Re Graham
[2025] VSC 393
•2 July 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2024 04740
IN THE MATTER of the estate of RODGER DONALD FRANCIS GRAHAM, deceased
- and -
IN THE MATTER of section 34 of the Administration and Probate Act 1958 (Vic)
- and -
IN THE MATTER of section 48 of the Trustee Act 1958 (Vic)
BETWEEN:
| KRISTY LEE GRAHAM | Plaintiff |
| v | |
| ANDREW ALISTER GRAHAM and JENNIFER ANNE TRENORDEN (who are sued as Executors of the Estate of RODGER DONALD FRANCIS GRAHAM, deceased) | Defendants |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 May 2025 |
DATE OF JUDGMENT: | 2 July 2025 |
CASE MAY BE CITED AS: | Re Graham |
MEDIUM NEUTRAL CITATION: | [2025] VSC 393 |
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WILLS AND ESTATES — Section 34 of the Administration and Probate Act 1958 (Vic) and s 48 of the Trustee Act 1958 (Vic) — Removal of executors and trustees of the estate on the basis that they are unfit to remain — Significant lapse of time since probate granted — Multiple firms of solicitors retained over time with consequent cost to the estate — Delay in administration of estate due to executors refusal to comply with terms of settlement deed — One executor no longer wishes to remain executor and trustee — Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Newton of counsel | Maurice Blackburn Pty Ltd |
| For the Defendants | Mr G McCormick of counsel | Goldsmith Lawyers |
TABLE OF CONTENTS
Introduction................................................................................................................................... 1
Background facts........................................................................................................................... 1
The related proceedings............................................................................................................... 3
The estate’s engagement of solicitors and the legal fees incurred......................................... 5
AndrewGraham’s evidence...................................................................................................... 10
JenniferTrenorden’s evidence.................................................................................................. 12
Relevant legislation and principles.......................................................................................... 13
Plaintiff’s submissions................................................................................................................ 14
Defendants’ submissions........................................................................................................... 16
Consideration.............................................................................................................................. 19
Conclusion.................................................................................................................................... 21
HIS HONOUR:
Introduction
Kristy Lee Graham has applied under s 34 of the Administration and Probate Act 1958 (Vic) (APA) and s 48 of the Trustee Act 1958 (Vic), to remove Andrew Alister Graham and Jennifer Anne Trenorden as the executors and trustees of the estate of Rodger Donald Francis Graham (the deceased).[1] The deceased is Kristy’s late father. Kristy’s removal application was made on the basis that Andrew and Jennifer are unfit to remain as the executors of the estate, given their failure to ensure the efficient and timely administration of the estate.
[1]Given the familial relationship between the parties and the common family name of the plaintiff and the first defendant, to avoid any confusion I have used the parties first names in this judgment. No disrespect is intended.
Andrew and Jennifer are the deceased’s brother and sister. Both opposed Kristy’s application. At the hearing, however, Jennifer informed the Court that she no longer wished to be an executor and that the best course would be for the Court to appoint an independent executor to finalise the estate.
For the reasons given below I have decided that Andrew and Jennifer should be removed and that an independent executor should be appointed.
Background facts
Rodger Donald Francis Graham died on 5 March 2018. He was survived by:
(a) his domestic partner, Werlita Rabago Bacus;
(b) his son Paul Roger Graham;
(c) his daughter Kristy Lee Graham, the plaintiff;
(d) his son, Matthew Tober;
(e) his son Bernard Adam Graham; and
(f) his son Rodger Jake Graham.
By his will dated 5 July 2017 the deceased appointed his siblings Andrew and Jennifer executors and trustees.
The deceased’s Will made the following dispositions:
(a) the sum of $30,000 to Matthew;
(b) the sum of $50,000 to Sean Joseph Trenorden, the son of Jennifer;
(c) the sum of $50,000 to Megan Mary Trenorden, the daughter of Jennifer;
(d) the Tasmanian Cray Fishing Licence Number 261 (including all entitlements and quotas) (the Tasmanian Licence) and the Victorian Cray Fishing Licence Number RL69 to Paul, Tex Isaac Graham (the deceased’s grandson and Paul’s son) and Werlita as tenants in common in equal shares;
(e) the property at 17 Connemarra Court, Portland to Werlita; and
(f) the residuary estate to Bernard, Rodger and Kristy as tenants in common in equal shares.
On 21 March 2019 probate was granted to Andrew and Jennifer.
The inventory of assets and liabilities filed by Andrew and Jennifer in support of their application for probate showed a total gross value of the estate of $10,551,242.01 with total liabilities of $152,603.33.
