Mansour v Mansour
[2009] VSC 177
•13 May 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 9127 of 2008
| CHRISTINE ROSE MANSOUR AND ANOR | Plaintiffs |
| v | |
| JOSEPH ANTHONY MANSOUR | Defendant |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April 2009 | |
DATE OF JUDGMENT: | 13 May 2009 | |
CASE MAY BE CITED AS: | Mansour v Mansour | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 177 | |
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Administration and Probate – Widow and children executors and trustees – Life interest for widow in income of estate with residue to children – Administration complete – Widow in care – One residuary beneficiary residing in family home without paying rent and against wishes of other trustees – Conflict of interest – Welfare of beneficiaries – Removal of trustee – Possession of property.
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APPEARANCES: | Counsel | Solicitors |
| For the First Plaintiff | Ms C R McOmish | Meier Denison Guymer |
| For the Second Plaintiff | Ms G Grigoriou | McDonald Slater & Lay |
| For the Defendant | In person |
HIS HONOUR:
This is an originating motion which I heard in the Practice Court on 22 April. It concerns the estate of Joseph Mansour late of “The Crest”, Frankston who died on 14 September 1973 leaving a will dated 8 June 1972 by which his widow and two sons were appointed executors and trustees thereof, and to whom probate was granted on 22 March 1974. The plaintiffs are the widow and one of the sons while the defendant is the deceased’s other son. By an amended originating motion the plaintiffs sought the following relief against the defendant, namely:
(a)that he be removed as co-executor of the will and insofar as necessary as trustee of the estate;
(b)that he file administration accounts;
(c)that the assets of the estate vest in the plaintiffs;
(d)judgment for possession of the land known as 14 “The Crest”, Frankston and described in Certificate of Title Volume 7424 Folio 725; and
(e)costs.
At the conclusion of the argument and on the basis of reasons that I would publish later, I ordered that:
(a)the defendant be removed as trustee of the will and estate of the deceased;
(b)the assets of the estate vest in the plaintiffs as continuing trustees thereof;
(c)the plaintiffs recover possession of “The Crest” but as to which I stayed execution until and including 19 August 2009;
(d)the question of administration accounts be reserved;
(e)there be liberty to apply; and
(f)the defendant pay the plaintiffs’ costs.
I now set out my reasons for making those orders.
Evidence
The evidence is contained in the parties’ respective affidavits. In her affidavit the first plaintiff deposed to the matters referred to at [13] below and otherwise adopted the contents of the second plaintiff’s affidavit. There was no cross-examination.
The deceased’s will
The will was short and simple. As mentioned, it appointed the parties as executors and trustees of the will. It then bequeathed to his wife (the first plaintiff) a legacy of $10,000. It then left the residue of the estate on trust for sale, to pay therefrom debts, expenses and any duties and invest the net proceeds in investments authorised by law, and to pay the income therefrom to his wife during her lifetime and on her death to divide the same between his sons in equal shares or the survivor of them absolutely. It further conferred power to “postpone the sale and conversion of or to retain as if an investment authorised by law (without consideration of any question of sale) all or any part of the estate during such period as the [trustees] shall think proper”.
Assets of the estate
The deceased died possessed of the following assets:
Real Estate
(a)
A brick pair of flats at 26 The Spur, Frankston, purchased 17 May 1973, valued at
$30,000(b)
A brick pair of flats at 34 George Street, Frankston, purchased 5 April 1973, valued at
$28,950(c)
A two storey brick home and a separate unit at 14 The Crescent, Frankston, known respectively as “The Crest Home” and “The Crest Unit”, valued at
$35,000Personal Estate
Shares
$9,667
Motor car
$2,500
Mortgage investments
$22,080
ANZ
$360
Rent
$182
As to the above assets, the position since death is:
(a)The units at 26 The Spur are still held by the estate and are presently let to tenants on a total rental of $370 per week. These funds are placed in an estate bank account for the benefit of the first plaintiff.
