If any of these questions remain unaddressed then YOU are directly responsible for delaying progress.
I re-iterate there is no conflict or dispute to warrant my removal as a co executor.[20]

[20]ACBB-1 119–120.

On 13 August 2021, Mr Brito wrote to Ms Brito, addressing her letter of 8 August 2021 in detail. The letter set a number of conditions under which Mr Brito agreed to administer the estate with Ms Brito:

• Within five weeks from the date of this letter:
•We will have attended Louis’s office to obtain certified copies of the grant of probate …
•We will have agreed to an amount of money to distribute immediately once funds paid into the Westpac estate account. …

•    I accept that the uncertainty surrounding Covid restrictions may make it challenging for us to achieve this deadline. For the time being I believe five weeks is sufficient. Obviously we will need to monitor and adapt to the situation.
•    I will immediately write to AIMS Funds Management, MLC and Westpac requesting the forms required to release funds. I will provide you with any forms you need to sign as co-executor. We will need to discuss whether the Woolworths shares are to be sold or transferred.
•    As per the above, we will authorise an interim distribution as soon as possible and we can discuss how much to withhold in the Westpac estate account to cover further estate expenses and potential tax liabilities.
•    We will need to discuss whether an accountant should review mum’s tax. They may advise that final individual and estate returns are required to obtain clearance and to ensure we have discharged our duties as executors.
•    I expect that you will be forthcoming with any documents or information required in administering the estate.

The letter concluded by saying:
Laying mum to rest, the bangles and travel into Sri Lanka, whilst they are very important issues we need to discuss as a family, they are not to hold up the administration of the estate. If you purport to delay getting in the assets or making an interim distribution until these issues are resolved, I will seek legal advice with a view to having you removed as an executor and obtaining costs from you personally.[21]

[21]ACBB-1 112.

On 30 August 2021, Ms Brito wrote a letter to Mr Brito, her other brothers and also to Fr O’Toole, in relation to the correspondence that had been exchanged between Ms Brito and Mr Brito earlier in August. The letter noted that Mr Brito had not responded to questions 1 to 10 in Ms Brito’s correspondence of 8 August 2021. The letter went on to provide a detailed account of her perception of the dealings between Mr Brito and herself. This ran to about 12 pages.[22]
[22]ACBB-1 130–141.

Mr Brito responded on 7 September 2021, requesting Ms Brito’s signature on an enclosed authority to Louis Porritt to facilitate the getting in of estate assets.[23]
[23]ACBB-1 142.

On 13 September 2021, Ms Brito responded with another quite detailed and lengthy letter, this one running to three pages.[24] The letter concluded that Ms Brito would not agree to release certified copies of probate to anyone other than the asset holders. Ms Brito did not sign and return the authority document as requested by Mr Brito.
[24]ACBB-1 144–146.

On 22 September 2021, Ms Brito sent a briefer letter to similar effect, again refusing to provide authority for certified copies of the probate parchment to be provided to others. The letter also stated that a financial audit should be undertaken and suggested a particular contact for that purpose.[25]
[25]ACBB-1 147.

On 16 October 2021, Ms Brito again wrote at length to Mr Brito, this time raising various issues relating to the personal relations between them. Those issues related to things said at about the time of the deceased leaving her home and going into aged care, and at the time of the cremation and interment of the deceased’s remains, and matters of that kind. It also contained responses to concerns Ms Brito perceived to have been raised about various expense claims she had made.[26]
[26]ACBB-1 148–154.

On 14 November 2021, again Ms Brito wrote to Mr Brito raising issues in relation to the interment of their mother’s ashes and details relating to the estate, including Ms Brito’s perception that various allegations were being made against her. The letter stated her perception of dealings between Mr Brito and herself on these matters.[27]
[27]ACBB-1 155–157.

On 29 November 2021, MST Lawyers wrote on behalf of Mr Brito in response to Ms Brito’s letter dated 14 December 2021 requesting that Ms Brito ‘please address all future correspondence to my office and not to him directly’. The letter said, ‘He accepts that there may have been a misunderstanding at the funeral and wishes to move forward with the administration of the estate without delay’. The letter addressed claims for expenses to be reimbursed and suggested that, with a view to resolving the matter, Ms Brito should accept the sum of $10,000 out of the estate without deduction from her share of the estate in final settlement of her claims. The letter sought acceptance of the offer before 10 December 2021, failing which Mr Brito would without further notice commence proceedings in the Supreme Court seeking an order that Ms Brito be removed as executor so he can complete the administration of the estate and distribute it to the beneficiaries.[28]
[28]ACBB-1 158–159.

On 9 December 2021, Ms Brito sent a letter to Mr Brito also addressed to her other brothers and to Fr O’Toole. The letter chastised Mr Brito for a delay of three months between his most recent two letters and for a change in the name of the solicitor at MST Lawyers acting on the file. The letter accused Mr Brito of dishonesty. The letter referred again to the various questions Ms Brito had posed to Mr Brito in earlier correspondence. Ms Brito sought a response as to when an interment of the deceased’s ashes in Melbourne could occur. The letter referred to Mr Brito holding a sole enduring power of attorney since 1999 and the need for an audit.[29]
[29]ACBB-1 160–161.

An interment of the deceased’s ashes at Springvale ultimately took place on 23 February 2022. Fr O’Toole officiated. On 11 February 2022, Mr Brito wrote an email to Ms Brito thanking her for making the arrangements and acknowledging receipt of invoices attached to an email from Ms Brito on that subject. As to those invoices, he said ‘They have to be discussed separately by the four of us. I cannot speak for Sean and Nigel, if we can arrange a time to do this after mum’s interment that would be great, I am sure you would want everyone’s input’. On 17 February 2022, Sean Brito-Babapulle wrote to Ms Brito seeking confirmation that Ms Brito would bring the deceased’s ashes and asking how they are to be divided, one to be interred at Springvale and the other to be kept for the burial plot in Sri Lanka. Ms Brito responded on 20 February 2022, seeking responses to a question ‘Are you three boys legally represented in any way?’. She said, ‘Once this question is answered I am happy to address all requests or concerns in your emails’.

