O'Halloran v Coffey (No 2) - [2023] VSC 51

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS EQUITY AND PROBATE LIST

S ECI 2019 00898

RUTH STANISLAUS O’HALLORAN	Plaintiff
v
JOHN LAWRENCE COFFEY	First Defendant
- and -
JOHN BLANCH	Second Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2021 – 1 December 2021; 3 February 2022 – 4 February 2022
DATE OF JUDGMENT:	17 February 2023
CASE MAY BE CITED AS:	O’Halloran v Coffey (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 51

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WILLS AND ESTATES – Where plaintiff seeks passing over of herself and defendant and appointment of independent administrator – Where no grant of probate despite death of deceased nine years ago – Where plaintiff alleges conflict of interest on the part of defendant – Whether court has power to pass over a named executor – Where content of inventory of assets and liabilities in dispute – Where family members suggested by defendant considered inappropriate to be appointed administrator – Where significant conflict and acrimony between named executors – Re Munro [2018] VSC 747 – Re Arklie (No 2) [2019] VSC 350 – Re Crane (2005) 93 SASR 198 – Re Orloff (No 2) (2010) 24 VR 603 – Administration and Probate Act 1958 (Vic) s 15.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Reegan Grayson-Morison	McNab & Starke
For the First Defendant	In person
For the Second Defendant	No appearance

TABLE OF CONTENTS

Introduction and background.......................................................................................................... 1

The Will................................................................................................................................................ 2

Failed efforts to obtain a grant of probate: a summary.............................................................. 4

Litigation history................................................................................................................................ 6

Issues for determination................................................................................................................... 9

Issue 1................................................................................................................................................. 10

Mrs O’Halloran’s submissions.................................................................................................. 10
Mr Coffey’s submissions............................................................................................................ 12
Consideration.............................................................................................................................. 16

Issue 2................................................................................................................................................. 23

Mrs O’Halloran’s submissions.................................................................................................. 23
Neglect of executorial duties............................................................................................ 24
Disputation about the estate............................................................................................ 25
Conflicts of interest............................................................................................................ 25
Character............................................................................................................................. 28

Mr Coffey’s submissions............................................................................................................ 28
Consideration.............................................................................................................................. 29

Issue3................................................................................................................................................. 37

Mrs O’Halloran’s submissions.................................................................................................. 37
Mr Coffey’s submissions............................................................................................................ 39
Consideration.............................................................................................................................. 40

Disposition........................................................................................................................................ 41

HIS HONOUR:

Introduction and background

The principal controversies for determination in this proceeding are whether the Court has the power to make orders ‘passing over’ the executors of the estate of Joan Jackman Coffey (the deceased) and, if it does, whether and in what way that power should be exercised in the circumstances of the case.

The application to pass over the executors of the deceased’s estate is made in circumstances where, although the deceased died nine years ago on 17 February 2014, leaving a will made on 26 September 2008 (the Will), an application for a grant of probate has not yet been filed with the Court.

The deceased and John Michael Coffey (JM Coffey) had six children: Janice Coffey,[1] Frances Coffey, Michael Coffey and Edwina Coffey, as well as Mrs Ruth O’Halloran,[2] the plaintiff in this proceeding, and John Lawrence Coffey, who is the first defendant.[3] It would appear that Edwina is disabled, although the nature and extent of her disability is not revealed by the evidence.
[1]Who was also referred in material…

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 51
Decision Date: 17 February 2023

CaseChat Overview and Summary

The case of O'Halloran v Coffey (No 2) involved a dispute over the estate of a deceased individual, with the plaintiff seeking to have herself and the defendant passed over and an independent administrator appointed. Despite the deceased's death occurring nine years prior, there had been no grant of probate. The plaintiff alleged a conflict of interest on the part of the defendant. The central legal issues the court needed to address included whether it had the authority to bypass a named executor, the accuracy of the inventory of assets and liabilities, and the appropriateness of family members suggested by the defendant as potential administrators. Given the significant conflict and acrimony between the named executors, the court had to consider relevant precedents such as Re Munro, Re Arklie (No 2), Re Crane, and Re Orloff (No 2), as well as the statutory provisions under the Administration and Probate Act 1958 (Vic) section 15.

The court considered the historical context of the case and the ongoing disputes among the parties. It was noted that the plaintiff and defendant had a long-standing conflict, and the plaintiff's allegations of a conflict of interest by the defendant were significant. The court examined the legal framework, including the powers of the court to override named executors and the criteria for appointing an independent administrator. It also assessed the inventory of assets and liabilities, which was contested by the parties. The court was required to determine whether the suggested family members proposed by the defendant were suitable, given the existing family discord. In light of these considerations, the court had to balance the interests of the estate with the need for an impartial administration.

The court concluded that, due to the significant conflict and acrimony between the named executors, it was appropriate to pass over both the plaintiff and the defendant and to appoint an independent administrator. The court found that the allegations of conflict of interest were substantiated and that the existing family members were unsuitable due to the ongoing disputes. The court exercised its discretion under the Administration and Probate Act 1958 (Vic) to ensure the estate was administered fairly and impartially. The court also ordered that the inventory of assets and liabilities be reviewed to ensure accuracy and completeness.

The final orders included the appointment of an independent administrator to manage the estate, the passing over of both the plaintiff and the defendant as executors, and a directive for the preparation of an accurate inventory of assets and liabilities. The court's decision aimed to resolve the ongoing disputes and ensure that the estate was administered in the best interest of all parties involved.

Orders