(b)The flats at 34 George Street have been sold and the net proceeds of sale applied as follows: one unit was sold in about 1980 and the net proceeds of about $70,000 were spent on renovation and maintenance work to The Crest Home. The second unit was sold in the early to mid 1990s and the net proceeds distributed as to $35,000 to the first plaintiff and $20,000 to each of the second plaintiff and the defendant.
(c)The Crest Home is still held by the estate. The defendant resides alone in The Crest Home. I refer more particularly to the occupation of The Crest Home below.
(d)The Crest Unit is also held by the estate and is presently let to a tenant at $180 per week which is deposited to the estate bank account.
(e)Otherwise the assets have been dealt with in the course of administration of the estate.
Administration Complete
The administration of the estate has long since been completed in terms of performance of the parties’ executorial functions. Accordingly the parties now stand as trustees of the trusts in the will.[1] In that situation, if the defendant is to be removed from office, the appropriate order is that he be removed as trustee.[2]
[1]In Re Ponder [1921] 2 Ch 59.
[2]In the Estate of Dunn [1963] VR 165.
Facts
The Crest Home was the family home. The first plaintiff continued to live there until December 2002. She is now aged 92 and living in care.
Of the sons, the defendant is the elder having been born in 1948 while the second plaintiff was born in 1950.
In the early 1970s, the defendant states in early 1974, the defendant moved out of the home. In 1981 the second plaintiff left the home to marry.
The plaintiffs’ evidence is that in 1981, after about 10 years, the defendant returned to live at the home with the first plaintiff. The defendant, on the other hand, states that he came and went several times until he returned in December 1982 since when he has continued to reside at the home.
Between mid-December 2000 and mid-February 2001 the first plaintiff was resident at the Mt Eliza Centre Hospital. She deposed that during this period she gave the defendant full authority and a PIN number for him to access her accounts and pay for various accounts as they fell due and other living expenses. She deposed to having examined her bank account referrable to this period and stated that the defendant withdrew the sum of $8,300 by way of cash withdrawals. She deposed that when she was released from the Hospital she realised that her account balance with the Commonwealth Bank was down and asked the defendant for an explanation but he refused to talk to her about the matter. She believed that the defendant, who was the only person authorised to withdraw funds from her bank account and had the requisite PIN number, had withdrawn $6,000 to $7,000 without her consent or authority. In his affidavit the defendant denied the allegations and set out an account of his actions. In the absence of cross-examination I am unable to resolve this issue. It does however reflect distrust between the first plaintiff and the defendant.
In December 2002 the first plaintiff, by reason of her physical state, was urgently moved to supported accommodation at the Nepean Rehabilitation Hospital where she resided until February 2003. She then transferred to high care accommodation at Chelsea Private Nursing Home, and since April 2006 has resided at Regis Shelton Manor Aged Care Facility, Frankston.
In these circumstances, since December 2002 the defendant has been the sole occupant of The Crest Home.
Since the commencement of his occupancy in 1981 or 1982 the defendant has not paid rent in respect of his occupation of The Crest Home. Nor has he paid for household utilities referrable to The Crest Home such as insurance, municipal rates and water charges. From approximately 2004 to 2005, the defendant said from August 2004, upon repeated requests made by the plaintiffs, the defendant commenced and continues to pay for the cost of his own electricity, gas and telephone charges.
The second plaintiff and the defendant referred to the first plaintiff’s present state of health. In recent years she has progressively become more unable to support herself without aid from nursing staff. She is bedridden and currently spends her day in bed due to a lack of mobility. She suffers from chronic osteoporosis and has the aid of a mobile lifting sling which moves her from her bed to the bathroom. She is an avid reader and alert. According to the defendant the medical staff consider her organically sound. She is unlikely to return to reside in The Crest Home because she is unable to live independently.
The second plaintiff stated that he did not take an active part in the administration of the estate. Rather the first plaintiff was able to and for many years did so. The second plaintiff stated that although he and the defendant did not formally discuss these matters, they took the view that while the first plaintiff was well, she was able to manage the estate on her own.
