In the Estate of GWENDOLINE KATHERINE WILKINSON (DECEASED) - [2018] SASC 200

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of GWENDOLINE KATHERINE WILKINSON (DECEASED)
[2018] SASC 200
Judgment of The Honourable Justice Stanley
24 December 2018
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - PASSING OVER OF EXECUTOR AND OTHER MATTERS
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF ADMINISTRATION GENERALLY - PUBLIC TRUSTEES AND CURATORS
This is an application by the plaintiff to pass over the defendants as executors of the deceased’s estate, and for an order that the Public Trustee be granted administration of the estate with the will annexed. The defendants, who have applied for a grant of probate, oppose the application.
At issue is whether a proper basis exists to invoke the exercise of the Court’s power to pass over the defendants as executors and to authorise the Public Trustee to administer the deceased’s estate.
Held:
1. If the plaintiff and the defendants all took a grant of probate, the administration of the estate would be rendered unworkable.
2. The executors appointed in the will of the deceased be passed over.
3. Grant to the Public Trustee letters of administration with the will annexed.
Public Trustee Act 1995 (SA) s 9; Testamentary Causes Act 1867 (SA), referred to.
In the Estate of Crane (2005) 93 SASR 198; Bowler v Bowler BC9002347 (Unreported, Supreme Court of New South Wales, Young J, 7 June 1990); Uniting Church in Australia Property Trust (NSW) v Mellane [2002] NSWSC 1070; Monty Financial Services Ltd v Delmo [1996] 1 VR 65; Porteous v Reinhart (1998) 19 WAR 495; Gowans v Watkins & Anor (Unreported, Supreme Court of Victoria, Teague J, 21 February 1996); Tsaknis, as executor and trustee of the Estate of Lilburne [2010] WASC 152; Executor Trustee Australia Ltd v McDougall (2011) 110 SASR 462; Morgan v MacRae [2001] NSWSC 1017; Upton v Downie [2007] NSWSC 1095; Gorman v McGuire [2002] NSWSC 1089; Woodley v Woodley (No. 2) [2017] WASC 94; Reynolds v Bonnici [2017] NSWSC 828, discussed.
In the Estate of Billington [2017] SASC 73; Jurkiewicz v Jurkiewicz [2013] ACTSC 89; In the Estate of Stuart (dec'd) (2009) 106 SASR 39, considered.

In the Estate of GWENDOLINE KATHERINE WILKINSON (DECEASED)
[2018] SASC 200
Testamentary Causes Jurisdiction
STANLEY J.
Introduction

Gwendoline Katherine Wilkinson (the deceased) died on 28 March 2017. She left an estate with an estimated value of just under $3.5 million. By her will she appointed her three sons, Anthony Ronald Kernot Wilkinson (Tony), Hugh Graham Bromley Wilkinson (Hugh) and Alexander Ian Wilkinson (Sandy) as her executors.[1]
[1] It is convenient to refer to the Messrs Wilkinson by their Christian names. No disrespect is intended.
Hugh and Sandy have applied to the Court for a grant of probate of the will. Tony opposes the sealing of a grant of probate and seeks an order pursuant to s 67 of the Testamentary Causes Act 1867 (SA) for the passing over of Hugh and Sandy as executors of the deceased’s estate. Hugh and Sandy oppose the application that they be passed over as executors.
Tony seeks an order that the Public Trustee be granted administration of the estate with the will annexed pursuant to s 9 of the Public Trustee Act 1995 (SA).
The will
The deceased made her will on 5 November 2013. In addition to appointing her sons as her executors and trustees she made a specific bequest of her household and personal furniture and effects to her husband, Graham Neil Wilkinson, and further specific bequests of $150,000 each to Hugh and Sandy. She left her residuary estate to be divided equally between Hugh, Tony and Sandy.
The basis of the application to pass over the propounding executors
Tony seeks an order for the passing over of Hugh and Sandy as executors on the basis that they are in a position of conflict in relation to the transfer by the deceased to Hugh in October 2014 of $300,000 and four separate payments totalling $65,000 made by the deceased to Sandy in March, May and August of 2014. Tony submits that these transactions require careful investigation by the executors of the estate to establish whether, at least in the case of the transfer of $300,000 to Hugh, this represents a loan owed to the estate, and, in relation to all these transactions, whether they are ademptions. Tony submits that it is evident that Hugh and Sandy will not undertake those investigations on behalf of the estate. He submits that as a result, his interests as a beneficiary in the estate will be prejudiced. Tony submits that Hugh and Sandy as executors have a duty to investigate these transactions as part of their duty to bring in the assets of the estate. Hugh and Sandy refuse to do so. Further, Tony submits that there exists such a degree of hostility and antagonism between himself and Hugh and Sandy that the administration of the deceased’s estate would be unworkable.
The jurisdiction of the Court
There is no issue that the Court is conferred with jurisdiction to make the order sought passing over the propounding executors.[2] Further, s 9(1) of the Public Trustee Act 1995 (SA) confers power on the Court to grant administration of the estate of a deceased person to the Public Trustee or to authorise the Public Trustee to administer the estate of a deceased person in prescribed circumstances, which include where no person entitled to obtain administration (with or without a will annexed) does so within three months after the death of the deceased.[3]
[2] In the Estate of Crane [2005] SASC 379 at [23], (2005) 93 SASR 198 at 203; In the Estate of Billington [2017] SASC 73 at [7]-[12].
[3] Section 9(1)(e).
At issue is whether a proper basis exists to invoke the exercise of the Court’s power to pass over Hugh and Sandy as executors and to authorise the Public Trustee to administer the deceased’s estate.
In In the Estate of Crane[4] Besanko J identified two general principles governing when the jurisdiction to pass over will be exercised.[5] They are: first, a Court will not readily pass over a named executor and, in general, a person who is named as executor by a testator is entitled to a grant of probate; and second, when a Court does exercise the jurisdiction it does so having regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate.
[4] [2005] SASC 379, (2005) 93 SASR 198.
[5] [2005] SASC 379 at [24], (2005) 93 SASR 198 at 203-204.
Besanko J cited with approval the reasons of Young J in Bowler v Bowler[6] that the inherent jurisdiction to pass over an executor should be exercised only in exceptional circumstances. Besanko J held that, in the ordinary case, a potential conflict of interest will not be sufficient to justify the exercise of the jurisdiction. He referred to the reasoning of Windeyer J in Uniting Church in Australia Property Trust (NSW) v Millane,[7] that not infrequently an executor will have some conflict, such as being a debtor to the estate. However, Besanko J distinguished that situation from the facts of the case before him. In Crane the executor was in a position of conflict because he asserted that assets of the deceased’s estate had been transferred to him inter vivos for negligible consideration. There was a dispute as to the validity of these transactions. Besanko J held that there was every reason to think that the executor would continue to maintain the position that the transactions were legally effective and that he owed no money to the estate. In these circumstances he considered that he could be confident that the executor would not consent to the estate asserting rights in relation to the assets. In that event, an application to the Court for the estate to bring or defend proceedings would be almost inevitable. On that basis he granted the application to pass over.
