Re Johnson; Blackham v Blackham - [2024] VSC 497

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2023 05060

IN THE MATTER of s 34 of the Administration and Probate Act 1958 and s 48 of the Trustee Act 1958

-and-

IN THE MATTER of r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015

-and-

IN THE MATTER of the will and estate of SHIRLEY FAY JOHNSON deceased

DIANNE FAY BLACKHAM (in her capacity as executor of the estate of SHIRLEY FAY JOHNSON, deceased)	Plaintiff
v
DARREN LESLIE BLACKHAM (in his capacity as executor of the estate of SHIRLEY FAY JOHNSON, deceased)	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2024
DATE OF JUDGMENT:	23 August 2024
CASE MAY BE CITED AS:	Re Johnson; Blackham v Blackham
MEDIUM NEUTRAL CITATION:	[2024] VSC 497

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ADMINISTRATION AND PROBATE — Application to remove executor — Administration and Probate Act 1958, s 34 — Trustee Act 1958, s 48 — Whether defendant has failed to fulfill duties as executor — Whether defendant has irreconcilable conflict between duties as executor and personal interest — Whether defendant has failed to cooperate to ensure the efficient and timely sale of the estate’s property to the detriment of the beneficiaries — Whether defendant has adopted unreasonably antagonistic approach to dealings with co-executor and others — Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	S V Kipen	Malkin Lawyers
For the Defendant	Self-represented

HIS HONOUR:

Introduction

The parties are the named co-executors and trustees of the estate of Shirley Fay Johnson (‘the deceased’), who died in March 2022. They have obtained probate of the deceased’s last will.

The deceased’s estate is comprised almost entirely of a residential property in Hedgerow Court, Narre Warren South (‘the property’). The defendant resides in the property but does not pay rent to the estate.

The estate has not been administered. The property remains in the name of the deceased.

The plaintiff wishes to sell the property, administer the estate and therefore discharge her duties to the beneficiaries. She alleges that the defendant has failed to fulfil his duties as executor. She alleges first that the defendant has an irreconcilable conflict between his duty as executor to sell the property, and his personal interest in continuing to reside in the property that he regards as his home; second, that because of the conflict, the defendant has failed to cooperate to ensure the efficient and timely sale of the property causing an unwarranted delay in the administration of the estate to the detriment of the beneficiaries; and third, that in his dealings with the plaintiff and other parties the defendant has adopted an unreasonably antagonistic approach. The plaintiff seeks orders removing the defendant as co-executor and trustee of the deceased’s estate.

For the following reasons I conclude the defendant should be removed as co-executor and trustee of the deceased’s estate.

Background

The parties are siblings and children of the deceased. There…

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.

Continue reading Re Johnson; Blackham v Blackham

Details

AGLC: Re Johnson; Blackham v Blackham [2024] VSC 497
Case: [2024] VSC 497
Decision Date: 23 August 2024

CaseChat Overview and Summary

The case of Re Johnson; Blackham v Blackham involved an application by a beneficiary to remove the defendant as an executor of the estate of the deceased. The application was heard by the Supreme Court of Victoria. The central dispute was whether the defendant had failed in their duties as an executor, had an irreconcilable conflict between their duties and personal interests, and had not cooperated to ensure the efficient and timely sale of the estate’s property.

The court needed to determine whether the defendant's conduct warranted removal under the Administration and Probate Act 1958 and the Trustee Act 1958. Specifically, the court examined if the defendant had breached their fiduciary duties, had a conflict of interest, and had failed to act in the best interests of the estate and its beneficiaries. The court also considered whether the defendant's antagonistic behaviour towards the co-executor and other beneficiaries was unreasonable and detrimental to the administration of the estate.

In its judgment, the court found that the defendant had indeed failed in their duties as an executor. The court concluded that the defendant had an irreconcilable conflict between their personal interests and their duties as an executor. Additionally, the defendant had not cooperated with the co-executor in ensuring the efficient and timely sale of the estate's property, thereby causing detriment to the beneficiaries. The court also noted the defendant's unreasonably antagonistic approach to dealings with the co-executor and others, which further justified the decision to remove them as an executor. Based on these findings, the court granted the application to remove the defendant as an executor of the estate.

The final orders of the court included the removal of the defendant as an executor and the appointment of a replacement executor to continue with the administration of the estate. The court emphasised the importance of executors acting in the best interests of the beneficiaries and highlighted the consequences of failing to do so.

Orders