The second plaintiff stated that all documents and papers were retained by the first plaintiff in relation to the administration of the estate and were kept in The Crest Home. He further stated that since December 2002 the defendant had refused the first plaintiff and himself access to The Crest Home. All entry by the plaintiffs in their role as executors and trustees had been monitored and controlled by the defendant since December 2002. He stated that the only access to the house since December 2002 occurred on two occasions when the first plaintiff attended with a friend (of the defendant’s choice) but they were unable to inspect upstairs. The defendant refuses to permit the second plaintiff to enter The Crest Home.
The second plaintiff deposed that for decades he had maintained all the properties that comprised or currently comprised the assets of the estate. He had undertaken or arranged for gardening tasks and landscaping tasks to be completed, maintained both the interior and exterior and undertaken any necessary repairs. In particular, since December 2002 he had arranged on a monthly basis for the lawns at The Crest Home to be cut and the cost of such maintenance works have been paid by the estate.
The second plaintiff stated that from approximately January 2003 he took on the role of collecting the rental income from the properties in the estate. The rental for the Spur units is paid directly to the real estate agent and after deduction of commission and management fees the balance is paid to the estate bank account. The rental from the Crest Unit has been paid directly into the estate account by the tenant who has occupied the premises for about 20 years.
The second plaintiff stated that he had continued to carry out all maintenance and repairs of the estate properties since the death of the deceased in order to maintain a reasonable standard. He deposed however that The Crest Home is wasting away as the defendant has allowed it to fall into disrepair and will not allow the second plaintiff or anyone else to maintain and repair it. On the last occasion that the second plaintiff was permitted to enter and view the interior of the home he observed it was cluttered with piles of newspapers to a height of as much as three feet. He deposed further that the defendant refuses to tidy up the house or the garden excluding the lawns.
The second plaintiff stated that his last visit to The Crest Home was on 29 May 2004. On this occasion he attempted to enter the property to find his mother’s taxation documents to complete her tax return and to obtain some of her clothing as she had given him a list of items and personal possessions she wanted him to retrieve for her. He continuously knocked on the door, and went around the back to try to gain the defendant’s attention, in all, he estimated, spending two hours trying to reasonably gain the defendant’s attention, but to no avail. He believed the defendant was purposefully ignoring his attempts to contact him on that occasion. He deposed that in order to gain entry to the home he entered it via the roof. The defendant called the police and then sought an intervention order against the second plaintiff; the application was dismissed.
The defendant puts this hearing on 11 June 2004 at the Frankston Magistrates’ Court. He stated that the second plaintiff had to pay legal fees and court costs totalling $1,368 which was paid from the estate trust account. It is not stated whether that payment was made pursuant to an order of the court or agreement of the parties.
Thereafter the plaintiffs and the defendant were involved in two unsuccessful mediation conferences held with the assistance of the Department of Justice, one of which occurred in 2004.
In summary, the second plaintiff deposed that the defendant had:
(a)refused to pay rent for his occupation of The Crest Home;
(b)refused to pay for municipal rates, water charges and insurance referrable to The Crest Home;
(c)refused to permit the plaintiffs in their capacity as executors and trustees to have entry to The Crest Home;
(d)refused access to the plaintiffs to obtain the first plaintiff’s personal possessions including jewellery and clothing;
(e)refused the second plaintiff’s request to obtain his personal items and possessions which remain in the home.
The second plaintiff deposed that notwithstanding repeated requests the defendant refuses to pay any rent, utility charges, municipal rates, insurance and other outgoings referrable to The Crest Home. He stated that he had tried to communicate with the defendant in writing and orally on a number of occasions, without success.
The plaintiffs sent a letter to the defendant dated 14 March 2005 in which they stated:
“Dear Tony,
It is our duty as Joint Trustees of Joseph Mansour’s estate that his will is carried out the way he would have wanted it. Mum is the only person to have a lifetime interest in the estate, not you or me. You are currently enjoying living in the family home very cheaply and we are both happy to have you there but only on certain conditions and while the estate can afford it.