[6] (Unreported, Supreme Court of New South Wales, Young J, 7 June 1990).
[7] [2002] NSWSC 1070.
In Monty Financial Services Ltd v Delmo[8] Ashley J held that a testator’s selection of executor should not be lightly set aside but proof of actual misconduct is not necessarily required; a conflict of interest and duty may suffice. However it is not every conflict of duty and interest which results in removal of an executor. In Monty, Ashley J made an order for the removal of an executor because the conflict of duty and interest on the part of the executor required him to make a decision whether to accept or reject his own truthfulness as to whether money paid was a gift or a loan. The circumstances of the case were that the testator died in 1992 leaving a will made in 1987 by which she appointed her son and her daughter as executors. They were the primary beneficiaries of the will. The daughter had renounced her right to the executorship as she was bankrupt and probate was granted to the son. Shortly after the grant was issued the son claimed that his mother owed him approximately $280,000 which he intended to repay to himself from the estate funds. The plaintiff objected to the son’s claim as it was a creditor of the bankrupt daughter. The plaintiff claimed that, if and when the son proceeded with the administration of the estate, he would be faced with and obliged to resolve a conflict of duty and personal interest concerning the debt which he claimed was due to him by the estate. The Court held that it could not sensibly be inferred that the testator intended the son to hold office despite the conflict of duty and interest concerning the asserted loan.
[8] [1996] Vic Rp 7, 1 VR 65.
In Porteous v Rinehart[9] the Supreme Court of Western Australia held that it is rare for a Court to remove an executor or a trustee save in exceptional circumstances. The power to remove an executor or trustee is a delicate one which must be exercised cautiously. White J cited with approval the judgment of Teague J in Gowans v Watkins & Anor[10] as authority for the proposition that before a Court will remove a named trustee for conflict of duty, it must be satisfied that such conflict has caused, or is likely to cause, “mischief” at a reasonably high level of seriousness.
[9] [1998] WASC 270, (1998) 19 WAR 495.
[10] Unreported, Supreme Court of Victoria, 21 February 1996.
In Tsaknis, as executor and trustee of the Estate of Lilburne[11] EM Heenan J held that there is no doubt that a Court has power to pass over an executor named in a will in exceptional circumstances and even in other circumstances. He held that those circumstances included incompatible interests of the executor. His Honour observed that there are no limits to the grounds upon which an executor may be passed over. Every case must depend upon its special facts with each case to be decided upon its own merits.[12] Heenan J said:[13]
All of the discussions of this principle emphasise that it is a serious matter to pass over an applicant for a grant who is an executor named by the deceased because, presumably, the deceased has made his or her choice of executors with knowledge of the person concerned and such a person is generally entitled to a grant of probate: Marsh v Patten; and Porteous v Rinehart, so that exclusion of such a person requires special or stringent grounds: Evans v Tyler.
The testator's choice of a designated person to be executor or co-executor implies that the deceased reposed trust in that person and considered him or her to have been suitable and capable of performing the duties required - Monty Financial Services Ltd v Delmo; Estate of Rogers v Rogers; and Uniting Church in Australia Property Trust (NSW) v Millane. Especially in relation to family affairs where it might be suggested that there is, or might be, a conflict of interest between the executor named and the due administration of the estate, it is necessary to bear in mind that the deceased can be expected to have known of relationships and circumstances existing during his lifetime which might create or lead to any expectation of any such conflict of interest and, to have made the choice of appointee in the light of that knowledge. However, this approach cannot be taken in relation to conduct or circumstances which have arisen since the death of the testator or about matters which the testator could not have been expected to have had knowledge.
[Citations omitted].
[11] [2010] WASC 152.
[12] [2010] WASC 152 at [58].
[13] [2010] WASC 152 at [60]-[61].
In Tsaknis the grounds relied upon for the order sought passing over the executor were alleged conflicts of interest; alleged hostility or animosity between the executors; alleged failure to disclose the full extent of estate assets thought to be in the possession of the executor; and an alleged failure to provide relevant information concerning the indebtedness of the executor and his wife to a trustee company which was itself a debtor of the estate. The Court considered there were reasons for concern that the future administration of the estate might be handicapped as there was not a satisfactory working relationship between the co-executors. This was a sufficient basis to justify an investigation as to whether the executor should be passed over.
In order to determine whether named executors should be passed over it is not necessary to make any final determination in relation to the claims made against them.[14] In Executor Trustee Australia Ltd v McDougall[15] Kourakis J (as he then was) held that the existence of a conflict of interest may be a sufficient basis on which to revoke a grant of probate but only “as a very last resort when there is no other appropriate method of dealing with the problem that may have emerged”. Revocation will only be ordered where it is clear “that the due and proper administration is put in jeopardy or has in fact been prevented or frustrated by the executor”.[16] Kourakis J cited Morgan v MacRae[17] and Upton v Downie[18] as authorities for the proposition that a mere conflict of interest and duty will not result in a restraint or a removal of the personal representative. It must be shown that the personal representative prefers interest to duty and intends to neglect the duty. Kourakis J considered that proposition required some qualification. He said that statement of the test is correct where the conflict arises from the very terms of the will and the testator must, therefore, have appreciated the extent of the conflict. However, in cases where the conflict does not arise from the terms of the will itself, and is unlikely to have been anticipated by the testator, Kourakis J preferred the approach taken in Gorman v McGuire[19] by Palmer J.
[14] In the Estate of Crane [2005] SASC 379 at [14], (2005) 93 SASR 198 at 201-202; Woodley v Woodley (No. 2) [2017] WASC 94 at [67].
[15] [2011] SASC 140, (2011) 110 SASR 462.
[16] [2011] SASC 140 at [22], (2011) 110 SASR 462 at 468.
[17] [2001] NSWSC 1017.
[18] [2007] NSWSC 1095.
[19] [2002] NSWSC 1089.