On 24 February 2022, MST Lawyers wrote to Ms Brito in relation to the matter of Mr Brito’s representation. As well as addressing where correspondence should be sent, the letter stated that Ms Brito had made ‘no effort to respond to my repeated requests to provide your identification to Westpac Bank as a prerequisite to opening an estate bank account to progress the estate administration’. The letter also claimed that Ms Brito had not responded to the offer in relation to reimbursements, which I take to be a reference to the letter sent by MST Lawyers on 25 June 2021.

The letter concluded, ‘If I do not receive a response to the issues raised, my client will without further notice commence proceedings in the Supreme Court of Victoria seeking an order that you be removed as executor so that he can complete the administration of the estate and distribute the estate to the beneficiaries’. Ms Brito responded to this letter from MST Lawyers by writing directly to her brothers, on 4 March 2022, and emailing MST Lawyers advising them that she had responded to her brothers directly. The letter queried why Mr Brito was using lawyers and whether this was inconsistent with the approach in late 2020 to a mediation process that did not involve lawyers. The letter complained that Sean Brito-Babapulle had paid an interment fee ‘stopping me from contributing my share’. The letter queried whether this was consistent with Sean not having paid for an earlier expense 26 months ago. The letter confirmed, as Ms Brito had previously confirmed on ‘numerous occasions’, that she would ‘not authorise the release of certified copies’ of the parchment paper.

On 7 April 2022, MST Lawyers forwarded a Westpac form to Ms Brito to facilitate the opening of an account.

On 11 June 2022, Ms Brito wrote to her brothers, copied to Fr O’Toole, complaining of a lack of response to an earlier letter from dated 19 April 2022. The letter of 11 June 2022 also complained of a lack of response to ‘numerous requests in writing’ relating to placement of a memorial plaque. The letter sought contribution towards the cost of those plaques. The letter concluded by requesting an audit to clarify the assets of the deceased and her husband ‘so we can move forward with estate administration’.

On 20 June 2022, MST Lawyers sent another letter warning of the commencement of proceedings in the event that a response to the letter was not provided. This letter sought confirmation of the list of assets in the inventory of assets and liabilities filed at the time of the application for probate and noted that Ms Brito had not attended the bank to facilitate the opening of an estate bank account as previously requested.

On 29 June 2022, this proceeding was commenced by originating motion, supported by an affidavit of Mr Brito prepared on 27 June 2022.

Fourth period: June 2022 to May 2024

The estate bank account was opened in March 2023.

Following a directions hearing in the proceeding, the parties appointed Mr Porritt to act as solicitor for the process of getting in the estate assets. It was Mr Porritt who requested the parties to open an estate bank account. All estate funds were promptly gotten in and paid into the account by 20 March 2023, resulting in a balance of approximately $970,000.

In the period December 2022 to March 2023, there was quite extensive correspondence between Ms Brito and MST Lawyers on the question of whether and when an interim distribution should be made to the beneficiaries. The question of an interim distribution had first been raised by Mr Brito’s first lawyer in correspondence in October 2020. Mr Brito’s first lawyer had proposed an interim distribution at that time. In December 2022, it was Ms Brito who was proposing an interim distribution. Funds in the Westpac deceased estate account at the time amounted to about $105,000. At that time, Mr Brito declined to make an interim distribution, preferring to wait until further assets were redeemed. At about this time, a residential accommodation deposit or bond was repaid to the Westpac deceased estate account, bringing the amount of the balance to over $900,000. On 18 January 2023, MST Lawyers sent a letter to Ms Brito advising that Mr Brito would agree to an immediate interim distribution on the basis that Ms Brito agreed to adjourn the trial of this proceeding to 5 May 2023.

On 23 January 2023, Ms Brito sent MST Lawyers and Mr Brito a letter requesting responses to questions relating to the deceased’s jewellery. The letter acknowledged that 97% of estate funds were now available for immediate distribution, but did not specifically consent to an interim distribution.

On 31 January 2023, Ms Brito sent MST Lawyers and Mr Brito a letter again referring to the assets now being available for immediate distribution, but without specifically consenting to an interim distribution.

On 7 March 2023, MST Lawyers summarised the correspondence between the parties and contended that ‘There is no reason why an interim distribution of $900,000 between the four beneficiaries cannot proceed immediately’. The letter requested advice as to when Ms Brito would be available to attend Westpac with Mr Brito to authorise and process an interim distribution to that effect.

On 6 April 2023, Ms Brito retained an accounting firm (the first accounting firm) to prepare a tax return on behalf of the estate. Without consulting Mr Brito, Ms Brito terminated the services of the first accounting firm by letter on 14 August 2023. Ms Brito’s letter of 14 August 2023 posed a number of questions to the first accounting firm about whether they had had dealings with Mr Brito, and requesting copies of correspondence with him. It included the question ‘Could you please explain why Ashan did not want to engage you (his own mother’s tax agent) when he was already dealing with you?’.

The letter then referred to a discussion that Ms Brito had had with the ATO and asserted that various circumstances were ‘unacceptable’. The letter asserted that it was now apparent that they ‘are unable to apply/lodge any necessary tax requirements prior to pending directions hearing; therefore I write to inform your services are no longer required from today 14 August 2023, ending our 6 April 2023 Terms of Engagement’. The letter concluded by referring to a ‘complaints option’ but stating that ‘I have chosen to refrain at present’. The letter requested an invoice for services to date.

Earlier during the retainer of the first accounting firm, Ms Brito had written to them that a certified copy of the grant of probate was not authorised for release to them. The first accounting firm had requested a certified copy of the grant of probate in order to apply for a tax file number for the estate. Ms Brito suggested that the executors meet together in Mr Porritt’s office to make an arrangement for release of a certified copy of the grant of probate directly to the ATO, rather than to the first accounting firm.

On 17 May 2023, Mr Brito attempted to progress this aspect of the first accounting firm’s work by asking Ms Brito whether she had organised a date with Mr Porritt for the signing of the certified probate document by both executors at his office, giving dates on which Mr Porritt was available.

On 19 May 2023, Mr Brito approved Mr Porritt forwarding the certified copy of probate directly to the ATO.

