Lester v Lester

[2000] VSC 184

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5056 of 2000

DAVID RICHARD PELHAM LESTER AND ANOTHER	Plaintiffs
v.
RICHARD BEAUREGARD LESTER	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 MAY 2000
DATE OF JUDGMENT:	3 MAY 2000
CASE MAY BE CITED AS:	LESTER v. LESTER
MEDIUM NEUTRAL CITATION:	[2000] VSC 184

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CATCHWORDS:      Administration and Probate – Application to remove executor – Executor refusing to act – Failure to execute documents in relation to administration of deceased's estate – Administrative and Probate Act 1958, s.34.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	In Person
For the Defendant	In Person

HIS HONOUR:

1. I have before me a summons filed on an originating motion whereby two executors of an estate seek an order pursuant to s.34 of the Administration and Probate Act 1958 removing a third executor as an executor of the estate. I should say at the outset that the parties are appearing in person. However, prior to the commencement of the application, I had read all material on the court file and had made myself as familiar with the matter as I could.

1. The background to the application may be summarized as follows.  The first-named plaintiff, David Richard Pelham Lester, is a son of the deceased, Masha Lester.  The second-named plaintiff, Damien Richard Rowan Lester, and the defendant, Richard Beauregard Lester, are grandsons of the deceased. 

1. Following the death of the deceased and on 6 May 1999, the plaintiffs and the defendant were granted probate of the will and estate of the deceased.  The assets of the estate included one unit in Kooyong Road, Toorak, two units in Orrong Road, Toorak, two units in Queens Road, Melbourne, and a block of strata apartments in South Yarra.

1. The executors determined that the units in Toorak should be sold.  In due course a sale of both of them was effected.  However, as settlement of the sale of the unit in Kooyong Road approached, the defendant refused to sign the necessary transfer in respect of the sale unless he was paid a sum of $10,000 which he claimed to be an entitlement he had under the deceased's will.  It was his behaviour in that regard which prompted his father and brother to institute this proceeding in the court seeking his removal as an executor.  That they did on 13 April last.

1. In due course the defendant consulted a solicitor in relation to the matter and after receiving advice from that solicitor, agreed to sign the transfer in respect of the Kooyong Road property and in due course did so.

1. When this matter came on for hearing this morning, the first plaintiff David Lester informed me that on Sunday last the defendant Richard Lester had called on him, the parties had had a discussion concerning the administration of the estate, following the discussion had shaken hands, and the defendant had agreed to resign as an executor.

1. During the course of discussion in relation to the matter this morning, the defendant agreed that that had occurred, that he had in fact agreed to resign, but for various reasons, which it is unnecessary for me to recite in these reasons for my ruling in the matter, changed his mind.  I should perhaps say that the defendant also agreed that he had refused to sign the transfer of the Kooyong Road unit until he was paid the sum of $10,000.  He further agreed that there is friction between himself, his father and brother.

1. From the content of the court file and what has been put to me this morning by the first plaintiff and the defendant, it is clear that the present situation concerning the administration of the deceased's estate is now quite unsatisfactory.  If matters are left as they presently stand, one would have little doubt that there will be further problems concerning the administration of the estate, further problems which may well result in further applications being made to the court in relation to the matter.

1. That being the view I have formed of the situation, I consider it is quite inappropriate to allow things to remain as they are. I think that, from the evidence before me, it can properly be said that the defendant has refused to act as an executor of the estate within the meaning of s.34 of the Act and in that respect I think one need do no more than instance his actions in respect of the sale of the unit in Kooyong Road.

1. Accordingly, I am satisfied it is appropriate that he be removed now as an executor of the estate of the deceased.

1. The order of the court is that the defendant is discharged as an executor of the Estate of Masha Lester Deceased pursuant to the provisions of s.34 of the Administration and Probate Act 1958. I do not consider it is appropriate to make any further or other order in the proceeding and I do not do so.

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