In Gorman v McGuire the plaintiff was an executor of the estate of his mother. The plaintiff and his mother had carried on a business together which the plaintiff continued to operate with the joint assets after her death. It was, therefore, necessary that there be an accounting of the profits so derived by the plaintiff. In addition, the plaintiff’s father had brought a claim against the estate pursuant to the Family Provision Act 1982 (NSW). Palmer J described the plaintiff’s circumstance as “a hopeless position of conflict of interest and duty”.[20] He concluded:[21]
In the present case I am satisfied that the due and proper administration of the deceased's estate will be placed in jeopardy unless the Plaintiff is released from his executorial duties and is removed from his office. This is not because of any delinquency on the part of the Plaintiff but rather it is because, as a matter of practicality, he cannot now discharge his duties as executor in attempting to administer the affairs of the estate without breaching his fiduciary duty not to place himself in a position of conflict and duty. If the Plaintiff is not removed from that difficulty, the administration of the estate may be stultified and an appropriate and beneficial settlement of all issues affecting the estate may be frustrated.
[20] [2002] NSWSC 1089 at [4].
[21] [2002] NSWSC 1089 at [11].
In Woodley v Woodley (No. 2)[22] Pritchard J undertook an analysis of the principles pursuant to which the Court exercises its jurisdiction to pass over an executor under a will. Her Honour held that the test is whether the due and proper administration of the estate has been put in jeopardy or prevented; either by reason of acts or omissions on the part of the executor; or by virtue of matters personal to him or her; or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties of an executor. Citing with approval the discussion of the circumstances in which named executors may be passed over in Tsaknis, her Honour noted that executors have also been passed over where their relationship with the other executors has deteriorated to the point where there is no realistic expectation that they will be able to work together in the interests of the estate. If it is shown that a history of past family conflict, or bitter relations between executors and the beneficiaries of the estate, is likely to impact on the decisions made by the executor, and to leave the beneficiaries with the suspicion that the executor’s decisions will be tainted by their emotions or self-interest, that may also warrant the removal of the executor.[23]
[22] [2017] WASC 94.
[23] [2017] WASC 94 at [48]-[49].
Her Honour went on to observe that the Court’s caution in passing over an executor means that it will not be sufficient for an applicant for that relief simply to allege the existence of a conflict of interest (such as that the executor owes a debt to the estate), without a proper basis being shown for those allegations. It is not sufficient to advance “mere allegations and suspicions”.[24] Vague and unparticularised allegations of misconduct will be insufficient to warrant an executor being passed over. However, if the executor disputes a debt or refuses to acknowledge a debt as an asset of the estate, in circumstances where the executor himself is alleged to owe the debt and acts on the basis of a version of events which does not give rise to the alleged debt, that will be a relevant consideration in determining whether the executor should be passed over in order to ensure the proper administration of the estate, in the interests of those beneficially entitled to it. However, even the existence of an actual conflict of that kind will not inevitably require that the executor be passed over. All of the circumstances of the case will be relevant. These will include whether the conflict can be managed or resolved in some way (for example, by an application for directions from the Court); the relationship between the executor, any other executors and the beneficiaries; the executor’s appreciation of the conflict of interest; and the financial burden on the estate if the executor is removed.[25]
[24] [2017] WASC 94 at [63].
[25] [2017] WASC 94 at [52]-[53].
Pritchard J said in family situations, where personal conflicts and conflicts of interest frequently arise, the deceased can be expected to have known of such conflicts but chose the executor in light of that knowledge. On the other hand, the same approach cannot be taken in relation to conduct or circumstances which arise after the death of the deceased or about matters of which he or she could not have been expected to be aware. Where the executor is in a position of irreconcilable conflict between his or her duties to the estate and his or her personal interests, and especially when that conflict is something about which the deceased could not have been aware, the proper administration of the estate may require passing over of the executor. Where the appointment of an independent administrator will be necessitated by passing over a named executor, the cost of that course is a relevant consideration in determining whether to make an order passing over an executor. Her Honour noted, however, that in cases of conflict between executors in the one family, the cost of appointing an independent administrator may be less of an imposition on the estate than prolonged litigation involving the named executors.[26]
The evidence
[26] [2017] WASC 94 at [55]-[57].
Tony Wilkinson

Tony gave evidence orally and by affidavit. He said he and his brothers have often been in dispute over the financial assistance each had obtained from the deceased during her lifetime. Tony said from 2009 to 2013, the deceased gave him about $5,000 per month. From November 2013 to April 2014, the deceased gave him about $20,000 in total. By written loan agreement dated 1 March 2014, his father, Graham Wilkinson, loaned him $220,000. Interest was payable on the loan.
Tony said he believes his brothers tried to influence the deceased to change her will. He referred to an email that Hugh sent to the solicitor of the deceased, Ms Pam McEwin, in November 2013, in which Hugh asserts the distribution of money in the deceased’s will is unfair. Tony also gave evidence of an argument that occurred between him, Sandy and Hugh on 19 March 2014. On that day, Tony went to visit the deceased at her home. There he encountered Sandy, who intended to take the deceased to an appointment with her solicitor to change her will. Hugh arrived, and he, Tony, Sandy and the deceased argued about how much financial assistance each of them had received from the deceased during her lifetime. Due to the argument the deceased did not attend the appointment with Ms McEwin.
On 8 May 2014, the deceased wrote Sandy a cheque for $20,000 which exceeded the funds in the account. Tony said he had to help the deceased move money into the account to prevent the cheque from bouncing.
Tony said on 13 July 2014 he had an argument with Sandy and Sandy’s wife, Robyn, in the deceased’s kitchen. Tony said the argument was, in effect, in relation to the care of the deceased and her home. In the course of the argument, Tony grabbed a breadboard that Robyn was holding and slammed it on the kitchen counter, and shook Sandy by the shoulders.
On 2 October 2014, the deceased transferred the sum of $300,000 to Hugh. Tony, who had view access to the deceased’s bank accounts, noticed the transfer. He asked the deceased about it. He said the deceased told him the money was a loan to Hugh so that he could renovate a house. He said sometime between October and December 2016, he heard the deceased ask Hugh about the payment of interest on the loan. Further, at Tony’s request, consultant geriatrician Dr Jane Hecker assessed the deceased in June 2015. Dr Hecker provided a report to the effect that the deceased told her she had loaned her son Hugh $300,000 to renovate a house. That report was admitted into evidence. Tony said Hugh’s claim that the $300,000 was a gift is inconsistent with the deceased’s subsequent instructions to Ms McEwin that she did not want to further adjust her will other than giving an extra $150,000 to Hugh and Sandy.
Tony said in 2015 he was overseas when he learned that Dr Wesley Wong, a general practitioner, had found the deceased lacked capacity, and that Hugh had taken control of the deceased’s affairs using the power of attorney granted to him in 2006. When Tony returned, he also learned Hugh had obtained an order for guardianship of their father. Tony believed Dr Wong was incorrect. He arranged for Dr Hecker and neuropsychologist Dr Colin Field to examine the deceased. Both doctors also concluded that she lacked capacity. Tony applied to SACAT to revoke the 2006 power of attorney. The application was dismissed in September 2016.
