Re Connock

[2021] VSC 64

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2019 04583

BARBARA FAYE CONNOCK	Plaintiff
v
RICHARD ANTHONY CONNOCK (in his capacity as executor of the estate of Dr Richard Hugh Shephard Connock)	Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 & 10 February 2021
DATE OF JUDGMENT:	18 February 2021
CASE MAY BE CITED AS:	Re Connock
MEDIUM NEUTRAL CITATION:	[2021] VSC 64

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ADMINISTRATION AND PROBATE – Executors – Removal of executor – Whether executor unfit to act in office of executor – Whether executor has conflict of interest – Where the executor is bringing an estoppel claim against a beneficiary of the estate – Where a conflict of interest exists – Where circumstances do not warrant the executor’s removal – Application dismissed – Administration and Probate Act 1958 s 34(1)(c) – Monty Financial Services Ltd v Delmo (1996) 1 VR 65 – Dimos v Skaftouros (2004) 9 VR 584 – Fysh v Coote [2000] VSCA 150.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M D Tehan	Hall & Wilcox
For the Defendant	C Gunson SC with L Hogan	John Keating & Associates

HIS HONOUR:

1. The plaintiff, Barbara Faye Connock, is the widow of Dr Richard Hugh Shephard Connock (the deceased). They married in August 2002. Both had previously been married and had children from those relationships.

1. The defendant, Richard Anthony Connock, is one of the three children of the deceased and his first wife.

1. In the interests of clarity and without intending any disrespect to the parties, I will refer to the plaintiff and defendant using their preferred names, Faye and Richard.

1. Richard is the executor of the deceased’s estate. Faye seeks orders for Richard’s removal as executor pursuant to sub-s 34(1)(c) of the Administration and Probate Act 1958 (the Act) on the basis that there is a conflict of interest between his duties as executor of the estate and his personal financial interests as both a plaintiff in a related legal proceeding and as a beneficiary of the estate.

1. Faye had initially sought orders that she, or alternatively State Trustees, be appointed executor of the estate in place of Richard. In the course of the trial, Faye abandoned her primary claim for relief and only pressed her alternative claim that State Trustees be appointed executor in place of Richard.

Background

1. The deceased died on 26 October 2017 leaving a will executed on 23 December 2014. The will appointed Faye as executor and Richard as alternate executor. Faye formally renounced her right to probate of the will in February 2018.

1. The deceased’s estate consists of cash bequests to Faye, Richard and his two sisters as well as a residual estate which is primarily a managed share portfolio, together with personal property and effects. The residuary beneficiaries of the estate are Richard and his two sisters; Faye has no interest in the residual estate.

1. Faye’s interest in the estate is…