These conditions are:
1.You must give us unrestricted entry when Mum or myself need to go there (that includes giving mum and myself a full set of keys to the main doors.)
2.The piles of papers must be cleaned up (fire risk to yourself and to the estate – insurance will not cover a house in this condition.)
3.You must pay some kind of rent (rent assistance is quite often give by the government to people on invalid pensions) and this may offset any rent you would pay.
4.You must also pay Water Usage.
5.You must weed garden to a satisfactory standard (I could help do cutting back etc.)
Accordingly Mum and I (and at least one or two other people) will be coming on Saturday the 26th of March from 12:30 pm (Easter Sunday), to see the house and enable Mum and myself to collect clothes and any other things we might want to do. We expect you to either be there or make arrangements for a key to be available for us to gain entry.
The papers must be cleaned up by the 30th of April 05 (I am prepared to help you do this by cleaning up and repairing garage so you can put them there).
If you are unable to meet these simple and reasonable requirements by the given deadlines, you will have to seek alternative accommodation.
We have been more than patient over the last two years and it is time to resolve this matter. Mum or myself do not need this unnecessary worry any more. We have gone to great expense to receive advice from three Solicitors, one Magistrate and State Trustees on our legal right to carry out our obligations as Trustees of my Fathers Will.
From your loving Brother and Mother,”
The letter was to no avail. The plaintiffs also engaged solicitors who wrote to the defendant on 20 October 2005. The letter required that within 60 days the defendant:
“(a) Give reasonable access to our clients to inspect the home and have access to their personal effects upon you being given reasonable notice; provide keys to all doors, and continue to give reasonable access during your use of the home; and
(b) Remove all rubbish including all piles of papers from the home (with your brother being prepared to assist with such removal); and
(c) Arrange for the garden to be brought up to an acceptable standard (again your brother is prepared to help) and then to be maintained by you; and
(d) Pay all rent and other outgoings (including water usage) relating to the home; and
(e) Sign a Licence Agreement to be prepared by our office to detail the various conditions of your use of the home.
In thirty (30) days of today’s date we will provide you with a Licence for your consideration.
Further should you not meet all the conditions set out above within sixty (60) days, your licence to use the home shall be terminated without further notice and proceedings will be commenced to seek vacant possession of the home and have you removed as a trustee of your father’s estate. Our clients also reserve all their rights to claim all necessary monies and damages from you. We recommend that you seek independent legal advice and request your solicitor to contact our office.”
The defendant wrote in response on 3 November 2005. As to this letter the second plaintiff deposed that the letter in general terms refused the request to provide access to The Crest Home and pay rental and other charges, but that he was unable to exhibit the letter as it was marked without prejudice.
On 11 May 2007 the plaintiffs’ solicitor again wrote to the defendant requiring that within 28 days he:
“a.give reasonable access to [the second plaintiff] and/or his agent, to inspect the house at 14 The Crest, Frankston and to have access to his and your mother’s personal effects at a time to be agreed upon and to provide keys to all doors;
b. remove all rubbish including all piles of papers from the home (with your brother being prepared to assist with such removal);
c. arrange for the garden to be brought up to an acceptable standard (again your brother is prepared to help) and then to be maintained by you;
d. pay rent and water usage during your sole occupation of the home (with the estate paying council and water rates plus insurance premiums); and
e. sign the enclosed Residential Tenancy Agreement and return it to our office, to detail the various conditions of your use of the home.
These requirements are considered to be reasonable and appropriate, and should you not agree to them this firm is instructed to:
i.terminate your present licence to occupy the house without further notice;
ii.commence legal proceedings seeking vacant possession of the house; and
iii.to seek your removal as a trustee of your late father’s estate.