Tony said between September and December 2015 he, Hugh and Sandy had a series of meetings to discuss their parents’ affairs. The last meeting ended acrimoniously when Hugh and Sandy refused to sign the 2013 power of attorney document at the request of Tony.
Tony said Hugh and Tony did not tell him they were going to obtain a grant of probate in respect of their father’s estate.
On the morning of the deceased’s death, Hugh transferred $60,000 from her account into an account in his name. Tony said Hugh did not give him any documentation evidencing how that sum was to be used until the commencement of the within proceedings.
Tony said he does not believe his brothers Hugh and Sandy will well and faithfully administer the deceased’s estate. He believes they tried to influence the deceased in her preparation of the will. He does not think they will not be prepared to act in ways that conflict with their own interests in the administration of the estate. Tony said Hugh and Sandy have refused his requests for information and documents or obfuscated in relation to them, such as the deceased’s financial records, ledger book, and enduring power of attorney files. He said Hugh and Sandy rented out the family home without consulting him. He never received an inventory of the deceased’s possessions, which he said Sandy had promised him. Tony said shortly after the deceased’s funeral, due to the fraught nature of his relationship with Hugh and Sandy, he asked them to communicate with him only through their solicitors.
Tony has not applied to be an executor of the deceased’s estate. He said he believes all three sons should be passed over and an independent person be appointed to administer the estate. To that end, on 3 May 2017 he lodged a caveat on the will of the deceased.
Sandy Wilkinson
Sandy gave evidence orally and by affidavit. He said he and Tony have often been in dispute over financial affairs, but denied having ever been in dispute with the deceased over the same.
Sandy accepted that in April 2012, the deceased gave him and Hugh $50,000 each. He said between March and August 2014, the deceased gave him gifts of money totaling $65,000.
Sandy gave evidence that, in early 2014, he talked to the deceased about how she did not always record the gifts she made to her sons in her ledger book. Consequently, the deceased asked him to contact her solicitor so that she could revise her will to account for unrecorded gifts. Sandy said he typed a letter on behalf of the deceased, who signed it. Subsequently, he attended the deceased’s solicitors’ office with a letter dated 6 February 2014. The letter was admitted into evidence.
An appointment was made for the deceased to meet with Ms McEwin to change her will. On 19 March 2014, Sandy went to the deceased’s house to take her to the appointment. There, he and Hugh argued with Tony about the appointment, and the deceased’s will. Sandy said that at this time the deceased was around 87 years old, frail, and upset to see her sons fighting. He and Hugh were concerned she was beginning to exhibit signs of memory loss. They assumed they would inevitably need to take control of her financial affairs. Sandy acknowledged the deceased made further gifts to all of her sons after 19 March 2014.
Sandy gave evidence to the effect that he was concerned when he found out about the $220,000 his father loaned Tony in 2014. He said Tony transferred the money into his account while their parents were in hospital, and Hugh was with them. Sandy said that in 2016, he and Hugh, as executors of their father’s estate, instructed solicitors to initiate proceedings to sue Tony in relation to the repayment of the $220,000. He said Tony did not provide a copy of the written loan agreement until threatened with the service of proceedings. He said Tony has stopped paying interest on the loan since the death of the deceased.
Sandy said prior to late February 2015, Tony had full access to the deceased’s affairs, including exclusive access to internet banking and bank cards in his name for her accounts.
In February 2015, while Tony was overseas, Sandy and Hugh became concerned about the deceased’s condition and decided Hugh should activate the 2006 power of attorney. Sandy said he had seen both the 2006 and the 2013 powers of attorney in the deceased’s filing cabinet. He said the deceased had never asked her sons to sign the 2013 power of attorney, but accepted that by February 2015, she was in no fit state to do so. Sandy said he had seen correspondence in the deceased’s will file indicating that she had reservations about Tony having power of attorney because of his inability to manage his own affairs. He acknowledged that the deceased nevertheless instructed Ms McEwin to draw up the 2013 power of attorney.
Also in February 2015 Hugh applied to the Guardianship Board for guardianship of Graham Wilkinson. Sandy said he did not tell Tony about the application as they were not talking at the time. He said Tony was advised in writing of the application. Only Hugh, Sandy and Hugh’s wife, Lisa, were present at the guardianship hearing. Sandy said Tony was an invited party but could not recall if his absence at the hearing was expressly discussed.
In late 2015, the brothers had a series of meetings in relation to the handling of their parents’ affairs. Sandy said by that time, the meetings were the only occasions when he spoke to Tony. He described the atmosphere of the meetings as “stiff”. At the last meeting in December 2015, Tony asked Sandy and Hugh to sign the 2013 power of attorney. Sandy said he refused because he did not trust Tony to be the deceased’s power of attorney. Tony then questioned the handling of their parents’ estate by Hugh’s wife, Lisa. The meeting ended with Hugh and Lisa uninviting Tony to their daughter’s wedding. In cross-examination, Sandy conceded he refused to sign the new power of attorney because he thought it would have been unworkable. He said he did not think he and Hugh would be able to cooperate with Tony to manage the deceased’s affairs.
Sandy denied Tony’s assertion that he and Hugh prevented him from accessing the deceased’s will file until November 2017. On the contrary, he said their solicitors wrote to Tony’s solicitors in August 2017 offering to provide Treloar & Treloar with a mutual authority to release a copy of the will file to both parties.
In mid-2015 Dr Field, a neuropsychologist, examined the deceased. Sandy acknowledged that, as part of that process, he sent Dr Field a letter in which he said his mother’s memory had been slipping since February 2014. Sandy also acknowledged he knew about the $300,000 the deceased gave to Hugh in October 2014. He confirmed that on 26 June 2016, Hugh gave him $60,000 of that sum. Sandy said this was to equalise the amount the deceased had given to each of them.
Sandy said he knew about the $60,000 Hugh withdrew from the deceased’s account on the day she passed away. He said it was transferred to a trust account controlled by Hugh, and was to be used for the payment of expenses relating to the deceased’s estate. Sandy said he thought this was sensible in the circumstances. He and Hugh did not tell Tony about the withdrawal. Sandy said he knew that the deceased in her will had appointed all three of her sons as executors. Once she died her accounts would be subject to the control of all three executors. Sandy said he thought that situation would be unworkable. He gave evidence to the effect that Tony is incommunicative and unstable.