It appears there was no progress on this matter for several months. On 1 September 2023, Ms Brito wrote to Mr Brito stating ‘To date there is still no mutual consent by us the co-executors regarding an authorisation to Louis Porritt to release a certified copy of the probate parchment directly to the ATO. Why haven’t you or your legal counsel contacted me and asked how are we going to meet tax obligations and finalise the estate following my dismissal of [the first accounting firm] nearly three weeks ago for non-action; or is your court summons your only priority?’.

The matter went before a Judicial Registrar on 8 September 2023. The Judicial Registrar’s orders set a deadline of 27 October 2023 for Ms Brito’s final affidavit evidence for trial. She filed an affidavit on that date in which she deposed and exhibited documents adverting to the assistance she obtained from a second accounting firm in preparing the estate’s tax return, the filing of the estate’s tax return shortly before the directions hearing in September, and the issuing of an assessment by the ATO on 12 September 2023.

The Judicial Registrar’s orders did not permit any affidavit material to be filed after 27 October 2023. However, Ms Brito filed a further affidavit in December 2023, and then 21 further affidavits in April and May 2024, exhibiting documents.

Shortly before the hearing, I called a directions hearing to attempt to regularise the conduct of the trial. Mr Brito’s counsel indicated that Mr Brito and his legal representatives were preparing material in response to the affidavit material filed by Ms Brito outside the leave permitted by the Judicial Registrar. I set a deadline for any such material to be provided electronically to the Court and to Ms Brito, and reserved the question of whether and to what extent the parties would be permitted to rely on material filed outside the leave granted by the Judicial Registrar to the morning of the trial. On the morning of the trial I ruled on these matters, disallowing most of Ms Brito’s late filed material and only allowing Mr Brito’s responding material to the extent it related to the late filed material from Ms Brito that I allowed her to rely upon.

Consideration of the key delay issues raised by the parties

I refer to the 14 key delay issues raised by the parties, as summarised in paragraph 16 above.

(1) Mr Brito’s query about whereabouts of proceeds from father’s estate

At a meeting in November 2019, a month or so after their mother’s death, Mr Brito asked Ms Brito about whether there was an additional asset of the estate managed by her of up to approximately $154,000 of her mother’s money.

This became an issue between the parties. It contributed to the deterioration in their relationship, and thus indirectly to delay in the administration of the estate.

In his affidavit in support of the application in this proceeding, filed in June 2022, Mr Brito said:

One of the difficulties in preparing and finalising the Inventory of Assets and Liabilities was at the initial meeting with myself, Tania and Louis Martin Porritt solicitor, Tania did not disclose that there was an amount of $154,000 that she had been managing on behalf of our mother. This was only disclosed by her at a later date.

In her responding affidavit, Ms Brito in effect denied that she had concealed any such funds. She noted that there had been correspondence on this issue after it was raised in November 2019 and before the commencement of the proceeding, in which she had explained her position. She identified MLC as the financial institution that held the assets of her father’s estate once transferred to the deceased. She pointed out that there was no evidential reference given in Mr Brito’s affidavit to the assertion ‘This was only disclosed by her at a later date’.

I do not accept the evidence in Mr Brito’s initial affidavit on this point. Based on Mr Brito’s oral evidence at the hearing, it appears that Mr Brito’s concerns were eventually addressed to his satisfaction after he made his own inquiries at MLC. He said it became evident to him that the sum in question was about $29,000 held in an MLC account, after a larger sum had diminished due to drawings by their mother over the years.

This means that Ms Brito’s responses to this issue are correct. The statement in Mr Brito’s first affidavit in the proceeding about Ms Brito failing to disclose this amount in preparation for the application for probate in November 2019 was incorrect. It also means the statement in that affidavit about Ms Brito ‘later’ disclosing the amount was incorrect. In short, any claim that Ms Brito had initially concealed and belatedly disclosed information about an amount of the deceased’s money she was managing was without foundation. It is regrettable that the issue was ever raised.

On the other hand, it does not necessarily follow that Mr Brito acted wrongly in querying Ms Brito about the whereabouts of the proceeds of their father’s estate. It should have been possible for the matter to be raised, addressed with a brief and punctual response, and for the parties to move on, without irretrievable damage to their working relationship. That this proved impossible was a matter for which both Mr Brito and Ms Brito bear shared responsibility.

(2) Investigation of parents’ financial affairs and whereabouts of records

In her affidavits and submissions in this proceeding, Ms Brito did not stop at denying her responsibility for the sum of $154,000, questioned by Mr Brito. Ms Brito claimed that there were issues that needed to be resolved or investigated concerning the management by Mr Brito of their parents’ financial affairs over an extended period. That period dated as far back as 1999, when she said an enduring power of attorney had been granted by her mother to her brother, Mr Brito. Ms Brito had been agitating this issue since about July 2021. She questioned what had occurred to properties her parents had owned and lived in over their lifetime, and in particular a property in Mulgrave. She said that Mr Brito had taken possession of a filing cabinet of their parents’ financial records. Mr Brito denied having the financial records and claimed it was Ms Brito who took possession of the financial records, shortly after the deceased’s death. Ms Brito referred in her oral evidence to the possibility that the records were lost at the time of a garage sale.

On the evidence before me, it is not possible to resolve the factual dispute between the parties as to whether one or other of them took possession of the filing cabinet of financial records or whether they were lost. It seems likely that each of the parties has had possession of certain documents of a financial nature at some point in time. Ms Brito pointed out that some bank account statements were addressed to Mr Brito’s house, at least at some point in time. She also said that she had maintained records for Centrelink purposes on behalf of the deceased. However, it is not clear that either of them had a comprehensive collection of the deceased’s financial records. Perhaps they were lost. Again, this is an issue that was validly raised but which consumed far too much time. The parties should have been able to resolve quickly, with a minimum of delay to the administration of the estate. Regrettably that did not occur.

Somewhat inconsistently, in her affidavits and submissions in this proceeding, Ms Brito contends that an audit of the estate is needed, but also contends that the estate is virtually ready to be finalised. Mr Brito is not seeking any further investigation of the estate and wishes to have it finalised.

In the end, there was no evidence of any particular reasons for further investigation or delay.

The questions about the properties the parents owned in their lifetimes must be considered in the context of both Ms Brito and Mr Brito having signed an inventory in support of their application for probate which specified that the deceased died holding no real property.