The deceased was a commercial fisherman who conducted his affairs through a family trust, the Rodgheath Family Trust. The Rodgheath Family Trust was settled by the Rodgheath Trust Deed on 30 December 1977. Patricom Pty Ltd, incorporated on 20 December 1977, has been the trustee of the Rodgheath Family Trust since its inception.
From 20 December 1977 to 16 March 2018 the deceased was a director and the guiding mind of Patricom. Andrew and Jennifer were, until 29 November 2024, directors of Patricom following their appointments on 7 December 2018 and 16 March 2018 respectively. Both were appointed directors in the weeks and months after the deceased’s death. The deceased, with two shares, and Jennifer, with two shares, are the current shareholders of Patricom.
Kristy’s evidence was that, despite being gifted by the deceased in the Will, in 2017 the deceased sold his interest in the Tasmanian Licence and associated entitlements to Paul. The Tasmanian licence and entitlements were transferred to Paul prior to the deceased’s death.
There was, however, controversy surrounding the transfer of the Tasmanian Licence. Kristy admitted that Paul had signed relevant transfer documentation on behalf of the deceased. As will be seen, whether or not the Tasmanian Licence was now Paul’s, the estate’s or Rodgheath Family Trust’s asset consumed considerable time and resources in the administration of the estate.
The related proceedings
On 17 September 2019 Kristy commenced proceeding S ECI 2019 04233 seeking an order for further provision from the deceased’s estate pursuant to Pt IV of the APA (Kristy’s Pt IV claim). Kristy discontinued her Pt IV claim on 18 June 2021.
On 22 June 2020 Patricom commenced proceeding S ECI 2020 02680 (the Trust proceeding) against Paul seeking, among other things, to recover the quotas and entitlements associated with the Tasmanian Licence. Paul filed a defence on 24 August 2020. On 25 June 2021 the Court adjourned the trust proceeding pending the resolution of proceeding S ECI 2020 04022. As noted below, proceeding S ECI 2020 04022 resolved when Moore J made orders in a related enforcement proceeding on 12 November 2024. As a result of those orders, Andrew and Jennifer were replaced as directors of Patricom by Richard Anderson, Kristy’s husband. On 13 May 2025, I ordered by consent that the Trust proceeding be dismissed.
On 22 June 2020 Andrew and Jennifer in their capacities as executors commenced proceeding S ECI 2020 02651 (the estate proceeding) against Paul in his personal capacity and as trustee of the Paul Graham Family Trust, seeking among other things, to recover the Tasmanian Licence, including its quotas and entitlements. Paul filed a defence in the estate proceeding on 4 November 2020. On 25 June 2021 the Court adjourned the estate proceeding pending the resolution of proceeding S ECI 2020 04022, which has now resolved. On 20 March 2025 I ordered that the estate proceeding be adjourned pending the outcome of this proceeding.
Proceeding S ECI 2020 04022 was commenced by Patricom against Heather Jean Churchill and Anthony Craig Olver (the Churchill and Olver proceeding). Ms Churchill is the deceased’s former wife and the mother of Paul and Kristy. Ms Churchill, in her capacity as appointer of the Rodgheath Family Trust had sought to remove Patricom as trustee and to appoint Mr Olver as trustee. Patricom disputed the validity of Ms Churchill’s actions and commenced the proceeding seeking declarations regarding the proper trustee of the Rodgheath Family Trust. The proceeding was resolved by deed of settlement dated 12 February 2024. However, Andrew and Jennifer, in their capacities as directors of Patricom, did not comply with the deed. As a result Churchill commenced proceeding S ECI 2024 01973 against Andrew and Jennifer to enforce the deed (the enforcement proceeding). On 12 November 2024 Moore J made orders enforcing the deed. Andrew and Jennifer represented themselves at the hearing before Moore J.
On 11 January 2020 Jake commenced an application under Pt IV of the APA in proceeding S ECI 2020 00361 (Jake’s Pt IV claim). Jake’s Pt IV claim was adjourned pending the resolution of proceeding S ECI 2020 04022. Jake’s Pt IV claim was listed on 17 June 2025 following Andrew and Jennifer indicating to the Court on 10 September 2024 that they intended to make an application that the proceeding be dismissed for want of prosecution.
On 2 September 2021 Andrew and Jennifer commenced proceeding S ECI 2021 03200 against the estate’s former lawyers, Fitzpatrick Legal (the Fitzpatrick Legal proceeding), seeking a taxation of costs. The estate’s engagement of various lawyers is discussed further below. The Fitzgerald Legal proceeding was resolved at mediation and finalised by the Court’s orders made on 10 May 2022. Under the mediation agreement the estate paid Fitzgerald Legal the sum of $251,937.84 (not including disbursements).
On 9 September 2024 Kristy commenced this proceeding seeking orders removing Andrew and Jennifer as executors of the deceased’s estate.