In a letter of 13 April 2017, Tony through his solicitor requested a number of documents from Hugh and Sandy in relation to their parents’ estates, including an inventory of the deceased’s belongings. Sandy said his solicitors asked Tony to clarify the basis upon which he was entitled to the requested items, but Tony never did. Sandy confirmed he never made an inventory of the contents taken from the family home. He said he supposed Tony was already familiar with those contents. Sandy said some of the documents Tony requested are documents to which Tony was not entitled, and others had already been disclosed to Tony in the course of the SACAT proceedings. Sandy said he believes that generally Tony’s demands do not advance the proper administration of the estate. He said Tony has a history of re-agitating issues that have already been dealt with.
Currently, the administration of the deceased’s estate is hindered by the within proceedings, and a caveat lodged by Tony in May 2017. Despite this Sandy said he and Hugh have tried to get on with managing their parents’ estates. In 2017, they obtained a grant of probate (with leave reserved for Tony) for their father’s estate, of which their mother is the sole beneficiary. They have warned the caveat lodged by Tony. They have removed the deceased’s belongings from the family home. Sandy said Tony was offered the opportunity to inspect those belongings and take what he wished. Sandy confirmed he and Hugh have let the family home. He said this was done to generate income, maintain the property, and address the concerns of the insurer of the property about the property being vacant. He said Tony’s solicitors were given copies of the rental agreements. Sandy understands the rental income is being paid into the trust account that Hugh opened to pay expenses relating to their parents’ estates.
Sandy said he has not spoken to Tony about the deceased’s estate since she passed away. He denied he has been abusive and disrespectful to Tony over the years but said he finds dealing with Tony problematic. He thinks Tony took advantage of his parents’ generosity during their lifetimes.
Sandy said the deceased wanted all three of her sons to act as executors of her estate. He said she told Sandy about her resentment of her own mother for making greater gifts to her brother and his children than to her and her children. She was determined to avoid that outcome for her sons. Sandy said the deceased emphasised that she did not want the Public Trustee to administer her estate. Further, Sandy said his enquiries with the Public Trustee revealed the administration of the estate may cost more than $51,707 with any tax and accounting work charged at the additional rate of $219 per hour.
Sandy said he and Hugh still intend to take a grant of probate in respect of the deceased’s estate. They intend to distribute it evenly. They will probably sell the family home. Sandy confirmed that Hugh had told him his daughter Sophie might like to buy the house. He said he has considered the option of Sophie purchasing it at market value. Sandy said he proposes to sell the family home irrespective of Tony’s opinion on the matter. He says the deceased did not want Tony to live in the house because he would allow it to become run down. In relation to the practical administration of the deceased’s estate, Sandy said he and Hugh intended to communicate with Tony in writing. If Hugh, Sandy and Tony could not reach agreement on the administration of the estate, Sandy supposed they could resolve the matter in court. Sandy confirmed he considers he does not owe any money to the estate.
Hugh Wilkinson
Hugh gave evidence orally and by affidavit. He rejected the contention that he and Sandy have irreconcilable conflicts of interest as executors of the deceased’s estate. He agreed they have often been in dispute with Tony over the years, and that he no longer speaks to Tony. He said that is at Tony’s request. He said previously his conversations with Tony ended in Tony verbally abusing and bullying him. Hugh denied that he and the deceased had been in dispute over financial affairs. He rejected the assertion that he tried to influence her in the making of her will.
Hugh confirmed that his mother gave him $50,000 in 2012.
Hugh said in 2013 the deceased decided to make a new will. He sat in on a number of the deceased’s meetings with Ms McEwin. At those meetings, the deceased also instructed Ms McEwin in relation to a new power of attorney. Hugh said Ms McEwin advised the deceased that there should be more than one person with power of attorney in case something happened to Hugh. Ultimately, the 2013 document was drafted, appointing all three sons as power of attorney. Hugh acknowledged that he was later informed by Ms McEwin that the deceased signed the 2013 power of attorney.
Hugh said on 28 November 2013 he sent an email to the deceased’s solicitors to the effect that he and Sandy disapproved of the distribution of the estate in the deceased’s draft will. He said he considered the distribution unfair based on calculations the deceased had allowed him to undertake with reference to her ledger book, cheque butts and bank statements. The appointment was made for the deceased to see Ms McEwin on 19 March 2014. Ultimately, due to the argument between her sons on that day, the deceased did not attend the appointment.
Hugh said that in September 2014, he had a conversation with the deceased about his financial position, the gifts she had made to all her sons, and the assistance Hugh had provided to the family over the years. In the course of that conversation, the deceased offered Hugh $300,000 to equalise the gifts she had given to her children. He gratefully accepted. Hugh said he took the deceased to her stockbroker whom she instructed to sell shares to procure the sum. The stockbroker gave no advice about the propriety of the transaction.
The $300,000 was transferred to Hugh on 2 October 2014. Hugh told Sandy about this, but not Tony. Hugh gave evidence that the $300,000 was a gift. He said the deceased never asked for interest to be paid on it. He said she made the gift knowing the contents of her will, including the gifts of $150,000 to Hugh and Sandy therein. He said in his family, there was a difference between loans and gifts. When loans were involved they were always documented. In this case the only records of the $300,000 transfer are the bank statements of Hugh and the deceased. Hugh gave evidence that by March 2014 he was thinking about activating the deceased’s power of attorney. He acknowledged that by October 2014, when the deceased offered him the $300,000, she was not quite her usual self. Hugh said he is not willing to consider a scenario where he has to pay back the $300,000 to the estate.
Hugh confirmed that he gave Sandy $60,000 of the $300,000. He said he did so to equalise the amount of money they had each received from the deceased.
Hugh said by February 2015, the deceased’s condition had worsened markedly. He said she looked “shattered”. She had lost her driver’s licence. He said on one occasion he visited the deceased at her home, and found that she was distressed because she could not remember whether a bill had been paid. He went into the study, and found many unopened envelopes and unpaid bills. He realised the family home was uninsured. Hugh said he asked his mother if she wanted him to invoke the power of attorney, and she responded, “Would you mind?”
On 16 February 2015, Hugh called Ms McEwin and enquired about activating the 2013 power of attorney. He said Ms McEwein advised it could not be activated unless all three sons had signed it. She advised the 2006 power of attorney was still valid, and could be activated subject to the deceased being found to lack legal capacity. Ms McEwin sent Hugh a letter dated 18 February 2015 explaining the process for activating the 2013 power of attorney. Hugh knew at the time that none of the sons had signed it. Hugh said he did not take action to activate the 2013 power of attorney because he did not believe he could manage their parents’ affairs working alongside Tony. Hugh and Sandy took the deceased to see Dr Wong, who found that she lacked capacity. Subsequently Hugh activated the 2006 power of attorney.
