Sullivan v Craig

[2008] NSWSC 1189

CITATION:	Sullivan v Craig; Estate of O'Sullivan [2008] NSWSC 1189
HEARING DATE(S):	03/11/08, 04/11/08
JUDGMENT DATE :	4 November 2008
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	4 November 2008
DECISION:	Statement of claim dismissed.
CATCHWORDS:	WILLS, PROBATE AND ADMINISTRATION – removal of executrix – whether improper administration – whether executrix bore malice towards beneficiaries or their guardian – application dismissed – no question of principle
LEGISLATION CITED:	Family Law Act 1975 (Cth)
CASES CITED:	Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 Bates v Messner (1967) 67 SR (NSW) 187 Labraga v Pomfret [2005] NSWSC 973
TEXTS CITED:	Halsbury's Laws of England, 4th ed Vol 17
PARTIES:	Cecile Sullivan & Ors v Mary Craig; The Estate of Timothy Joseph O’Sullivan
FILE NUMBER(S):	SC 117965/07
COUNSEL:	Plaintiff: M B Evans Defendant: A Kuklik
SOLICITORS:	Plaintiff: Hall Partners Defendant: McPhee Kelshaw

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Tuesday, 4 November 2008

117965/07 Cecile Sullivan & Ors v Mary Craig; The Estate of Timothy Joseph O’Sullivan

JUDGMENT

1 HIS HONOUR: This is an application to revoke a grant of probate made on 19 October 2001 of the estate of the late Timothy Joseph O’Sullivan to the defendant; and for the grant of letters of administration with the will annexed in favour of the plaintiff.

2 The Court has inherent jurisdiction to remove an executor or administrator if it appears that the person appointed to administer the estate cannot or will not administer the estate properly. The question in such an application was stated in Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 at 108 to be:

“ ... whether the due and proper administration of an estate had either been put in jeopardy or had been prevented either by reasons of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other matters which established that the executor was not a fit and proper person to carry out the duties he had sworn to perform.. ”

3 Such a finding is not to be made lightly (Bates v Messner (1967) 67 SR (NSW) 187 at 191-192; and Labraga v Pomfret [2005] NSWSC 973 at [114]).

4 The deceased left little property in New South Wales. The primary assets of the estate are three contiguous parcels of land in County Kerry in Ireland, one of which the deceased inherited from his father. The plaintiff also claims that a sister of the deceased, Mrs Sheila Borland, received money on trust for the deceased or is liable to account for moneys received to the estate. The plaintiff says that that is also an asset of the estate. Mrs Borland is resident in Dublin, and any such debt would be located there.

5 The plaintiff is the deceased's widow. She is a creditor of the estate as a result of orders of the Family Court made on 2 April 2004. The beneficiaries under the will are the deceased’s and the plaintiff’s children. The defendant is the executrix. She and the deceased were sister and brother. The grounds of the application are set out in paragraph 43 of the statement of claim and are as follows:

“ In the events which have happened since the grant of probate to her of the estate of the Deceased on 19 October 2001, the defendant has failed to properly administer the said estate for the benefit of the beneficiaries and/or the creditors of the estate in that:
(a) she has failed and refused to provide the plaintiff, in both her capacity as a creditor of the estate and in her capacity as guardian of the two beneficiaries of the estate, with any or any proper accounts of the estate;
(b) the defendant has maintained an arrangement for the use and occupation of the major assets of the estate, the subject properties in Ireland whereby a lease of the said properties was granted to the defendant’s brother in law on terms that did not represent a proper commercial return on the property;
(c) the defendant has failed and refused to take any or any proper steps to secure and recover the sum of $283,000 paid by the Deceased to his sister, Sheila Borland, shortly before his death;
(d) the defendant attempted to effect a sale of the property to her brother in law, John Joe Hartnett, in 2007 in circumstances in which it was unlikely the property would not fetch or obtain a proper price;
(e) the defendant has made statements to the effect that the plaintiff, as a creditor of the estate, and the plaintiff’s children, as beneficiaries of the estate, would get nothing from the estate;
(f) the defendant has admitted an incapacity to apply resources as to the proper administration of the estate;
(g) In the whole of the circumstances, the defendant failed to properly administer the estate of the Deceased for the benefit of its actual beneficiaries and the creditors of the estate. ”

6 The deceased was born in Ireland. He emigrated to Australia in 1985 and was domiciled in New South Wales. He married the plaintiff in 1997. He made his last will on 25 February 2000. In ways which I will describe in a little more detail later, he left his property to his children, now aged 13 and 14, upon their attaining the age of 25, with gifts over in the event of their failing to reach that age. He left no property to the plaintiff. At that time his marriage with the plaintiff had broken down and Family Court proceedings were on foot. The deceased took his own life on the night of 20 or 21 February 2001. This fact is relevant, as the plaintiff contends that the defendant blames her for his death and that this has created a personal animosity which has hindered the proper administration of the estate and continues to put it in jeopardy.