As to the power of attorney, Ms Brito tendered in this proceeding a copy of an enduring power of attorney made by the deceased in favour of Mr Brito in 1999, signed by him, which Ms Brito said had been found amongst the deceased’s clothing. Mr Brito, through his lawyers’ correspondence, had denied any recollection of holding a power of attorney. Ms Brito did not cross-examine Mr Brito about the 1999 power of attorney. I make no adverse finding against Mr Brito in respect of this matter. He may simply have forgotten about it. Most importantly, he was not cross-examined about any particular transaction or use of the alleged power of attorney.

Ms Brito’s agitation of this issue has delayed administration of the estate without proper justification.

(3) Ms Brito’s claims for reimbursement

From March 2020 to July 2021, Ms Brito sought reimbursement of various expenses she incurred in administering the estate and until receiving MST Lawyers’ letter of 25 June 2021, was not satisfied with her brother’s engagement in negotiating over those expense claims.

There were various items of correspondence from Ms Brito listing various expenses in the evidence before me. The most significant of them is a letter to Mr Brito dated 12 September 2020. MST Lawyers’ letter dated 25 June 2021 provides a summary of the amounts claimed in correspondence up to that date, which was not disputed by Ms Brito.

Ms Brito gave oral evidence that a payment of about $11,000 in funeral costs was paid directly from a Westpac account holding funds of the deceased, and a further $2,040 was reimbursed to her, on the presentation of receipts for funeral expenses to Westpac. In addition, she requested reimbursement of about $18,000 of further expenses she regarded as estate expenses, including the Swift Removals invoice. MST Lawyers agreed that $2,731 of this amount constituted funeral and related expenses that Ms Brito should receive from the estate, but otherwise disputed the Swift Removals invoice and other items that she claimed.

Ms Brito’s expense claim on 4 March 2020 was evidently a factor in Mr Brito and his brothers obtaining their own legal representation. That correspondence itemises $10,070 in expenses. However, nearly half of it was made up of the Swift Removals invoice, which I have concerns about and have addressed in more detail below. By September 2020, Ms Brito’s claim for reimbursement of estate expenses was significantly larger, being about $17,839, including a significant item of $5,280 for lost wages, as well as the Swift Removals invoice and other items. In short, her claim was questionable, at least in certain respects.

Throughout the period of March 2020 to April 2021, when Mr Brito’s first lawyer was corresponding on Mr Brito’s behalf, the issue of Ms Brito’s claim for reimbursement of estate expenses was a significant obstacle to progress. There were efforts during this period, particularly by Fr O’Toole, to bring the parties together in a mediation, which could have addressed the reimbursement claims. I am not able to find, on the evidence before me, precisely who was to blame, and to what extent, for the lack of any progress in addressing the reimbursement claims during this period.

(4) Ms Brito’s claims for compensation for caring for the deceased

Relatedly, Ms Brito wished to obtain compensation for other amounts, incurred prior to her mother’s death. She told the Court that she cared for her mother particularly in the last three or so years of her life, after her mother received inadequate care at an aged care home and suffered severe pressure injuries there. Ms Brito made ‘negotiable’ claims for compensation for lost income arising from this care and other losses incurred before the deceased died.

These claims were significant. As set out in Ms Brito’s letters of 10 September 2020 and 12 October 2020, and later summarised in MST Lawyers’ letter dated 25 June 2021, these claims were in the order of out of pocket expenses of $4,000, job loss compensation of $30,000, loss of opportunity to obtain JobKeeper subsidy of $19,500, and travel expenses of $30,000. MST Lawyers, correctly in my view, questioned those claims. MST Lawyers suggested that an independent firm be appointed to complete the administration of the estate and one of their tasks would be to ascertain and pay any estate debts and liabilities. As MST Lawyers pointed out, the administration of the estate had been ‘hampered by conflict and disagreement’.

In the circumstances that had arisen, acting reasonably, Ms Brito should have accepted MST Lawyers’ proposal for resolving the claims she had raised against the estate by appointment of an independent firm to administer the estate. It would have been the timeliest way of resolving those claims and avoiding a conflict between Ms Brito’s interests in pursuing those claims and her duty as an executor. I return to the topic of conflict of interest arising from Ms Brito’s negotiable claims against the estate later in these reasons.

(5) Dealings with Mr Porritt

Ms Brito raised a number of points concerning interactions with her mother’s former solicitor, Louis Porritt, after her mother’s death.

I stress that these reasons for judgment contain no criticism of Mr Porritt, who was not represented in this proceeding.

Mr Porritt assisted Mr Brito and the defendant in their application for probate, and I infer that the court’s probate parchment was issued to him on their behalf. At all material times during the administration, it appears that he has retained custody. That must have been an onerous function, because there have been numerous controversies between the co-executors about providing certified copies of it to third parties in the course of the administration. These controversies have caused significant delay.

The controversies have extended beyond the co-executors. Ms Brito claimed that her own lawyer furnished to Mr Porritt an authority to release information, in circumstances where she claims she did authorise this to occur, although she had signed the authority.

At another time, there were difficulties in obtaining release of the probate parchment from Mr Porritt’s custody that appear to have been connected with payment of a bill he issued for his work relating to the estate.

At one point, Mr Porritt rendered an invoice for his work in obtaining probate and that invoice included his attendances in communicating with Mr Brito’s first lawyer on estate matters. This became a sticking point between Ms Brito and her brothers. She did not approve the payment of Mr Porritt’s invoice out of jointly held estate funds, instead requiring that all four siblings make separate payments of their share of Mr Porritt’s bill. Further, she disputed reimbursement of Mr Porritt’s attendances on Mr Britos’ first lawyer. The amount in question was small. Yet this appears to have become an impediment to Mr Porritt releasing the probate parchment at the time.

Presumably Ms Brito did not wish to pay, or for the estate to pay, for Mr Porritt’s communications with Mr Brito’s first lawyer, in circumstances where Ms Brito was opposed to him having separate legal representation. Although it was regrettable that Mr Brito and his brothers retained separate legal representation, this was an understandable response to Ms Brito’s expenses claim in March 2020, and the Swift Removals invoice in particular. Ms Brito’s refusal to approve payment of Mr Porritt’s invoice was not reasonably justifiable. He had performed the relevant work on behalf of the estate, and was entitled to be reimbursed from estate funds in a timely way.