The estate’s engagement of solicitors and the legal fees incurred
One basis upon which Kristy argued that Andrew and Jennifer were unfit to remain as executors and trustees was that they had engaged on behalf of the estate, numerous firms and incurred significant legal costs. Additionally, Kristy argued that Andrew and Jennifer in either their capacity as executors and trustees or as directors of Patricom had unnecessarily and imprudently commenced and delayed in the running of several of the related proceedings.
Andrew and Jennifer submitted that their capacity to progress the administration of the estate was stymied by Kristy and Jake’s Pt IV claims and the Court’s adjournment of the trust proceeding and the estate proceeding pending the outcome of the Churchill and Olver proceeding. Andrew and Jennifer submitted that they had not acted recklessly but had obtained and followed counsel’s advice before commencing the estate and trust proceedings.
Andrew and Jennifer, in their capacity as executors of the estate have engaged six separate law firms to act on their behalf in the administration of the estate:
(a) Fitzpatrick Legal – 17 May 2018 to September 2020;
(b) Maddens Lawyers – September 2020 to August 2023;
(c) Melville Orton & Lewis Solicitors – August 2023 to 22 February 2024;
(d) Harwood Andrews Lawyers – 25 March 2024 to 25 June 2024;
(e) Senia Lawyers – 25 July 2024 to October 2024; and
(f) Goldsmiths Lawyers – 26 November 2024 to date.
The deceased’s Will was executed before a solicitor and legal secretary at the firm of HBH Legal in Portland. That firm had undertaken legal work for the deceased prior to his death and for a number of months following his death. Andrew and Jennifer decided not to continue the estate’s engagement of HBH Legal because HBH Legal had acted for an acquaintance of theirs who was also a fisherman who told them he was unhappy with their service. Andrew and Jennifer ended the retainer of HBH Legal on 30 May 2018.
On 17 May 2018 Andrew and Jennifer in their capacities as executors of the estate, engaged Fitzpatrick Legal to act on behalf of the estate. Fitzpatrick Legal acted for the estate until September 2020. Andrew and Jennifer understood that the deceased had previously engaged Fitzpatrick Legal and been happy with their service. Fitzpatrick Legal carried out extensive work for the estate including in relation to the application for the grant of probate, Kristy’s Pt IV claim, the estate proceeding and Jake’s Pt IV claim. Andrew and Jennifer ended their engagement of Fitzgerald Legal because they were unhappy with the progress of administration of the estate, the estate proceeding, Kristy’s Pt IV claim and Jake’s Pt IV claim. In addition, Andrew and Jennifer thought that Fitzpatrick Legal’s fees were significant and they had received correspondence from Kristy that she was unhappy with the amount of money that the estate was spending on lawyers.
As noted above, a central concern of the estate was whether the Tasmanian Licence had been validly transferred to Paul or whether it remained the property of the estate. If the Tasmanian Licence remained property of the estate, under the terms of the Will, it was to be gifted to Paul, Tex and Werlita as tenants in common in equal shares. There was no dispute that the estate had obtained counsel’s advice before commencing the estate proceeding. In that advice counsel had indicated that on the documentation available the Tasmanian Licence was most probably owned by the estate and the Rodgheath Family Trust. Counsel concluded that in these circumstances, mediation between the estate, Rodgheath Family Trust, Paul and the other relevant beneficiaries, particularly Werlita and Tex, offered the best means of avoiding a complex, protracted and expensive probate dispute.
Andrew’s evidence was that while the estate had the benefit of counsel’s advice, he and Fitzpatrick Legal had made only limited enquiries of Werlita about whether she wanted the estate to bring the estate proceeding to recover the Tasmanian Licence from Paul. Andrew said that Werlita told him that she did not wish to participate in mediation and was content to leave the outcome of the estate proceeding to the judge. Andrew’s evidence was that he left the question and organisation of any mediation of this proceeding in the hands of the estate’s lawyers but that neither Fitzpatrick Legal nor later, Maddens Lawyers, had an appetite to mediate.
No enquiries were made of Tex, who was an unrepresented minor, prior to the commencement of the estate proceeding. Andrew was unaware of any attempts by Fitzpatrick Legal to interview family members about the circumstances of the transfer of the Tasmanian Licence to Paul.
As events transpired the parties did not attempt to mediate the estate proceeding or the trust proceeding. Neither progressed further than the filing of pleadings before the Court adjourned both proceedings pending the outcome of the Churchill and Olver proceeding. The outcome of the Churchill and Olver proceeding, after the related enforcement proceeding, saw Andrew and Jennifer replaced as directors of Patricom. On 13 May 2025, with the consent of Patricom under its new directorship, I dismissed the trust proceeding.