With respect, your letter of 3rd November 2005 does not deal with the facts that the house must not be allowed to deteriorate, as it is unfair the estate bear such costs while you are its sole occupant, and that insurance cover must be maintained.
We recommend that you seek independent legal advice and ask your solicitor to contact this office.”
The defendant did not agree to the requirements in that letter.
The second plaintiff concluded his affidavit with the statement that an insurmountable impasse had been reached between the defendant on the one hand and his mother and himself on the other hand which was preventing the first plaintiff from receiving a reasonable income from the estate assets. He further stated that the defendant was in conflict as regards his role as a co-executor of the estate, he was refusing to pay any rental arising from his occupation and would not agree to vacate the home and was accordingly placing his personal financial interest ahead of his role as a co-executor and co-trustee of the estate. Furthermore, the defendant was allowing the home to deteriorate and waste as a valuable estate asset.
It is convenient now to refer to answering evidence of the defendant, in addition to that already mentioned.
I commence by referring to his understanding of how the will operated and his position under it. What he said runs in this way. By his will the deceased directed that his estate “remain” until the death of the first plaintiff, and thereafter be “converted and divided” between the second plaintiff and the defendant. The first plaintiff was to receive a life interest of “the income derived from the existing financial investments, rental investment properties and afford same for the purpose of maintaining property and summary debts”. Then, the sale of “the principal property [being The Crest Home] of the estate (in part or whole) be upon mutual agreement between the three equal Trustees and Executors and binding any alteration to the entity or status of the principal property”.
At another point in his affidavit, and before me, he referred to the first plaintiff’s life interest as being “of the pecuniary” and stated that the deceased’s clear intention was that the welfare of “any beneficiary should be the paramount consideration of the other Trustees”.
Later in his affidavit the defendant referred to the first plaintiff’s life interest as a “life interest pecuniary derived from the established rental/investment properties at the time of the deceased’s death”. Otherwise, the defendant deposed, the estate was left to the three equal trustees. And, he said, “Any alteration or change of entity to the principal property (family home) to a commercial entity or rental units to private residence requires agreement by the three equal Trustees and Executors without consideration of any question of sale”. In other words, there could be no conversion of the use of The Crest Home from the present residential to commercial, or sale of the property, unless all three trustees agreed. Self-evidently, the defendant did not agree to any such change.
A little earlier in the affidavit the defendant had described himself as “honorary caretaker of the family home (principal property)”. And he concluded his affidavit with the statement that The Crest Home had been his lifelong place of residence “in accordance with the wishes of” the deceased’s will.
The defendant proceeded to state that as honorary caretaker he provides home security and attends to domestic duties that include watering the garden twice weekly. He said that he uses little water; the point of that statement seemed to be that the cost of his water usage was not an appreciable burden on the estate and was thus not significant in the overall context. The defendant acknowledged that the estate trust account paid the water charge, rates and insurances “as it always has … being part of maintaining the Estate principal property”.
The defendant made a further point in relation to water that seemed a strange point for him to make. He said that The Crest Home and The Crest Unit had been on the same mains water meter. In early 2004 the second plaintiff had a plumber install a separate water meter for The Crest Unit. Presumably that was done in order that the estate not pay for water consumption by The Crest Unit. Assuming that to have been the intention, the common sense of so acting is overwhelming, and must have been apparent to the defendant. That the second plaintiff did not advise the defendant of the works may indicate that he feared the response that occurred. On the defendant finding the plumber at work he ordered him from the site under threat of reporting him to the police and the Plumbers Association. The plumber returned later to complete the work.