On 12 October 2020, Ms Brito withdrew her authority to Mr Porritt to provide the probate parchment held by him and also indicated that any future correspondence would be conducted by her personally and not by her lawyers. I infer that Ms Brito’s lawyers ceased to act at about this time.

Ms Brito was cross-examined about her withdrawal of authority. She told the Court that she was in dispute with her lawyer about whether the authority she signed could be released to Mr Brito’s first lawyer. She said she did not authorise its release via the letter from her lawyers dated 7 September 2020. She did, however, sign the authority and provide it to her lawyers. I infer that this aspect of the delay is attributable to Ms Brito, and to confusion in her instructions to her lawyers.

Mr Brito suggested that the withdrawal of the authority caused delay. Ms Brito disputed this, and referred to the letter dated 15 June 2021, sent by Mr Brito’s first lawyer upon the end of her retainer by Mr Brito and his brothers. That letter gave an account of Mr Porritt’s refusal to provide the probate parchment to Westpac and other third parties. According to Mr Brito’s first lawyer’s letter, Mr Porritt required a further authority from Ms Brito before he would release the probate parchment. As I understood Ms Brito’s submission on this point, it was not so much her withdrawal of the authority that mattered, but the need for a further authority, in different form. Maybe so, but Ms Brito’s withdrawal of the authority probably contributed to Mr Porritt insisting on the need for a new form of authority. Her actions added significantly to the complexity of what should have been a simple task.

(6) Establishment of estate bank account

Relatedly, Ms Brito and Mr Brito both gave evidence about difficulties in choosing or setting up an appropriate account for receiving the proceeds of their mother’s assets. An account of some sort was necessary to facilitate getting in the proceeds of estate assets, payment of estate liabilities, and distribution to the four beneficiaries. At various times Mr Porrit was the estate’s lawyer, but it appears he did not operate a trust account. Eventually, this led to the use of the deceased’s former Westpac bank account, converted into a deceased estate account, as the account used to receive estate proceeds. However, that did not occur until about March 2023. The evidence was not comprehensive as to every step along the way that was occurring, but provides enough of a picture for me to conclude that both parties bear some of the responsibility for the associated delay.

From the outset Ms Brito said she wished to set up an estate bank account. During the period Mr Brito was represented by his first lawyer, the position that the lawyer advocated on his behalf was that it was unreasonable for Ms Brito to insist on setting up an estate bank account. The lawyer contended that the proceeds of estate assets should be remitted to her own trust account. I do not regard this as having been a reasonable position. That lawyer was not the estate lawyer but was the lawyer of Mr Brito and his brothers. Ms Brito’s counterproposal for the establishment of a separate bank account for the estate was more appropriate.

Once MST Lawyers had been retained by Mr Brito, the position advocated on behalf of Mr Brito altered with respect to this topic. In their first letter in June 2021, MST Lawyers proposed the appointment of an independent firm to administer the estate, and receipt of funds into that firm’s trust account. This was a sensible proposal, provided that the independent firm had not previously acted for either of the executors separately. Ms Brito responded with a proposal for a separate bank account, with her, Mr Brito and Fr O’Toole as co-signatories. In my view the suggestion that Fr O’Toole be a joint signatory would not have been fair on Fr O’Toole and was not a sensible one. MST Lawyers rejected this proposal and made a proposal that they administer the estate, using their trust account. In my view, this was not appropriate either, as MST Lawyers had been separately representing Mr Brito and there were various issues of controversy between Ms Brito and MST Lawyers.

By email on 13 August 2021, Mr Brito changed his position and accepted the gist of Ms Brito’s proposal for setting up a joint signatory Westpac account, albeit only he and Ms Brito would have been signatories. As part of this proposal, he requested Ms Brito’s consent to an immediate interim distribution of $700,000 of the proceeds of the assets of the estate, and a discussion of how much of the remaining proceeds needed to be retained to provide for tax and other liabilities. This was reasonable. From that point in time onward, it should have been a simple matter for the parties to agree and to implement a proposal for receiving the proceeds of the estate into an account, making an interim distribution, finalising ascertainment and payment of liabilities, and making a final distribution. Yet only the first of these steps has occurred, and that took nearly two further years and seems to have required the pressure of litigation.

The evidence before me was not comprehensive as to every step along the way to the establishment of the deceased estate bank account as the means for receiving the proceeds of the estate. However, what is clear is that there was great delay in this occurring. The evidence before me did not explain precisely for how long each apparently relevant factor exacerbated this delay. Those factors appear to have included, for example, delay in paying Mr Porritt’s invoice and confusion about authorisation of Mr Porritt to release certified copies of the probate parchment. It appears the Westpac deceased estate account was eventually used to receive the proceeds of the estate in March 2023, after the arrangements for this to occur had been raised in a directions hearing in this proceeding in late 2022.[30]
[30]Order of Judicial Registrar Keith authenticated on 24 November 2022, recital A.

(7) Statement of estate liabilities

Ms Brito claimed that her brother failed to sign an agreed statement of the liabilities of the estate, which she saw as a necessary step before there could be any distribution of net proceeds to the beneficiaries. I found this claim difficult to understand. Subject to Ms Brito’s own claims against the estate, the amounts of legal fees for various lawyers separately retained by the executors, and the tax liability of the estate (ultimately assessed in about mid-2023), there do not appear to have been any other liabilities likely to be imposed on the estate. Once this proceeding commenced, there was the prospect that the estate might be ordered to reimburse legal costs, or some of them. I cannot reach any finding on who bore direct responsibility for delay attributable to this issue.

(8) Interment of deceased’s remains in Sri Lanka

Ms Brito claimed that Mr Brito did not engage with her about the performance of cl 6 of the deceased’s Will concerning the interment of her remains, half of which were to be interred in a cemetery in Colombo, Sri Lanka. Mr Brito’s position was that this topic should be addressed after finalisation of the administration.

My impression of the evidence is that Ms Brito is justified in saying Mr Brito did not engage with her on this issue. In my view, he should have done so, because cl 6 gave directions to the executors as to the interment of the deceased’s remains, a matter to which the co-executors needed to have regard in performing their duties.