The total amount billed by Fitzpatrick Legal and counsel engaged to provide advice regarding the Tasmanian Fishing Licence was $321,937.84. As stated above this bill was the subject of the Fitzgerald Legal proceeding which resolved at mediation with the Fitzpatrick Legal agreeing to forgo the sum of $70,000, leaving legal costs of the estate from the work undertaken by Fitzpatrick Legal at $251,937.84.
Andrew and Jennifer engaged separate lawyers to act for them in their capacity as directors of Patricom. These separate lawyers commenced the Trust claim and the Churchill and Olver proceeding.
Andrew and Jennifer, in their capacity as executors, next engaged Maddens Lawyers from September 2020 until August 2023. Maddens Lawyers represented the estate in the estate proceeding, Jake’s Pt IV claim and the Fitzpatrick Legal proceeding. In cross-examination Andrew agreed that he was informed in June 2021 that Kristy was not pursuing her Pt IV claim and that Kristy’s Pt IV claim did not hold up the administration of the estate. During this period Andrew and Jennifer, in their capacity as directors of Patricom, continued to be represented by separate solicitors in the Trust proceeding and the Churchill and Olver proceeding.
Andrew’s evidence was that other than he and Jennifer filing affidavits in Jake’s Pt IV claim in early 2021, nothing further was done in that proceeding until late 2024 when Andrew and Jennifer foreshadowed an application to have Jake’s Pt IV claim dismissed. Andrew denied that Maddens Lawyers had informed him and Jennifer in mid-2023 that Jake was not pursuing his claim. He said that he had tried without success to get Maddens Lawyers to finalise Jake’s Pt IV claim in 2023.
Andrew and Jennifer said that their current solicitors, Goldsmiths Lawyers have reviewed the Maddens Lawyers file and drawn their attention to numerous letters sent by beneficiaries, including Kristy, to Maddens Lawyers which remained unanswered. Andrew and Jennifer said that they did not know why Maddens Lawyers did not respond to these letters and that during their engagement Andrew and Jennifer relied on Maddens Lawyers to respond to correspondence in a timely manner.
Andrew and Jennifer ended their engagement of Maddens Lawyers in August 2023 because, despite instructing to Maddens to progress matters, they were unhappy with the progress of the administration of the estate. Andrew disagreed with the suggestion contained in an email sent by Maddens Lawyers on 3 October 2023 to Andrew and Jennifer that progress had stalled because Andrew and Jennifer had not responded to repeated requests for instructions.
As at 29 November 2021 Andrew and Jennifer deposed that they expected the estate would incur approximately $150,000 to $200,000 in legal costs as a result of the work of Maddens Lawyers. As at 10 February 2025 the estate had incurred legal costs for work done by Maddens Lawyers in the sum of $171,570,.15. Maddens Lawyers had represented the estate in the estate proceeding (now discontinued), the Fitzpatrick legal proceeding (resulting in a $70,000 discount to legal costs) and Jake’s Pt IV claim (which has been adjourned pending the outcome of this proceeding, with the estate foreshadowing an application to dismiss the proceeding).
After Andrew and Jennifer ended their engagement of Maddens Lawyers they met with Wightons Lawyers, however they did not proceed to formally engage that firm.
Andrew and Jennifer, as executors of the estate, engaged Melville Orton & Lewis Solicitors (MOL Solicitors) in August 2023. MOL Solicitors did not receive the file from Maddens Lawyers until December 2023. At this time MOL Solicitors were acting for the Rodgheath Family Trust and Andrew and Jennifer were advised by their solicitors that they could act for both the estate and the Trust. Andrew and Jennifer were advised by MOL Solicitors that they could not distribute the estate pending the resolution of Jake’s Pt IV claim.
Initially Michael Fuller was the solicitor at MOL Solicitors working on Andrew and Jennifer’s matters. However Mr Fuller left the firm in January 2024 and was replaced by Noel Kennedy. Andrew and Jennifer said they had the impression that Mr Kennedy was disengaged and disinterested in working on their matters and they were unhappy with the way he spoke to them. MOL Solicitors ceased acting for Andrew and Jennifer in February 2024.
The estate incurred legal costs of $1,763.71 as a result of the work undertaken by MOL Solicitors.
The estate next engaged Harwood Andrews who represented the estate from 25 March 2024 until 25 June 2024. Harwood Andrews reviewed tens of thousands of pages of documents concerning the estate and the related proceedings and provided advice regarding the estate’s administration. Harwood Andrews invoiced the estate $26,792.39 for legal work undertaken for the estate.