By the time Tony returned from overseas, Hugh had also applied to the Guardianship Board in respect of their father. Hugh said he was concerned that their father would be unprotected once the deceased, who had been granted his father’s power of attorney, had lost capacity. Hugh said he called Tony’s son Michael to ascertain when Tony would be back, but Michael did not know. Ultimately, Tony was back in Australia at the time of the hearing but was unaware of it and did not attend. Hugh said he told the Guardianship Board that Tony was overseas, and that the members said it was fine to proceed in his absence. Hugh accepted the grant of guardianship in Tony’s absence because he felt it was in his parents’ best interests. Hugh said he decided to continue as the sole power of attorney due to Tony’s behaviour upon his return from overseas. Hugh said it would have been unworkable for the three sons to manage their parents’ affairs together. He also considered there was no need to activate the 2013 power of attorney because he had already activated the 2006 power of attorney.

Hugh said that after Tony arranged for Dr Field to examine the deceased, Hugh sent Dr Field a letter dated 24 April 2015 in which he stated his mother’s memory had deteriorated significantly in recent years and that she was easily influenced by others.
Hugh acknowledged in his letter to Ms McEwin of 28 November 2013, that he said that as of June 2015, the deceased had “lent” him about $250,000. He said the deceased used the words gift and loan interchangeably. He said he used the word “lent” because it is the word the deceased used, but that what he meant was that the deceased had given him the money.
Hugh noted that on 13 September 2016 SACAT refused Tony’s application to remove him as the deceased’s power of attorney.
Hugh confirmed that on 28 March 2017, before the deceased passed away, he transferred $60,000 from her account into a trust account held separately from his other bank accounts. Hugh said he knew at that time that his authority pursuant to the deceased’s power of attorney would expire upon her death. He also knew Tony was named as an executor in the deceased’s will. Hugh considered that would put him in an unworkable position, as he would have to liaise with Tony about the payment of expenses relating to the deceased’s estate. He withdrew the $60,000 so he could use it to pay for the management of the estate without Tony’s interference. In cross-examination, Hugh was taken to a bank statement for the trust account. An entry on 31 August 2017 shows a payment of $1,430 for Hugh’s legal costs. Hugh acknowledged he had been using the money in the trust account to pay for the within proceedings. He said he considered the legal expenses were a cost of the estate. Tony’s legal expenses were not being paid out of the estate.
In relation to the documents requested by Tony after the deceased passed away, Hugh said they were mostly disclosed to Tony in the course of the SACAT proceedings. Hugh said his solicitors responded to Tony’s request for documents asking him to outline the basis upon which he made his requests.
Hugh confirmed he put the family home up for rental of his own volition, not as an executor of the deceased’s estate. He said he considered it prudent when it became clear the distribution of the estate would be protracted. Hugh agreed he did not ask Tony before letting the house. He confirmed he and his daughter are interested in buying the house. He said he would be reluctant to sell the house to Tony.
Hugh accepted that prior to these proceedings he refused to show Tony the deceased’s ledger book. He acknowledged that the deceased had calculated the total amount of money given to each of her sons in the book, as evidenced by her handwritten arithmetic in the margins. However, he said the deceased was unaware of the total amount of money she had actually given to Tony.
Hugh said he would not support Tony taking a grant of probate in respect of the deceased’s estate because he owes it money, and is therefore conflicted. Hugh accepted that if all three sons were granted probate the situation would be unworkable. He said he and Tony have barely spoken since the beginning of 2014. He said in some respects he assumed the role of executor of the deceased’s estate because, as the deceased’s power of attorney, he was used to being in control of her affairs. He said since the deceased passed away he has kept Tony informed of important developments with the estate, and proposes to do the same if granted probate. Hugh acknowledged that if Tony disapproved of something that Hugh intended to do in administering the estate, he might do it anyway. His sole focus would be to respect the deceased’s wishes, which Hugh said she had made clear in her will.
Hugh conceded he and Sandy cannot work with Tony on a practical level. He said Tony refuses to answer questions. He described Tony as bullying, belittling, overbearing, entitled and litigious. He acknowledged he and Sandy did not tell Tony they had applied for a grant of probate in respect of their father’s estate until after they had obtained the grant.
Hugh accepted his father did not request full repayment of the $220,000 loaned to Tony. He confirmed that in mid-2017 he instructed his solicitors in relation to the issuing of proceedings to reclaim the $220,000. He agreed with Sandy that Tony stopped paying interest on the $220,000 after the deceased passed away.
Lisa Powell
Dr Lisa Powell is a chartered accountant. She has been married to Hugh for 32 years. During that time she has been closely involved with his family. Since March 2015, she has helped Hugh manage his parents’ financial affairs. She said he did so with diligence and attention to detail and she believes he would be the same as an executor. She confirmed Hugh’s relationship with Tony has become increasingly distant over the past 10 years. She said between September and December 2015 she attended the meetings with Tony, Sandy and Hugh in relation to the management of their parents’ affairs and care needs. She confirmed that at the last meeting, Tony had insinuated she was not keeping the deceased’s affairs in proper order. She said that upset her. She said that Hugh and Sandy always tried to consider the requests made at the meetings by Tony. Some, in relation to their parents’ lifestyles, were satisfied. The last time Dr Powell spoke to Tony was at the funeral of one of his parents. Dr Powell said Hugh told her the deceased had given him $300,000. She said she had never discussed the gift with the deceased.
Findings of fact
It is unnecessary to resolve all the conflicts in the evidence. However, I make the following findings:
1.Hugh, Tony and Sandy are the only children of the deceased and her late husband, Graham Neil Wilkinson. Graham Neil Wilkinson died on 7 September 2016. A grant of probate was made to Hugh and Sandy on 6 July 2017.
2.The deceased made her last will on 5 November 2013. The deceased died on 28 March 2017. She was aged 89 years.
3.During her life the deceased made various payments to her children. In particular, from 2009 the deceased made regular payments to Tony. He was still in receipt of such payments in November 2013 when the deceased made her will. In April 2012 the deceased made payments of $50,000 each to Hugh and Sandy. Over time there were other payments.
4.By her will, the deceased appointed each of her sons as executors. She made specific bequests of $150,000 to each of Sandy and Hugh. She provided that her residuary estate be divided equally between Hugh, Tony and Sandy.
5.On the same day the deceased made her will she executed a Power of Attorney appointing as her attorneys Hugh, Tony and Sandy. That appointment has not been accepted by Hugh or Sandy. Subsequently Hugh exercised a Power of Attorney granted by the deceased in 2006 solely appointing him as her attorney.