That said, it is understandable that Mr Brito took the position he did. He was probably trying to limit, not expand, the number of topics on which he had to engage with Ms Brito in order to complete the administration. This probably stemmed from the difficulties he had in communicating with her, addressed in more detail below.

(9) Deceased’s jewellery

The disposition of the deceased’s jewellery had an entirely disproportionate effect on the progress of estate administration from its first year right through to the last day of the trial.

Ms Brito claimed that Mr Brito was withholding items of the deceased’s jewellery, which she submitted were properly to be regarded as items of the deceased’s residual estate. As the family is of Tamil heritage, Ms Brito also referred to Tamil custom about handing on family jewellery to the next generation. The Will made no mention of Tamil custom, but if Tamil custom were to apply, Ms Brito claimed that this would entail her receiving more items than she had received. As the deceased’s only daughter she claimed she should receive all her mother’s jewellery, save for one special item, a traditional necklace/pendant known as a thali.

The deceased’s jewellery relevantly consisted of a number of gold bangles and a thali.

At some time around the last illness or death of the deceased, Ms Brito had received one of the bangles. At one point during evidence, Ms Brito said that she received this item from her mother. However, there was other evidence before me that she had received the bangle after it had been in the possession of Mr Brito. This was not explored in cross-examination of either party, and I make no finding on that matter. What is clear is that she received one of the bangles. Unfortunately, that bangle was later stolen during a burglary of her home.

Ms Brito wished to have the remaining bangles and the thali returned by the other beneficiaries and treated as part of the residuary estate, to be (re-)distributed evenly between the four beneficiaries.

Ms Brito also told the Court of her belief or understanding that there were seven bangles, not four. The basis for her belief was a 1989 CT scan of a person’s wrist, bearing her mother’s name, and appearing to show the outline of seven bangles. This piece of evidence is irrelevant. The bangles in the scan do not appear to match the description of the bangles the deceased owned at the time of her death: they are much thinner. The CT scan is also so remote in time as to be irrelevant.

At all material times since at least October 2020, Ms Brito has insisted that this issue of a distribution of the estate jewellery be resolved before the estate can be finalised. This was not a reasonable position for Ms Brito to adopt, and it contributed to delay in the administration of the estate.

My findings about the bangles are as follows. Mr Brito gave evidence, which I accept, that while still alive, his mother gave him a pouch containing four bangles, and only four bangles. One of these went to Ms Brito, one bangle to Sean, one bangle to Nigel, and retained one for himself. He now only retains one bangle. As already noted, Ms Brito gave evidence that she was of the belief or understanding that there were seven bangles and not four. I accept that she sincerely believed this, but I reject her belief as incorrect. She did not point to any reliable evidence that there had been seven bangles in her mother’s possession at her mother’s death or shortly before it. The CT scan she relied on was not a reliable basis on which any inference could be made that her mother was in possession of seven bangles on her death many years later. I accept the evidence of Mr Brito that he only ever received four bangles, which were essentially identical. They were almost 5mm wide, much wider than the apparent width of the seven thin bangles appearing in the CT scan. I accept that one bangle was distributed to each of the siblings. Whether they were a gift in the lifetime of the deceased or retained as part of her estate at her death to be distributed equally to the four beneficiaries, the result is the same. I am satisfied that the bangles were distributed in accordance with law.

My findings about the thali are as follows. While still alive, the deceased told Ms Brito to make sure that Mr Brito, as the eldest son, received the thali. Ms Brito then spoke with Sean Brito-Babapulle, who was visiting their mother, and Sean then took possession of the thali from their mother and at some later time handed it to Mr Brito. However, during the administration, there has been much contention about the thali. In effort to quell this, at the start of day three of the trial, through his counsel, Mr Brito undertook to relinquish possession of the thali and for it to be treated as part of the residue of the estate to be divided amongst the beneficiaries. This was a generous offer but is not called for, because on my view of the available evidence, the thali did not form part of the deceased’s estate. It was not one of her assets at the time of her death. Rather, it was given away by the deceased during her lifetime, albeit only shortly before her death. This occurred through her conversation with Ms Brito and her release of the thali to Sean Brito-Babapulle, to be given to Mr Brito. It is possible that the deceased may have set in motion this arrangement for the thali to go to Mr Brito while she was still alive because she was conscious of Tamil custom that the family thali should go to the eldest son, and knowing that her Will made no provision for this. Regardless, it was a gift effectuated during her life. I am satisfied that it is now in the possession of the person entitled to keep it, Mr Brito.

For these reasons, Ms Brito’s conduct relating to both the bangles and the thali has been unreasonable, and has needlessly contributed to delay in administration of the estate.

(10) Other questions posed by Ms Brito

From about late 2020, a pattern developed in Ms Brito’s correspondence whereby Ms Brito made requests for information, demanding responses as a condition of progress in the administration. There were many such questions put over the course of the administration, in various items of correspondence. She claimed that her brother had failed to answer those questions in a timely way, or in some cases at all, adding to the delay.

To take an example from the period April to June 2021, Ms Brito insisted on receiving a copy of a formal letter from Mr Brito’s first lawyer giving notification of the cessation of the lawyer’s retainer by Mr Brito and his brothers. I do not regard the insistence of Ms Brito on seeing a copy of a letter terminating the retainer of Mr Brito’s first lawyer as reasonable. Sean Brito-Babapulle had provided confirmation in writing by email, and Mr Brito’s letter of confirmation of this was signed by him. If confirmation of the email was required, then this sufficed. It was unreasonable of Ms Brito to insist on more.

A further conspicuous example of this is that, in August 2021, in correspondence with Mr Brito’s first lawyer, Ms Brito posed ten numbered questions to Mr Brito. On numerous occasions after this, Ms Brito referred back to these and demanded answers as a precondition of progressing the administration of the estate. Ms Brito’s position was that the questions required an answer before the administration of the estate could be progressed and finalised.

I do not have all the correspondence before me, but I do have a sufficient sample to be able to reach the following conclusions. Many of the questions Ms Brito posed did not need to be addressed in order to progress the administration. Some might have been, but it would have been difficult for Mr Brito to disentangle these from the others. It would be contrary to the efficient use of court resources to attempt to disentangle and trace the course of the questions and any responses to them through the correspondence. I will not attempt to catalogue the questions. Suffice it to say that many of the questions were peripheral or irrelevant to the work that needed to be done. They did not justify the prolix correspondence that was devoted to them. Ms Brito’s approach in demanding responses to many detailed questions as a precondition of progressing the estate was generally unreasonable and contributed to the delay.