Vision Overseas Group Lawyers, trading as Senia Lawyers acted for the estate and the Rodgheath Family Trust from 25 July 2024 to October 2024. Their work included reading through the extensive material obtained from the previous solicitors and filing material in the enforcement proceeding. Senia Lawyers ceased acting approximately ten days before the hearing in the enforcement proceeding before Moore J. Senia Lawyers invoiced the estate $4,020.50 for work undertaken on behalf of the estate.
Andrew and Jennifer engaged Goldsmiths Lawyers on 26 November 2024 to act on behalf of the estate. The work undertaken by Goldsmiths Lawyers has included reviewing the files obtained from the estate’s previous lawyers and the related proceedings and providing advice as well as preparing a second accounting of the estate in response to the Court’s orders made 16 December 2024 and a third accounting to update the second accounting. Goldsmiths Lawyers have also filed a summons in Jake’s Pt IV claim seeking self-executing dismissal orders. Goldsmiths Lawyers represented the estate in Kristy’s removal application.
Up to 10 February 2025 Goldsmiths Lawyers had invoiced the estate $63,666.60 for work undertaken for the estate. Andrew and Jennifer expect to be invoiced a further $92,134.48 for other as yet not invoiced legal work undertaken by Goldsmiths Lawyers on behalf of the estate.
Andrew said that in the administration of the estate he relied on his solicitors’ advice but that he could overrule his solicitors on ‘small things’.
AndrewGraham’s evidence
Andrew’s evidence was that Patricom commenced the Churchill and Olver claim on the advice of Patricom’s lawyers to stop Mr Olver being appointed trustee of the Rodgheath Family Trust. He agreed that this proceeding was commenced in October 2020 and that in December 2020 Ms Churchill’s solicitors offered to settle the proceeding on the basis that an independent trustee be appointed rather than Mr Olver. Andrew agreed that this proceeding was settled in February 2024 when the settlement deed was signed, more than three years after this offer was made, on the basis that an independent trustee would be appointed. When asked why it had taken so long to agree to a solution that had been proposed as early as December 2020 Andrew’s evidence was that his lawyers had advised him against agreeing to Ms Churchill’s proposal. As I understood Andrew’s evidence, it appears that from December 2020 a number of potential independent trustees were canvassed and that he and Jennifer did not think any were suitable before a settlement was finally reached in February 2024.
Andrew said that he settled the Churchill and Olver claim on the advice of his solicitor, Mr Kennedy at MOL. He described Mr Kennedy as a very grumpy person who ‘didn’t really want to be there’ and who didn’t give ‘great legal advice’. Andrew said that after he settled the proceeding he and Jennifer did not go back to Mr Kennedy for advice ‘because he wasn’t very polite to us’.
Andrew said that after signing the deed of settlement he and Jennifer thought they should not have to give the estate’s shares in Patricom away and that they would have preferred the trustee of Rodgheath Family Trust to be someone from within the family. He sought advice from Senia Lawyers and KCL Lawyers.
Senia Lawyers gave advice to Andrew and Jennifer in relation to the enforcement proceedings that had been commenced against them by Ms Churchill to enforce the deed of settlement. Andrew said that five days before the hearing Senia Lawyers produced a short affidavit for him and Jennifer, the contents of which he did not agree with, leading to Senia Lawyers informing Andrew and Jennifer that they would no longer act for them. Senia Lawyers told Moore J during the course of the enforcement proceeding hearing that they withdrew their representation because they were not able to obtain appropriate instructions from Andrew and Jennifer. Andrew denied this was the case.
Andrew and Jennifer obtained a short adjournment of the enforcement proceeding to obtain new legal representation. They approached KCL Lawyers who advised Andrew and Jennifer that they had a good case to not comply with the settlement deed. Andrew’s evidence was that KCL Lawyers walked out on Andrew and Jennifer about five days before the final hearing before Moore J.
JenniferTrenorden’s evidence
Jennifer was asked about the trust proceeding and the estate proceeding and, in particular, whether she recalled taking any steps to ascertain Werlita’s views about whether to pursue those proceedings. Jennifer’s evidence was that she did not recall hearing anything from Welita’s lawyers or the estate’s lawyers making those enquiries. Jennifer did not recall knowing whether Tex supported the estate pursuing the proceeding against Paul. Jennifer also did not recall receiving written advice from her counsel in the estate proceeding that the estate should attempt to resolve the proceeding at mediation.
When asked about the length of time taken to resolve the Churchill and Olver claim, Jennifer’s evidence was that she could not recall taking steps to instruct her solicitors. Jennifer said she signed the deed of settlement resolving the Churchill and Olver claim but that her solicitor had not explained the deed to her adequately and that her signature had not been witnessed correctly. She said that she and Andrew were not represented at the hearing of the enforcement proceeding before Moore J and that she found it impossible to understand what was going on.
