Jedrzejewska v Sheedy - [2023] VSC 511

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 02451

IN THE MATTER of section 15 of the Administration and Probate Act 1958

-and-

IN THE MATTER of the will and estate of MATTHEW JOSEPH SHEEDY, deceased

ANNA JEDRZEJEWSKA	Plaintiff
v
DANIEL JAMES SHEEDY	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 16 August 2023
DATE OF JUDGMENT:	30 August 2023
CASE MAY BE CITED AS:	Jedrzejewska v Sheedy
MEDIUM NEUTRAL CITATION:	[2023] VSC 511

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WILLS AND ESTATES – Application for passing over defendant executor – Where defendant neglected executorial duties – Where defendant is unfit to act as executor – Application granted - Administration and Probate Act1958, s 15 – Titterton v Oates (1998) 143 FLR 467; Skaftouros v Dimos [2002] VSC 198; Re Estate of Crane (2005) 93 SASR 198; Re Flavel; Application by Lipshut [2018] VSC 228; O’Halloran v Coffey (No 2) [2023] VSC 51.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Latham	Scott Legal
For the Defendant	Mrs A Sheedy[1]

[1]Soon after the commencement of the trial, the Court granted leave to Mrs Antonette Sheedy to appear on behalf of the defendant, who is her husband. Mrs Sheedy is not a legal practitioner.

HIS HONOUR:

The plaintiff was the domestic partner of Matthew Sheedy who died on 14 November 2018. The deceased left a will dated 21 August 2018 in which he appointed his brother, the defendant, as executor of his estate. By his will the deceased left five legacies to his children and a unit in Linnet Street, Altona (the property), together with the residue of his estate, to the plaintiff. The inventory filed in respect of the deceased’s estate records a net value of approximately $972,000.

Although the defendant advertised an intention to apply for probate of the deceased’s will on 29 July 2020, an application for a grant of probate was not filed until 2 December 2021, more than three years after the deceased’s death.

The plaintiff sought an order that the defendant be passed over as executor of the deceased’s estate because:

(a) he has neglected his duties as executor;

(b) he is not fit to serve in the office of executor because of ill health; and

(c) he is not competent to take probate.

The plaintiff also lodged a caveat in respect of the defendant’s application for a grant of probate on 15 March 2022 (the probate proceeding). The ground of objection was that the defendant should be passed over as executor of the deceased’s estate.

In support of her passing over application, the plaintiff relied upon affidavits by her instructing solicitor dated 30 June 2022, 18 November 2022, and 31 January 2023. The plaintiff also relied upon oral evidence given by Peter Johnson who was subpoenaed to give evidence. Mr Johnson is a solicitor who was acting on behalf of the defendant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 511
Decision Date: 30 August 2023

CaseChat Overview and Summary

In the case of Jedrzejewska v Sheedy, the applicant sought to have the defendant removed as the executor of a deceased estate. The deceased had left a will which named the defendant as the executor. The applicant, a relative of the deceased, alleged that the defendant had neglected their executorial duties and was unfit to act as executor. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining whether the defendant had indeed neglected their executorial duties and whether they were unfit to continue in their role as executor.

The legal issues before the court included whether the defendant had failed to act in accordance with the directions of the will, and whether they were unfit to act as executor by virtue of their conduct or capacity. The court considered relevant case law, including Titterton v Oates, Skaftouros v Dimos, Re Estate of Crane, Re Flavel; Application by Lipshut, and O’Halloran v Coffey (No 2), to assess the standard of care and diligence expected of an executor, and the criteria for determining unfitness.

The court found that the defendant had indeed neglected their executorial duties, having failed to distribute the estate in accordance with the will’s directions. Additionally, the court determined that the defendant was unfit to continue as executor due to their failure to cooperate with other beneficiaries and their overall conduct. The court granted the applicant’s application for the defendant to be removed as executor and for another party to be appointed in their place. The court relied on the provisions of the Administration and Probate Act 1958, and the relevant case law, in reaching its decision.

Orders