(11) Failure of mediation arrangements

Ms Brito claimed that she had cooperated in arrangements for mediations and it was no fault of hers that those arrangements had not resulted in a settlement. As already mentioned with respect to the mediation process Fr O’Toole attempted to put in place, it is not possible for me to reach any conclusion on who bore direct responsibility for the failure of these efforts.

(12) Delay in making interim distribution to beneficiaries

As already noted, in late 2020 MST Lawyers sought Ms Brito’s consent to an interim distribution of $700,000 of the proceeds of the estate. At this time, it should have been evident that that would have left ample funds to address any likely liability of the estate. At the very least, Ms Brito should have proposed an alternative amount that could be distributed. There has still been no distribution, more than three years later. Ms Brito bears the primary responsibility for this.

(13) Dealings with the first accounting firm and preparation of tax return

TBT was retained between April and August 2023, when their retainer was terminated by Ms Brito, acting alone. In the meantime, it appears that she retained Talbot Accounting to prepare and lodge the estate’s tax return. Mr Brito was not privy to the materials on which the return was prepared and was not consulted about the termination of TBT’s retainer. Ms Brito’s actions may not have materially added to the delay already experienced, but they were in my view inconsistent with the proper role of a co-executor.

(14) Accusations against lawyers

Ms Brito was suspicious, or held an opinion, that there was an agenda by Mr Brito or his legal team to draw out the administration and to cause and prolong litigation about it. She claimed various breaches by MST Lawyers of the Civil Procedure Act 2010 in this regard.

Ms Brito pointed to no evidence to support her allegations. They amounted to nothing more than her own very speculative opinion, based on her view that the estate has been successfully administered to this point by dint of her own efforts, and that the lawyers have only impeded this. I do not accept this characterisation of events. The estate has not been successfully managed, and Mr Brito’s retention of separate legal representatives, while regrettable, was understandable and reasonable. I do not accept any of Ms Brito’s allegations against the lawyers.

Should the defendant be removed from her office as executor and trustee?

In deciding whether Ms Brito should be removed as an executor and trustee of her mother’s estate, I have considered all of the ‘key delay issues’ addressed above and, to the limited extent I have been able to reach any conclusions on them, I have weighed them. As noted in the course of the previous part of these reasons, Mr Brito or his lawyers contributed to some extent to several of them. Ms Brito also contributed in many ways. These issues were the principal issues that directly contributed to delay. However, I am satisfied that underlying them all there was a less direct but more significant root cause. That root cause was the inability of Ms Brito to distinguish between important and peripheral matters in the administration, and the way she communicated with Mr Brito and others.

The key delay issues addressed above are only of secondary importance. None of them justified the attention they were given in Ms Brito’s evidence and submissions to the Court in this case, or in the extensive correspondence Ms Brito conducted during the administration by email with Mr Brito, his legal representatives and others. Ms Brito informed the Court that she had sent hundreds of such items of correspondence. As noted above, some of these are in evidence, and these include some very lengthy letters, and repetitive requests or demands for responses to questions posed earlier. Many of the letters are very complicated. From time to time their content varied. Some of them were expressed in very confusing ways.

I have not reviewed each and every item of correspondence that passed between the co-executors. The preparation of the matter for trial was affected by procedural irregularities which led to me ruling out much of the material both parties belatedly sought to rely on. Further, the correspondence was not arranged systematically in Ms Brito’s affidavits, and some of it was copied and pasted in a way that led me to wonder if it was a fair reflection of both sides’ positions. In short, I acknowledge that the body of correspondence in evidence was incomplete.

Nevertheless, it has been possible for me to form a clear impression of what it must have been like to be on the receiving end of Ms Brito’s body of correspondence as a whole. Ms Brito’s correspondence was labyrinthine and prolix. It would have been virtually impossible, and incredibly time consuming, to trace the threads of any one of the many issues agitated by the parties through it all. The way Ms Brito conducted her correspondence was manifestly oppressive of Mr Brito and his representatives. It was incompatible with the proper role of a co-executor and trustee. It shows she is not fit or capable of remaining in that role.

Regrettably, the correspondence conducted by Mr Brito’s lawyers was also at times quite lengthy and complicated, and it also shifted in content over time. Ms Brito complained of this. However, this feature of Mr Brito’s lawyers’ conduct appears to me to have been, in the main, an understandable response to Ms Brito’s correspondence, and its prolixity and confusing nature.

In addition to the sample of the correspondence that is in evidence before the Court, Ms Brito’s conduct during the proceeding including her viva voce evidence last week establishes that it is Ms Brito’s ways of communicating with others that has caused the bulk of the delay. Even without the correspondence, having observed Ms Brito in court last week, I would be satisfied that she is not able to perform the role of co executor and trustee of the estate.

I observed the parties closely during their viva voce evidence given in this proceeding. I make no criticism of Mr Brito’s testimony. He answered honestly and to the best of his recollection and ability during a rapid and at times bewildering barrage of questions from Ms Brito, many of which were of peripheral or no relevance.

As to Ms Brito, I make no finding against her honesty. However, from the way she gave her evidence, I have concluded that she does not have the capacity to administer her mother’s estate. Her evidence was confused. Ms Brito was on many occasions unable to focus on relevant topics for more than a few minutes at a time. On many occasions, when giving her evidence, she became distracted by peripheral matters and perceived personal slights. This was perhaps most evident during her own cross-examination by counsel for Mr Brito, but was also apparent during her evidence in chief. It was also evident in her oral submissions and during her cross-examination of Mr Brito. Ms Brito tended to be distracted by peripheral matters to the extent that she could not carry key matters through to a conclusion. I cannot place weight on much of what she said, unless corroborated. I stress that this is due to her so often getting distracted and confused as she rushed to voice her thoughts and rapidly delivered lengthy and rambling passages of evidence. At one point, when asked about an earlier answer during cross-examination, she said she had ‘no idea’ what she had just said.[31] All this demonstrated that Ms Brito is not fit to be, or capable of being, an executor.
[31]Transcript 23 May 2024 329, line 5.

