Sharpe v Forbath - [2000] VSC 282

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 5357 of 2000

IN THE MATTER of the Will of MARIE CHARLOTTE FORBATH, deceased

and

IN THE MATTER of Section 34 of the Administration and Probate Act 1958

CAROLINE ANNE SHARPE AND DAVID JAMES SHARPE	Plaintiffs
v.
ANDREW LOUIS FORBATH	Defendant

---

JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 JUNE 2000
DATE OF JUDGMENT:	13 JUNE 2000
CASE MAY BE CITED AS:	SHARPE & ANOR. v. FORBATH
MEDIUM NEUTRAL CITATION:	[2000] VSC 282

---

CATCHWORDS: Administration and Probate – Removal of executor – Refusal of executor to act or unfit to act – Administration and Probate Act 1958, s.34.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. S. Newton	Kennedy Guy
For the Defendant	In Person

HIS HONOUR:

This is the return of an originating motion filed in the court by the plaintiffs, Caroline Anne Sharpe and David James Sharpe, whereby they seek the following relief.

1.An order that pursuant to s.34 of the Administration and Probate Act the defendant be removed as the executor of the estate of the deceased;
2.An order that the plaintiffs be appointed as administrators of the estate of the deceased;
3.An order that the defendant file with the court an account of his administration of the estate;

4. Such other orders or directions as the court deems appropriate;
5. Costs.

The deceased referred to in the originating motion is Marie Charlotte Forbath. Mrs Forbath was the mother of the defendant, Andrew Louis Forbath, and the grandmother of the plaintiffs. The plaintiffs' mother, Marianne Sharpe, was the daughter of Mrs Forbath.

Marianne Sharpe died on 19 September 1997. Mrs Forbath died on 24 June 1998.

By her last will and testament dated 4 September 1970, Mrs Forbath appointed her son and daughter to be the executors of her estate. In that situation, as the defendant was his mother's surviving executor, it was his responsibility to make application for probate of his mother's will and estate.

By her will Mrs Forbath left her estate equally to her daughter and son as tenants in common in equal shares; see court file No. 6679 of 1999.

As a consequence of their mother's death, the plaintiffs inherited their late mother's half interest in the estate. According to the inventory filed by the defendant in support of his application for probate of his mother's estate, Mrs Forbath's assets consisted of the following property:

Victorian Real Estate
Unit 3, 42 Murphy Street, South Yarra.
Consisting of a brick veneer unit of 7 rooms on Certificate of Title Volume 8845, Folio 199
Executor's valuation  $250,000.00.
Total Victorian real estate  $250,000.00.
Victorian Personal Estate
1.ANZ Bank BSB No. 013 440
Passport Account No. 666-55210
Balance at date of death   $   9,796.58.

2. IOOF of Victoria 22 St Kilda Road St Kilda,
Fixed term deposit account
No.143317 150 $ 19,168.67.

3. Toyota Corona sedan 1976 model
Executor's Valuation $ 3,000.00.

4. Furniture and household effects
Executor's Valuation $ 3,000.00.
Total Victorian…

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 Sharpe v Forbath

Details

AGLC: Sharpe v Forbath [2000] VSC 282
Case: [2000] VSC 282
Decision Date: 13 June 2000

CaseChat Overview and Summary

In the matter of Sharpe v Forbath, the Court of Appeal was presented with a dispute regarding the removal of an executor from their role under the Administration and Probate Act 1958. The deceased, Sharpe, left a will nominating Forbath as the executor. However, due to concerns about Forbath's ability or willingness to fulfil the duties of the executor, the will's beneficiaries sought to have Forbath removed from the position. The Court of Appeal was tasked with determining whether the executor could be removed under section 34 of the Act.

The central legal issue before the Court of Appeal was whether the executor could be deemed unfit to act or refusing to act, thus warranting their removal under the provisions of section 34 of the Administration and Probate Act 1958. The Court needed to interpret the relevant statutory language and consider whether the evidence presented by the beneficiaries was sufficient to establish the executor's unfitness or refusal to act.

The Court of Appeal determined that the statutory language of section 34 provided a clear basis for the removal of an executor who was either unfit or refusing to act. The Court found that the beneficiaries had presented sufficient evidence to demonstrate that Forbath was refusing to act in his capacity as executor, which justified his removal. The Court emphasised that the onus was on the beneficiaries to prove their case by clear and convincing evidence, and that the evidence provided met this standard. As a result, the Court upheld the lower court's decision to remove Forbath as the executor.

Orders