Manocchio v Wilson - [2012] VSC 76

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. S CI 2011 06418

DENISE LESLEY MANOCCHIO	Plaintiff
v
JOHN ANTHONY WILSON	Defendant

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 JANUARY 2012
DATE OF JUDGMENT:	30 JANUARY 2012
DATE OF PUBLICATION OF REASONS:	8 MARCH 2012
CASE MAY BE CITED AS:	MANOCCHIO v WILSON
MEDIUM NEUTRAL CITATION:	[2012] VSC 76

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Probate – Application to remove co-executor – Unfitness to act – Conflict of interest and duty – Co-executor living in house without paying rent – House sole remaining asset of residuary estate to be divided equally between three siblings – Co-executor not co-operating with attempts to sell property – Unrealistic view of value of property – Administration and Probate Act 1958, s 34(1)(c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Brown	Holcroft Avery
For the Defendant	In person

HIS HONOUR:

Introduction

By an originating motion and summons filed on 25 November 2011 the plaintiff, Denise Lesley Manocchio, sought an order that her brother, the defendant John Anthony Wilson, be removed as the co-executor and trustee of the will and estate of their late father, John Ellis Wilson (“the deceased”). At the conclusion of the trial on 30 January 2012, I made the order sought. What follows are my written reasons for making that order.

The proceeding first came before me in the Probate List on 9 December 2011. The plaintiff’s application was supported by three affidavits - one by the plaintiff affirmed on 30 November 2011, one by her sister, Sandra Lee Matthews, sworn on 1 December 2011 and one by Daniel Blair Cawood, a licensed real estate agent employed by the firm PRD Nationwide (Mildura) (“PRD”), sworn on 6 December 2011. The application was adjourned to 16 December 2011 to enable the defendant to file material in opposition. He swore an affidavit on 14 December 2011. As it was not possible to conduct a trial of the matter on 16 December 2011, it was adjourned to the new year. On each occasion the proceeding was before the Court, the plaintiff was represented by counsel and the defendant appeared for himself. At the trial on 30 January 2012 both the plaintiff and the defendant were cross-examined.

The Factual Background

It is unnecessary to set out all of the history of this unfortunate dispute between the co-executors of the deceased’s estate. Nevertheless, a summary of some of that history is necessary to understand why the plaintiff’s application was granted.

The deceased died on 14 May 2009. By his last will dated 3 March 1975, the plaintiff and the defendant were appointed substitute co-executors of the deceased’s estate. The deceased left his estate to his three children in equal shares. Probate of the deceased’s last will was granted to the plaintiff and the defendant on 12 October 2009, they having engaged the firm of Maloney Anderson Legal to act on behalf of the estate. The inventory of…

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.

Continue reading Manocchio v Wilson

Details

AGLC: Manocchio v Wilson [2012] VSC 76
Case: [2012] VSC 76
Decision Date: 30 JANUARY 2012

CaseChat Overview and Summary

In Manocchio v Wilson, the application to remove a co-executor from their role was brought before the court due to concerns regarding the co-executor's unfitness to act. The dispute centred around the co-executor's failure to cooperate in attempts to sell the deceased's house, which was the sole remaining asset of the residuary estate to be divided equally between three siblings. The applicant argued that the co-executor's refusal to vacate the house and refusal to pay rent, coupled with their unrealistic view of the property's value, amounted to unfitness to act as an executor.

The court was required to decide whether the co-executor's conduct demonstrated unfitness to act as per the Administration and Probate Act 1958, specifically section 34(1)(c). This provision allows for the removal of an executor if they are unfit to act due to their conduct or circumstances. The court also needed to consider the co-executor's alleged conflict of interest and breach of their duty to act in the best interests of the estate.

In considering the application, the court held that the co-executor's actions and circumstances clearly demonstrated unfitness to act. The refusal to vacate the house and refusal to pay rent constituted a conflict of interest and a breach of their duty to act in the best interests of the estate. The co-executor's unrealistic view of the property's value further supported the conclusion that they were unfit to act. The court found that the co-executor's conduct and circumstances warranted their removal from their role. The application to remove the co-executor was therefore granted.

Orders