When asked whether she wished to continue as an executor of the estate Jennifer answered that she did not. Jennifer stated that she is now seventy-three years old and her memory is not good. She agreed with Kristy’s counsel’s suggestion that the best thing would be to appoint an independent executor and trustee to finish the administration of the estate
Relevant legislation and principles
Section 34 of the APA provides:
(1)Notwithstanding anything contained in any Act where an executor or administrator to whom probate or administration has been granted whether before or after the commencement of this Act or where an administrator who has been appointed under this section or any corresponding previous enactment—
(a) remains out of Victoria for more than two years;
(b)desires to be discharged from his office of executor or administrator; or
(c)after such grant or appointment refuses or is unfit to act in such office or is incapable of acting therein—
the Court upon application in accordance with the Rules of Court may order the discharge or removal of such an executor or administrator and also if the Court thinks fit the appointment of some proper person or trustee company as administrator in place of the executor or administrator so discharged or removed upon such terms and conditions as the Court thinks fit; and may make all necessary orders for vesting the estate in the new administrator and as to accounts and such order as to costs as the Court thinks fit.
(2)Notice of such application may be served if the Court thinks it necessary upon such persons as it directs.
(3)An executor or administrator so removed or discharged shall from the date of the order cease to be liable as such for acts and things done after that date.
(4)Upon such appointment the property and rights vested in and the liabilities properly incurred in the due administration of the estate by the executors or administrators so discharged or removed shall become and be vested in and transferred to the administrator appointed by such order who shall as such have the same privileges rights powers duties discretions and liabilities as if probate or administration had been granted to him originally.
The principles guiding the exercise of the Court’s discretion to remove an executor under s 34(1)(c) of the APA were considered by Ashley J in Monty Financial Services Ltd v Delmo,[2] who after surveying the authorities identified that they all involved ‘misconduct or neglect of duty by the executor in the period between grant of probate and application for removal’. Ashley J continued:
…The misconduct or neglect was constituted by matters such as unwarranted delay in administration of the estate, failure to communicate with beneficiaries, failure to account, and unreasonable delay in paying beneficiaries their entitlement…. I find it impossible to accept that serious dereliction of duty as an executor does not make that person unfit to hold the office. It cannot matter whether the dereliction is born of intent, of carelessness, or of incompetence. In each case the actual or potential deleterious effect upon the estate and the beneficiaries is the same.
[2][1996] 1 VR 65, 73.
In Dimos v Skaftouros,[3] the Court of Appeal endorsed Ashley J’s analysis and construction of s 34(1)(c) of the APA as clearly correct.
[3](2004) 9 VR 584, [114] (Dodds-Streeton AJA with Winneke P and Batt JA agreeing).
Section 48 of the Trustee Act 1958 (Vic) provides:
(1)The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient difficult or impracticable so to do without the assistance of the Court, make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
In particular and without prejudice to the generality of the foregoing provision, the Court may make an order appointing a new trustee in substitution for a trustee who is convicted on indictment of any offence, or is a patient within the meaning of the Mental Health and Wellbeing Act 2022, or is a bankrupt, or is a corporation which is in liquidation or has been dissolved.
(2)Nothing in this section gives power to appoint an executor or administrator.
In Miller v Cameron,[4] the High Court considered the Court’s power to remove a trustee, and the circumstances which would motivate its exercise:
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.
[4](1936) 54 CLR 572, 580-581 (per Dixon J).
Plaintiff’s submissions
Counsel for the plaintiffs submitted that:
(a) The estate proceeding was commenced approximately five years ago and remains outstanding pending the outcome of this proceeding. This proceeding was previously adjourned pending the outcome of the Churchill and Olver claim which was, in turn, adjourned pending the determination of the enforcement proceeding.
(b) Andrew and Jennifer, as directors of Patricom, commenced the trust proceeding which was also previously adjourned pending the outcome of the Churchill and Olver claim which was, in turn, adjourned pending the determination of the enforcement proceeding. The trust proceeding was dismissed by consent on 13 May 2025 at which time Andrew and Jennifer had been replaced as directors of Patricom.
(c) The finalisation of the Churchill and Olver claim was a significant reason for the delay in the progress of the administration of the estate because it led to the adjournment of major litigation commenced by Andrew and Jennifer. They defended that proceeding for some three years and then capitulated by agreeing to a settlement which removed Patricom as trustee of the Rodgheath Family Trust. Andrew and Jennifer then failed or refused to observe the deed of settlement which necessitated the commencement of the enforcement proceeding.
(d) Andrew and Jennifer represented themselves in the enforcement proceeding. They resisted the application for orders to enforce the settlement deed. The Court determined that the orders sought against Andrew and Jennifer should be made. The Court ordered Andrew and Jennifer to pay the costs of that proceeding on an indemnity basis.