On the matter of the plaintiffs having access to The Crest Home, the defendant said that access arrangements for the second plaintiff since the first plaintiff went to hospital in December 2002 “were predicated by conduct that posed unnerving questions of character following the necessity of police intervention on three occasions between 30 December 2002 and 10 February 2003”. He referred to the confiscation of firearms which had belonged to the deceased and which the first plaintiff had given the second plaintiff “some years before”. He did not, however, say anything of the circumstances as to the confiscation of those firearms. Then, in that period, the second plaintiff had continued to engage “in verbal violence and abuse … [and] wanted to have access any time he wanted” which was “unacceptable and unreasonable to me considering the circumstances and his not having lived in the home since 1981”. The defendant stated that he had proposed that he and a mutual third party be present during access visits, and that the second plaintiff should write requesting access on a specified date and time. However, the second plaintiff never acted upon “this civilised suggestion”. The first plaintiff, he said, could have access at any time, had she been physically able, and she did have two lunch visits in 2004 with the stipulated third party; these may be taken to have been the two occasions referred to at [19] above.
At several points in his affidavit the defendant accused the plaintiffs of colluding against him, of impropriety in their actions in and towards him and concerning the administration of the estate including in paying legal fees from the estate account, and of acting without his agreement and thus wrongfully as trustees as by engaging a lawn mowing and gardening service for The Crest Home. He then complained that the lawn mowing personnel had not taken away prunings he had accumulated for six months or more in a neat pile on the side lawn. He complained that the plaintiffs had excluded him from the administration of the estate and wrongfully denied him access to documentation of the estate. He referred also to the removal of personal papers and memorabilia from the home, the suggestion apparently being, although not stated, that the plaintiffs were responsible.
Submissions
The submissions of counsel for the plaintiffs may be summarised shortly. With one exception they each contended for the same relief. The exception concerned the matter of the filing of an administration account which counsel for the first plaintiff abandoned but counsel for the second plaintiff initially pressed but ultimately abandoned. Apart from that, counsel were as one in their submissions.
The relief sought fell into the two areas of removal of the defendant as trustee and possession of The Crest Home.
As to removal, it was necessary only to remove the defendant as trustee in view of the fact that the executorial function was long since complete. It was submitted that removal was appropriate essentially because the defendant had preferred his interest to the interests of the plaintiffs in (a) refusing to pay rent and other expenses in connection with his occupation of The Crest Home, (b) preventing the estate from being able to obtain a commercial rent of The Crest Home or sell the property, and (c) failing to maintain, or allow maintenance of, The Crest Home which in consequence was in a deteriorating condition.
As to possession, the first plaintiff’s permission to occupy The Crest Home had been withdrawn, and any licence to occupy was terminated by the letter dated 11 May 2007.
For his part, before me the defendant addressed submissions to the effect of his evidence referred to above, in explanation of his position. In essence, he maintained that the will distinguished between that part of the estate which produced income for the first plaintiff, called the “pecuniary”, and “The Crest Home” which was not “pecuniary”. The Crest Home could not be converted to the “pecuniary” without the agreement of all three trustees. That is, conversion could not occur without his consent, which he had not given and plainly by his statements and demeanour he would not give. As to his right to live at The Crest Home, the defendant stated that it was the family home and the first plaintiff had said that he could live there. Also, his father intended that he live there. What all this meant was this, that unless the three trustees agreed to sell The Crest Home, or he voluntarily left, he was entitled to continue living there as honorary caretaker.
Decision
Regarding the circumstances overall, the case for removal and possession was overwhelming. I can briefly explain why.
Removal as a trustee is ordered in the inherent jurisdiction of the Court.[3] The Court is concerned with the welfare of the beneficiaries considered in light of the relevant circumstances. The matter is approached, and determined, upon the basis stated in Letterstedt v Broers[4] and Miller v Cameron.[5] See also Monty Financial Services v Delmo.[6] In Miller, Dixon J said:[7]
The jurisdiction to remove a trustee is exercised with a view to the interests of the beneficiaries, to the security of the trust property, and to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee. In deciding to remove a trustee the Court forms a judgment based upon considerations, possibly large in number and varied in character, which combine to show that the welfare of the beneficiaries is opposed to his continued occupation of the office. Such a judgment must be largely discretionary. A trustee is not to be removed unless circumstances exist which afford ground upon which the jurisdiction may be exercised.
