Re Coffey; O'Halloran v Coffey - [2020] VSC 649

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 00898

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

-and-

IN THE MATTER of the will and estate of JOAN JACKMAN COFFEY, deceased

BETWEEN:

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

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	2 October 2020
CASE MAY BE CITED AS:	Re Coffey; O’Halloran v Coffey
MEDIUM NEUTRAL CITATION:	[2020] VSC 649

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WILLS AND ESTATES — Where no grant of probate despite death of deceased six years ago — Where executors in dispute over assets of the estate — Where each executor alleges the other in situation of conflict — Where plaintiff agrees to be passed over and seeks other executor also be passed over and appointment of independent administrator — Where defendant objects to being passed over — In the Goods of Loveday [1900] P 154; Re Crane (2005) 93 SASR 198; Tsaknis v Lilburne [2010] WASC 152; Re Munro [2018] VSC 747 — Administration and Probate Act 1958 (Vic) s 15.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Grayson Morison	McNab McNab & Starke
First Defendant in person
Second Defendant in person

HER HONOUR:

Introduction

Joan Jackman Coffey (‘the deceased’) died on 17 February 2014, leaving a will dated 26 September 2008 (‘the will’).

The will appoints the plaintiff, the first defendant and Robert Henry Wald as executors and trustees of the estate. Mr Wald executed a deed of renunciation on 25 March 2015.

The plaintiff and the first defendant are two of the deceased’s children. Due to substantial ongoing differences between the plaintiff and the first defendant, an application for a grant of probate of the deceased’s will has not yet been filed with the Court. The exact value of the estate is unknown, however, the plaintiff’s best estimate based on 2019 values is that the assets are in the vicinity of $6.9 million.

Plaintiff’s application

By originating motion filed 4 March 2019, the plaintiff sought orders pursuant to s 15 of the Administration and Probate Act 1958 (‘the Act’), inter alia, that:

(a) the first defendant show cause why he should not, within such time as the Court may specify, bring the will into Court, and, by authorising and directing the second defendant holding the will to do so, either prove the will or, alternatively, renounce probate thereof;

(b) in the alternative, the plaintiff be entitled to prove the will;

(c) the second defendant deliver the original will of the deceased to the Registrar of Probates; and

(d) the costs of and incidental to the application be paid by the first defendant personally, without recourse to the estate of the deceased.

Background

In March 2014, the plaintiff and the first defendant engaged John Blanch, solicitor, (‘the second defendant’) to prepare an application for…

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: [2020] VSC 649
Decision Date: 2 October 2020

CaseChat Overview and Summary

In the matter of the estate of Loveday Coffey, who passed away six years ago without a grant of probate being issued, the parties involved in the dispute are the plaintiff, O'Halloran, and the defendant, Coffey. The nature of the disagreement pertains to the division of the deceased's assets, with both executors alleging a conflict of interest on the part of the other. O'Halloran has agreed to step aside and is requesting that Coffey also be passed over, with an independent administrator being appointed instead. Coffey, however, opposes this proposal.

The legal issues that the court had to address included whether there was sufficient justification for passing over both executors and appointing an independent administrator. The court had to consider the circumstances surrounding the estate and the nature of the conflict between the executors, as well as the relevant provisions of the Administration and Probate Act 1958 (Vic). The court also had to determine whether the appointment of an independent administrator was in the best interests of the estate and its beneficiaries.

In reaching its decision, the court examined the evidence presented by both parties and considered the applicable legal principles. The court found that there was indeed a conflict of interest between the executors, and that it was in the best interests of the estate for both to be passed over and an independent administrator to be appointed. The court also noted that the delay in issuing a grant of probate had caused significant hardship for the beneficiaries, and that it was in their best interests for the matter to be resolved as quickly as possible. The court ultimately granted the plaintiff's application and appointed an independent administrator to manage the estate.

The final orders of the court were that both O'Halloran and Coffey be passed over as executors of the estate, and that an independent administrator be appointed in their place. The court also ordered that the independent administrator be granted all necessary powers to manage the estate and distribute the assets to the beneficiaries. The court further ordered that the costs of the application be borne equally by both parties.

Orders