(e) The above circumstances indicate that the progress of one significant proceeding, commenced five years ago by Andrew and Jennifer on behalf of the estate and another significant proceeding commenced by them as directors of Patricom, were frustrated by the improper conduct of Andrew and Jennifer in pursuing the Churchill and Olver claim, which claim they ultimately abandoned or conceded after three years and then refused to carry out their obligations under the deed of settlement.
(f) This conduct of Andrew and Jennifer has held up the administration of the estate to the extent that there is no indication when the estate might be able to be finalised.
(g) There is no satisfactory explanation why the estate has been tied up in litigation for more than four years with virtually no progress in its administration, but very significant legal fees incurred.
(h) There is no explanation why the estate has not facilitated or organised mediation notwithstanding numerous opportunities to bring the affected parties together in an effort to resolve the litigation.
(i) There is no evidence that Andrew and Jennifer have tried to liaise with the beneficiaries affected by all the litigation about whether they support the claims being brought by them.
(j) The total costs incurred by Andrew and Jennifer in relation to the administration of the estate were $545,130.92 to 5 February 2025 and then a further $92,133.00 to 10 February 2025. Notwithstanding this very significant outlay, the estate remains largely unadministered.
(k) Kristy, as a residuary beneficiary whose entitlements under the Will are directly affected by the manner in which the estate has been administered, has for more than three years, sought information from Andrew and Jennifer about the administration of the estate. Andrew and Jennifer provided no information until ordered to do so by the Court on 16 December 2025.
Defendants’ submissions
Counsel for Andrew and Jennifer submitted:
(a) While there was no dispute that it is now a long time since the deceased died, to focus solely on the effluxion of time was apt to mislead.
(b) In fact, Kristy commenced her Pt IV claim on 17 September 2019 and did not discontinue that claim until 18 June 2021. Jake commenced his Pt IV claim on 11 January 2020 and it remains extant. Executors should not distribute any part of the estate pursuant to a will and may be held personally liable if they do so leaving insufficient money in the estate to meet the Pt IV claims.
(c) The effluxion of time is mostly explained by the existence of the Pt IV claims.
(d) The estate proceeding and the trust proceeding were commenced following advice from counsel and were directed to ascertaining whether a significant asset formed part of the estate. Both proceedings were adjourned by order of the Court made 25 June 2021 pending the resolution of the Churchill and Olver claim.
(e) This means that the relevant delay was between 12 February 2024 (the date the deed of settlement was signed) and 12 November 2024 (the date Moore J ordered the deed be enforced). Notwithstanding any conduct of Andrew and Jennifer, they could still not administer the estate while Jake’s Pt IV claim remained active. The Covid-19 pandemic and the associated lengthy lockdowns in Victoria also contributed to the delay.
(f) Andrew and Jennifer did not arrange mediation of the various claims because not all beneficiaries agreed to participate.
(g) In relation to the number of legal firms retained by Andrew and Jennifer, it must be noted that Fitzpatrick Legal and Maddens Lawyers were engaged for most of the time with the engagement of three subsequent firms for short periods. Goldsmiths Lawyers now act and have done so since 26 November 2024.
(h) Andrew and Jennifer successfully took steps to reduce the legal fees owed to Fitzpatrick Legal. The size and complexity of the estate and the fact that proceedings have been brought against the estate by Kristy and Jake provides the context against which the quantum of costs must be understood.
(i) In relation to the failure to provide information in response to the inquiries of beneficiaries, Andrew and Jennifer relied upon their solicitors to respond and do not know why that did not occur. They have not deliberately withheld information and there has been extensive correspondence between the estate’s solicitors and Kristy’s solicitors. None of that correspondence sought an updated administration account. Andrew and Jennifer filed an updated administration account when ordered by the Court to do so.
(j) Kristy is not a disinterested party in the claims against her brother Paul. Kristy’s husband is now the director of Patricom. Kristy seeks to replace Andrew and Jennifer with an executor who will favour her interests over those of other beneficiaries.
(k) The deceased had children and step-children across three separate relationships, creating complex family dynamics and competing claims on the estate.
(l) If an independent executor is appointed it will result in significant additional costs for the estate because the current executors are not charging the estate for their services.
(m) While Andrew and Jennifer have relied heavily on their legal advisors, that is not a reason in itself to order their removal. On the contrary it demonstrates that they are aware of their limitations and have appropriately sought professional help.
Consideration
I have decided that, having regard to all of the circumstances of this case, Andrew and Jennifer are unfit to remain as executors and should be removed and replaced with an independent administrator. I have reached this view for the following reasons.