I conclude that the root cause of most of the delay in the administration of the estate is the way Ms Brito has conducted her correspondence and other communications as an executor and trustee, combined with an inability to filter unimportant issues from important ones.

The delay in estate administration of more than four years since probate is unacceptable. Something must be done. There is no real prospect that Ms Brito would be able to complete the remaining tasks in the administration of the estate without her pattern of prolix and confusing communications repeating itself for a long period, and perhaps indefinitely. I base this on the correspondence to date, and on her conduct in the hearing before me. For these two essential reasons, I have decided to remove Ms Brito from her office as executor on grounds of unfitness and incapacity to be an executor. Even her conduct in the proceeding alone justifies this course. Removing her from office is essential to ensuring that the estate will be finalised.

I also conclude that Ms Brito is unfit to remain an executor by reason of her lack of appropriate understanding of the requirements of the role, as shown by the two aspects of her conduct identified by Mr Brito’s counsel in this regard: the Swift Removals invoice, and Ms Brito’s negotiable claims against the estate arising from caring for the deceased since 2016.

First, I address the issue of the Swift Removals invoice. There was no deliberate concealment of Mr Fletcher’s role in doing the work or raising the invoice. The invoice bore his email address. Nevertheless, the arrangement shows poor judgement by Ms Brito. To arrange for Mr Fletcher, trading as ‘Swift Removals’ or ‘Swift Move’ and using his ABN, to charge for removal of the deceased’s effects, and then claim reimbursement of this sum from the estate was inappropriate without prior notification to her co-executor and consent to the arrangement by the co-executor. Ms Brito’s actions with respect to the Swift Removals invoice shows a lack of understanding about the appropriate way to carry out an executor’s duties.

Secondly, I address Ms Brito’s claims for negotiable compensation against the estate arising from her care of the deceased since 2016. I have already summarised the context in paragraphs 110 to 112 above. Ms Brito was making claims against the estate, the interests of which (as an executor and trustee) she herself also had a duty to promote. This was a conflict between her self-interest and her duty. Mr Brito submitted that it was no answer to Ms Brito’s conflict to say that the claims were ‘negotiable’; rather it exacerbated the nature of the problem to suggest these claims had to be negotiated. Rhetorically speaking, Mr Brito asked how Ms Brito expected the estate to negotiate those claims, given that she was one of its executors. This matter also reveals that Ms Brito did not have an accurate understanding of the requirements of her role as executor.

Should the plaintiff’s agreement to be discharged from his office be accepted?

Mr Brito’s primary claim is for removal of Ms Brito and for Mr Brito to be permitted to conclude the administration of the estate on his own.

In the alternative, if the Court thought it necessary or appropriate, he offered to be discharged pursuant to s 34(1)(b) of the AP Act. In other words, he was willing to indicate that he desires to be discharged if I think this is what is best. I have drawn on the overarching purpose of civil litigation set out in s 7 of the Civil Procedure Act 2010 to help me decide this point.

I refer to what I said in the introductory section of these reasons about the breakdown in the relationship between Mr Brito and Ms Brito. Ms Brito is one of the four residuary beneficiaries. In the finalisation of the estate, there will be transactions that relate to her. Akin to what I said there, such is the state of relations between Mr Brito and Ms Brito, such is Ms Brito’s inability to identify and focus on relevant matters, and such is her tendency to focus on peripheral or irrelevant matters, that further disputation seems likely if Mr Brito remains as executor.

I therefore conclude that leaving Mr Brito in place as sole executor should be avoided, given the history of the matter. I will therefore accept his alternative claim based on his expression of willingness to be discharged from his office under s 34(1)(b) of the AP Act.

Should an independent practitioner be appointed to administer the estate?

With Ms Brito being removed, and Mr Brito being discharged, it will be necessary to appoint a new administrator and trustee. That person should be independent of the parties.

Mr Brito arranged for an independent legal practitioner experienced in such matters to be available, upon the giving of the usual undertakings, to be appointed as administrator and trustee of this estate. That practitioner indicated his availability and willingness to be appointed, with the ability to call on the services of another firm, in a letter dated 20 May 2024 that I received into evidence. If that practitioner is still available and gives the usual undertakings, I intend to appoint him as administrator and trustee.

Otherwise, I will hear the parties on an alternative appointment.

What (if any) other orders, advice or directions are needed?

In order to quell the controversy relating to the deceased’s jewellery, I will make a declaration or order under s 34(1) of the AP Act and give advice and make a direction pursuant to r 54.02 of the Rules to the effect that:

(a) the thali previously owned by the deceased was gifted in her lifetime to the plaintiff, Ashan Brito, and did not form part of the estate of the deceased; and

(b) the bangles previously owned by the deceased do not form part of the residuary estate of the deceased and the administrator and trustee is not to take any further step in relation to them.

The state of the evidence is that Ms Brito retains possession of the second container of the deceased’s ashes and that she wishes to inter them at the family burial plot at Kanatte Cemetery in Colombo. For the purposes of quelling any further dispute about the interment of the deceased’s ashes in Colombo, I will order pursuant to s 34(1) of the AP Act, and give advice and make a direction pursuant to r 54.02 of the Rules, to the effect that:

(a) the defendant, Tania Brito, is permitted, accompanied by one travel companion, to travel to Colombo, Sri Lanka, and to inter the ashes of the deceased at Kanatte Cemetery in accordance with cl 6 of the Will;

(b) the administrator and trustee is to be provided with an estimate in advance of travel by Ms Brito and her travel companion of the reasonable costs of travel and the interment, and after those actions have been performed, is to reimburse Ms Brito in accordance with the estimate; and

(c) in the event that clause 6 of the Will remains unperformed for 12 months from the date of this order, the preceding paragraphs (a) and (b) of this order will cease to operate, and the administrator and trustee may make alternative arrangements in performance of cl 6 of the Will.

Conclusion

I will order the removal of Ms Brito from her offices as executor and trustee of the deceased’s estate, accept the discharge of Mr Brito from his offices as executor and trustee, and appoint an independent practitioner to those offices.

I will also make the orders and directions set out in paragraphs 171 and 172 above.

I will hear the parties on the question of the costs of this proceeding.

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[2024] VSC 281

31 May 2024