6.On 28 November 2013 Hugh sent an email to the deceased’s solicitor, Ms Pam McEwin. He wrote that the deceased had recently shown him her updated will and “we seem to have a serious problem”. He wrote that it was the deceased’s intention that her estate be divided equally among her three sons. To that end she made specific bequests in her will of $150,000 each to Sandy and Hugh to “make up for all the money she had given Tony over the past decade”. This amount was said to be based on the deceased’s personal ledger which showed Tony had been given that amount more than Sandy and Hugh. Hugh wrote that Sandy and he were “rather incredulous” that it was only that much. He wrote that the deceased allowed him to do a forensic examination of her finances which disclosed that “as of June she had lent me about $250,000; Sandy about $350,000 and Tony a massive $550,000 and growing by $5,000 a month!” He wrote that his mother was very surprised and flustered and agreed that something needed to be done. He wrote that he suggested that the will should be withdrawn to incorporate a hotchpotch so that forensic accounting could be undertaken to make appropriate adjustments in the estate to ensure it was divided equally. He wrote that the deceased agreed this would offer the best solution and asked if he could contact Ms McEwin to see what could be arranged. He wrote that the deceased was getting quite frail and did not wish to go through the whole process again and hoped that the current will could be redrafted with the hotchpotch clause instead of the cash handout to Sandy and him.
7.On 6 February 2014 Sandy typed a letter addressed to Ms McEwin which was subsequently signed by the deceased. The letter gives Ms McEwin instructions to draw up an amended will that “reflects my longstanding intention that my estate be divided equally between my three sons”. The letter says that the deceased would like to adopt the hotchpotch option which would ensure that all gifts (distributions) to each son, up until the time of the execution of the will, are taken into account and verified against her records. Sandy subsequently delivered this letter to Ms McEwin’s firm.
8.An appointment was made for the deceased to see Ms McEwin on 19 March 2014. Sandy was to convey the deceased to Ms McEwin’s office. Before this could occur there was a confrontation between Tony and Sandy at the deceased’s residence. Hugh attended. As a result, the deceased failed to keep the appointment with Ms McEwin.
9.The deceased made a payment of $15,000 to Sandy on 12 March 2014. She made a further payment of $20,000 on 27 March 2014. She made a further payment of $20,000 on 8 May 2014. She made a further payment of $10,000 on 11 August 2014.
10.Graham Neil Wilkinson loaned Tony an amount of $220,000 which was recorded in writing in a loan agreement dated 1 March 2014. Interest is payable on the loan.
11.In September 2014 Hugh spoke with his mother about his personal situation including his health, employment, financial position, future plans and the assistance he had provided to the family throughout his lifetime. He also discussed the moneys that she had paid to her children and how Tony had benefited more than the other two.
12.On 2 October 2014 Hugh accompanied his mother to the offices of her sharebroker. The deceased gave instructions to sell various shareholdings and to transfer $300,000, realised from the liquidation of those assets, to Hugh. $300,000 was transferred to Hugh’s account the same day.
13.On 2 June 2015 the deceased told Dr Jane Hecker that she had loaned Hugh $300,000 to do up a house.
14.By June 2015 the deceased was suffering from dementia. The deceased’s condition had been deteriorating for at least a year if not longer by that time.
15.The relationship between Tony, on the one hand, and Hugh and Sandy, on the other hand, has broken down irretrievably. They are incapable of working together in the administration of the deceased’s estate.
Consideration
In this matter Tony identifies circumstances, namely, the payment to Hugh of $300,000 by the deceased in October 2014 and the payment to Sandy of a total of $65,000 in four instalments in the same year, which he submits call for investigation. The evidence before the Court satisfies me there is at least an issue whether the payment of $300,000 to Hugh was a loan or a gift. The deceased described it as a loan when interviewed by Dr Hecker. While in his evidence Hugh said that his mother used the words “lent” when she meant “gift”, I note that at an earlier time[27] he described the deceased as having lent him $250,000. In any event, I am satisfied that the mere assertion by Hugh that this payment was a gift rather than a loan is not conclusive of its true character. However, that is something that cannot be determined without further investigation.
[27] Email of 28 November 2013 from Hugh to Pam McEwin, Exhibit MMY2 to Exhibit P6.
Further, the fact that this payment was made by the deceased at a time when there is a question as to her capacity gives rise to issues as to whether the payment was procured by unconscionable conduct or possibly undue influence. The payment was made without the deceased obtaining independent advice. The payment was made some six months prior to Hugh writing a letter to the neuropsychologist Dr Field advising him that in recent years the deceased’s memory and decision making ability had significantly deteriorated. He wrote that the deceased’s memory had become unreliable and she appeared easily influenced by others. In my view those factors also give cause for investigation.
Further, there is a question as to whether the payment may be an ademption of the specific bequest in the will to Hugh in the amount of $150,000.
On Hugh’s evidence the payment was made some weeks after a long conversation with his mother about his situation. He says he spoke to her about his health, employment, financial position, future plans, and the assistance he had provided the family throughout his lifetime. He said he also discussed the gifts she had made to each of her sons and how Tony had benefitted more than Sandy and him. He says that it was during this conversation that the deceased offered to “give” him $300,000 to “assist with my situation”.
In Reynolds v Bonnici[28] Lindsay J said that there are at least four situations in which a valid legacy might adeem. They are:[29]
[28] [2017] NSWSC 828.
[29] [2017] NSWSC 828 at [39].
1.Where a gift of specific property prospectively made by will fails because it has been destroyed or transferred out of the ownership of the will maker upon his or her death;
2.When someone such as a parent, with an obligation to provide for another person, makes a will containing a gift to that person, but later in the lifetime of the donor makes a substantial gift to the donee, the gift inter vivos is taken to be a satisfaction pro tanto of the gift prospectively made in the will;
3.Where a will prospectively provides a gift for a particular purpose and the will maker subsequently makes inter vivos a gift for the same purpose; and
4.Where a will maker executes a will containing a gift (to be effected when, on the death of the will maker, the will becomes operative) and subsequently makes an inter vivos gift with the express intention (known to the donee at the time of acceptance of the inter vivos gift) that the inter vivos gift should adeem the testamentary gift pro tanto.
Lindsay J said the intention of the will maker is critical to the second, third and fourth types of ademption he identified. They reflect a tendency in equity to lean against “double portions”, and, in the context of provision made for children of the will maker, favour the maxim “equality is equity”. They share a common denominator in an inconsistency between a testamentary gift and an inter vivos gift, characterised as anticipatory of the testamentary gift, in circumstances in which the will maker is found to have intended that the donee receive only one gift.[30]
[30] [2017] NSWSC 828 at [42].