First, there has been inordinate delay in the administration of the estate, a significant cause of which was Andrew and Jennifer’s conduct in the Churchill and Olver claim and the subsequent enforcement proceeding. That delay has not been adequately explained given the eventual outcome of the Churchill and Olver claim, via the enforcement proceeding in November 2024, was identical to a settlement offer made by Ms Churchill in December 2020. While Andrew and Jennifer were acting in the Churchill and Olver claim in their capacity as directors of Patricom, the bare fact of the delay, its eventual resolution on terms offered years earlier and the necessity of enforcement proceedings for Andrew and Jennifer to comply with their settlement deed all raise serious questions about Andrew and Jennifer’s ability to administer a large estate responsibly.
Second, Andrew and Jennifer have engaged an extraordinary number of firms of solicitors without adequate explanation. In this regard I find it difficult to accept that it was reasonable to change solicitors, with significant added expense, because Andrew did not like the way that one solicitor spoke to them. In some instances Andrew and Jennifer said they ceased solicitors’ engagement because they were dissatisfied with the progress of the litigation. There is some evidence that Maddens Lawyers had difficulty obtaining instructions and that Senia Lawyers could not obtain appropriate instructions from Andrew and Jennifer. It is unnecessary for this Court to resolve whether this was in fact the case. In the case of Maddens there is no satisfactory explanation for why Andrew and Jennifer took so long before ending their engagement. Each time new law firms were engaged they were required, at the expense of the estate, to obtain and read the legal files of the last firm involved.
Third, Andrew and Jennifer’s failure to communicate with beneficiaries and to account until ordered to do so by the Court was in my view unreasonable. There is clearly some evidence of correspondence between the estate’s lawyers and Kristy’s lawyers at various times. Andrew, however, agreed that Maddens had not responded to enquiries made by the estate’s beneficiaries but he disclaimed any responsibility.
Fourth, I do not accept that Kristy and Jake’s Pt IV claims have delayed the finalisation of the administration of the estate. Kristy’s Pt IV claim was discontinued in June 2021 and Andrew was aware of that fact. Jake’s Pt IV claim has been lying dormant for some time with the estate foreshadowing an application to dismiss it but failing until very recently to take any concrete steps to do so. Andrew and Jennifer offered no explanation why the estate had not taken active steps to have Jake’s Pt IV claim dismissed notwithstanding the indication given to the Court in September 2024 that the estate intended to seek orders that the claim be dismissed. On the one hand Andrew and Jennifer sought to argue they couldn’t progress the administration of the estate pending the resolution of Jake’s Pt IV claim. On the other hand the estate has not acted promptly to have the claim dismissed notwithstanding that all indications are that Jake has abandoned his claim.
Overall Andrew’s evidence gave the impression the executors renounced responsibility for the shortcomings of the estate’s lawyers, denied that the executors had contributed to delays by not providing instructions, believed that the executors were bound to do what the estate’s lawyers told them to do and had a tendency to change lawyers when the executors felt they had been slighted or did not agree with their legal advice.
Fifth, Jennifer’s admission, made in cross-examination, that her memory is failing and that she does not wish to remain an executor raises serious questions about her capacity to fulfil her obligations as executor.
It is unnecessary to decide whether Andrew and Jennifer have acted intentionally, carelessly or incompetently. The combination of each of the reasons set out above clearly demonstrates unwarranted delay in the administration of the estate, a failure to communicate with beneficiaries, failure to account until ordered to do so by the Court, and unreasonable delay in paying beneficiaries their entitlement. If Andrew and Jennifer were permitted to continue to act as executors and trustees of the estate there is a clear risk of further negative outcomes for the estate and its beneficiaries.
Conclusion
I have decided that Andrew and Jennifer should be removed as executors and trustees of the estate because they are unfit to continue to act and because their removal is in the best interests of the beneficiaries of the estate.
On 14 October 2024 Kristy swore an affidavit to which she exhibited Ms Isobel Feben’s consent to act as independent administrator of the estate. Ms Feben is an accredited specialist in wills and estates law and is employed as special counsel at Velocity Legal. Ms Feben has indicated that, if appointed, she proposes to charge for her time according to the Supreme Court Scale of Costs.[5]
[5]Supreme Court (General Civil Procedure) Rules 2015 (Vic) appendix A (Supreme Court Scale of Costs).
I am satisfied that Ms Feben would be an appropriate candidate for appointment as an independent administrator. However, given the passage of time since Ms Feben provided her consent, it is appropriate that Kristy’s solicitor confirm Ms Feben’s continuing consent to appointment before the Court makes any order.
I request that the parties confer on the question of the costs of this proceeding. If the parties are unable to reach agreement on costs within 14 days of the date of this judgment, the proceeding will be relisted for oral submissions on costs.
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