[3]Jacobs’ Law of Trusts in Australia, Butterworths, 6th ed. [1584] at 403.
[4](1884) 9 App Cas 371 at 385-7 per Lord Blackburn.
[5](1936) 54 CLR 572 at 580-1 per Dixon J.
[6][1996] 1 VR 65.
[7]At 580-1.
What, then, does the evidence disclose? In my view, and I so find, the defendant by his conduct has manifested a fundamental failure to understand let alone meet his duties and responsibilities as a trustee and has preferred his private interest to those of the plaintiffs as beneficiaries of the trust. That is the essence of the matter. The evidence discloses and establishes the several manifestations of those failures.
It is barely necessary to set out the position in law of the plaintiffs as beneficiaries under the will. The first plaintiff is entitled during her life to the net income from the residuary estate.[8] She is also a tenant for life within the meaning of s 16(1)(f) of the Settled Land Act 1958 and as such has the power to let and sell real estate of the estate with the consent of the trustees or order of the Court,[9] and is responsible for maintenance, repairs and insurance during her life tenancy.[10]The second plaintiff is, with the defendant, a remainderman entitled to the residuary estate on the death of the first plaintiff. It is in his (and the defendant’s) interest, and the interest of the first plaintiff also, that the real estate be properly maintained and not be permitted to deteriorate in condition, both to ensure an appropriate commercial rental during the life of the first plaintiff and the value of the property for re‑sale purposes. The trustees were required to bear these fundamental positions in mind when considering the administration of the trust, including the exercise of the power to postpone sale. In exercising the power of postponement and in the administration of the trust of residue generally, the trustees were required to act in the interests of the beneficiaries considered in light of the relevant circumstances.
[8]Halsbury’s Laws of England , 4th ed., Vol. 42 [949] at 501.
[9]Sections 38 and 41.
[10]Section 88(1).
Unhappily, but I consider motivated by considerations of personal interest, the defendant adopted a view of the meaning and operation of the will that was entirely erroneous. Contrary to his view, the first plaintiff was entitled to the income from the whole of the residuary estate, the distinction between the “pecuniary” estate on the one hand, and The Crest Home on the other hand, being a figment of his imagination. (I do not overlook the power to postpone and how postponement of sale is treated in the proper administration of an estate, but postponement should of course be on proper grounds.)
In the same category was the defendant’s idea that the will provided for his continuing occupation of The Crest Home rent free.
It may be one thing for a trustee to misunderstand the nature and effect of his trust or his duties and obligations thereunder, but the present is not a mere case of a misunderstanding let alone one on an incidental aspect or other, and honestly and reasonably held. The misunderstanding here, if that be its correct description, was of the essential nature and effect of the trust and the trustee’s duties for the purpose of personal advantage, at the expense of the estate and the interests of the other beneficiaries. In that sense the defendant’s “misunderstanding” is hardly to be considered honestly held, and in my view it was not. The defendant’s actions prevented the estate from receiving an income from, or selling, The Crest Home, and thus caused loss to the estate and reduced income to the first plaintiff. His refusal to permit his fellow trustees access to The Crest Home to effect maintenance and repairs, denied the plaintiffs their lawful entitlement in that regard. By his actions and his failings he allowed the property to deteriorate in condition to the detriment of the estate and the value of the asset. He refused to pay rent and other expenses in connection with The Crest Home and refused to vacate the property, with the consequence that it could not be let or sold or maintained. And, as a result of his conduct, which constituted a denial of his duties as a trustee, an insurmountable impasse was brought about between the plaintiffs on the one hand and the defendant on the other hand which prevented the proper administration of the estate.
In my view, regarding the circumstances overall, it was in the interest of the plaintiffs as beneficiaries, and of the estate as a whole including its due administration, that the defendant be removed as a trustee of the estate.
Possession
In my view the plaintiff’s claim for possession was undeniable. His occupation of The Crest Home was without right or licence and was properly to be terminated.
Conclusion
It was for the above reasons that I made the orders referred to at [2] above.
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