Hugh’s account of the conversation with the deceased at least raises the possibility that the payment was made by her because of Hugh’s personal circumstances existing at that time, being nearly a year after she had made her will. It raises the possibility that the payment may have been intended, at least in part, as an ademption. In my view it is a matter at least which requires investigation.
The need for investigation of the circumstances in which the $300,000 was paid to Hugh is reinforced by the terms of Hugh’s email of 28 November 2013 and the subsequent attempts by Hugh and Sandy to arrange for the deceased to make a new will in early 2014.
On the other hand, in my view there is insufficient evidence before the Court at present to warrant an investigation into whether the payment of $65,000 by the deceased to Sandy made in a series of payments in 2014 was a loan rather than a gift. However, these payments were all made after the deceased had made her will and in those circumstances there is also a question of whether they constitute an ademption.
For the purposes of the application for passing over, it is unnecessary to make any final determination in relation to these matters. However, it is necessary to consider the attitude of Hugh and Sandy as the propounding executors to Tony’s claim.
I consider that, for the reasons set out above, these are issues which require investigation by the executors of the deceased’s estate in accordance with their duty to bring in the assets of the estate. Both Hugh and Sandy have made clear that they do not consider that there is any possibility that they owe moneys to the estate (or, by inference that inter vivos payments made to them by the deceased constitute an ademption of the specific bequests to each of them in her will of $150,000). I am satisfied that if they take a grant of probate they will not undertake any investigation in relation to these matters. There is no evidence that they appreciate there is a conflict of interest.
In these circumstances I am satisfied there is a conflict between their personal interests and the duty to bring in the assets of the estate if they were to be granted probate. The conflict is real rather than potential. These matters render what would otherwise be a relatively simple administration into something more complex and neither Hugh nor Sandy identifies an appropriate manner of dealing with the conflict, other than the prospect that Hugh could step aside as an executor over the dispute but would not otherwise be excluded from acting as an executor. As the investigation of these issues constitutes the major component of the administration of the estate, I do not consider that to be a practical remedy for dealing with the conflict. Sandy submits that where issues arise in the administration of the deceased’s estate the executors could seek advice and directions from the Court. While of course true, such applications incur a cost to the estate. In my view the need for such applications in all likelihood would be decreased if the administration of the estate was in the hands of somebody whom Tony could be confident was not conflicted.
I accept that the passing over of Hugh and Sandy and the making of an order granting administration of the deceased’s estate to the Public Trustee will not eliminate disputation over the administration of the estate but I consider that it would reduce it. While the cost of that course is a relevant factor in determining whether to exercise the discretion to pass over, I am satisfied that in this case the cost of appointing an independent administrator may be less of an imposition on the estate than prolonged litigation involving the deceased’s sons.
Even if only Hugh and Sandy took a grant of probate I anticipate that there will be disputes between them, on the one hand, and Tony on the other, as to the administration. The evidence establishes that Hugh and Sandy have made decisions in relation to the deceased’s estate without reference to Tony, for example, the rental of the deceased’s residence. This has only served to exacerbate the mistrust Tony feels. That increases the prospect of litigation with the risk of the estate thereby being depleted.
As the reasons in Woodley demonstrate, if it is shown the history of family conflict or bitter relations between executors and the beneficiaries of an estate is likely to impact on decisions made by the executor and to leave the beneficiaries with the suspicion that the executor’s decisions will be tainted by the executor’s emotions or self interest, that may warrant the passing over of the executor.[31]
[31] [2017] WASC 94 at [49].
If all three of them took a grant of probate the administration of the estate would be rendered unworkable because of the mistrust and hostility that exists between them. The authorities provide that this can be a sufficient ground to pass over executors.[32]
[32] Woodley v Woodley (No. 2) [2017] WASC 94 at [48]; Jurkiewicz v Jurkiewicz [2013] ACTSC 89 at [13], [26]; In the Estate of Stuart (dec’d) [2009] SASC 399 at [25], (2009) 106 SASR 39 at 46-47; Tsaknis as Executor and Trustee of the Estate of Lilburne [2010] WASC 152 at [70]-[72].

These provide separate and independent bases for passing over.
While it is undoubtedly a serious matter to pass over an executor appointed by a testator or testatrix, I do not accept the submission of Hugh and Sandy that the deceased appointed all of her sons as executors knowing of the existence of the conflict between them. The evidence of conflict in this matter overwhelmingly post-dates the making of the deceased’s will.
On the other hand, I accept the submission that the Court should not countenance making an order to pass over propounding executors on the basis of a conflict between executors where one executor acts unreasonably so as to render the administration of the estate by the other executor or executors unworkable. While the Court cannot know, on the basis of the evidence presently before it, whether any of Tony’s claims can be made out, I am satisfied that the matters to which I have referred require investigation. Accordingly, I am not persuaded that it is proper to characterise Tony’s approach as unreasonable and obdurate, motivated by an unjustified hostility towards Hugh and Sandy.
For these reasons I am satisfied that an order should be made passing over Hugh and Sandy as executors of the deceased’s estate.
Appointment of the Public Trustee?
The consequential issue is whether I should make an order pursuant to s 9 of the Public Trustee Act 1995 (SA) appointing the Public Trustee as the administrator of the deceased’s estate.
Sections 9(1)(a) to (i) provide circumstances which condition the exercise of the power conferred upon the Court to make orders granting administration of the estate of a deceased person to the Public Trustee or authorising the Public Trustee to administer the estate of a deceased person.
There is no issue that the circumstances prescribed by s 9(1)(e) exist. That being so, the Court’s power to make an order pursuant to s 9(1) is enlivened. I am satisfied that it is appropriate to do so in the circumstances of this matter.
I am conscious of the evidence that the cost of the Public Trustee administering the estate would be in excess of $50,000. That is not an insignificant sum. But this is a substantial estate. While the appointment of the Public Trustee to administer the estate will not eliminate disputes between the brothers, I am satisfied it is likely to reduce the disputes. Ultimately, that may represent a saving to the estate, but more importantly, I am satisfied that the appointment of the Public Trustee will enhance the due and proper administration of the estate and protect the interests of its beneficiaries. It is a matter of concern that shortly before the death of the deceased, Hugh, exercising the Power of Attorney, transferred money belonging to the deceased into a bank account controlled by him, and has been using the proceeds to fund his and Sandy’s legal costs in this matter, notwithstanding his evidence that he is not acting in the capacity as executor of the deceased’s estate. Hugh gave evidence that this was done to avoid interference in the administration of the estate by Tony.
Conclusion
For these reasons I am satisfied that an order should be made passing over Hugh and Sandy as executors of the deceased’s estate and an order made that the Public Trustee be granted administration of the estate with the will annexed pursuant to s 9 of the Public Trustee Act 1995 (SA).