7 The deceased and the plaintiff jointly owned a property in Orange which passed to the plaintiff by survivorship. Some superannuation benefits were paid to his children. As I said, his New South Wales estate was very modest. It consisted of shares and cash to a value of less than $2,500 and a compensation claim estimated at the time probate was taken out at about $20,000. The claim was settled in January 2003 when $29,025 was received by the defendant.

8 The three properties in County Kerry which form the bulk of the estate are called Garryletter, Garrymore and Releagh. Garryletter was the home of the O'Sullivan family. It was transferred to the deceased by his father on 10 October 1979, subject to the right of the deceased's parents to enjoy the exclusive use and occupation of the old dwelling-house on the property during their respective lives and "to be maintained thereon and thereout in the manner to which they have hitherto been accustomed". The deceased's mother is still living. She is 85 and has a life estate, or something akin to a life estate, in that property.

9 The adjoining property, called Garrymore, was purchased by the deceased from a Mr Stephen Flynn in 1990 for IR£15,000. The house constructed on that property is substantially smaller than Garryletter. Mr Flynn may also have had a life interest in that property. He died in 2005. The third block of land, called Releagh, is a bog of little value. In 2000 the lands were valued in aggregate for the purposes of the Family Court proceedings in the sum of IR£87,000. On 14 April 2003, the lands were valued at €200,000 for the purposes of those proceedings. The houses on both properties are uninhabitable. The land of both properties is described as being predominantly poor in agricultural use and mainly rough, mountain grazing ground.

10 There is conflicting information as to the acreage of each property. However, it is clear that Garryletter is the larger property. According to one valuation, it consists of 72 acres, compared with 29 acres for Garrymore. By his will the deceased gave his farm known as Garryletter to his son, provided his son attained the age of 25, with gifts over in the event of his failing to do so. The deceased gave the residue of his estate to his trustee to pay thereout his just debts, funeral and testamentary expenses and to hold the residue of his estate subject to a trust for sale for his daughter. Again his daughter is to inherit upon attaining the age of 25, with gifts over in the event of her failing to attain that age.

11 The trustee has power to apply the income or any part of the corpus towards the maintenance, education or otherwise for the benefit of the beneficiaries. The deceased's children are presently aged 13 and 14.

12 As I have said, the plaintiff contends that another asset of the estate consists of moneys paid by the deceased to his sister, Mrs Sheila Borland in March 2000. The moneys in question were held by the deceased in accounts with the Irish Nationwide Building Society. They totalled IR£131,908.21. In the Family Court proceedings, which continued after the deceased's death, the defendant deposed that the deceased told her that:

“ I'm transferring money into an account in Sheila's name so it's not part of the divorce. I saved this money before I met Cecile and she doesn't have a claim on it. ”

13 On 2 April 2004 orders were made in the Family Court that within four months the defendant pay the plaintiff $200,000 from the assets of the estate. The payment was charged on the assets of the estate. Interest accrues on that sum at two percent above the rate from time to time offered by the Commonwealth Bank of Australia on cash management accounts for sums exceeding $100,000. In his reasons for judgment, Coleman J said that the sum of A$283,000 paid by the deceased to Sheila Borland (that is the equivalent of IR£131,908.21), should be notionally added to the assets of the estate in determining the plaintiff's claim under the Family Law Act 1975 (Cth).

14 His Honour said that:

“ [27] ... It is not suggested that the disposition was for valuable consideration. The evidence does not establish an intention to make a gift of the monies to Sheila Borland. The evidence of the executrix (affidavit filed 18 March 2004, paragraph 17) [being the paragraph quoted above in these reasons] implies that the money was to be held by Sheila Borland for the benefit of the deceased in order to avoid the wife having a 'claim on it' in the proceedings which were at that time pending in this Court.

[28] No s 106B application has been made in respect of the funds. As will be seen, even without such an application, the assets which undoubtedly form part of the estate are sufficient to meet any order likely to be made in these proceedings should such order be appropriate. ”

15 His Honour made no finding that the assets of the estate included a debt owed by Sheila Borland or that she held moneys on trust for the estate. In any event, she was not a party to the Family Court proceedings. No application was made under s 106B of the Family Law Act to set aside the disposition of moneys to her. Even had his Honour concluded that those moneys formed part of the estate, no such finding would be binding on Mrs Borland. It appears to me to be extremely doubtful that the moneys paid to Mrs Borland form part of the estate. The deceased did not intend his sister to hold the money for him so that it could be the subject of a claim by the plaintiff.

16 The defendant has been given conflicting information about the payment. The deceased told her that the moneys were to be held by his sister Sheila, for his daughter. Mrs Sheila Borland has said that the moneys were to be used to provide assistance for their mother and also, in a way which has not been clearly identified to the defendant, that the moneys represented amounts the deceased owed to Sheila Borland arising from his receiving the value of stock on the property when the property was transferred to him in 1979 to which she claimed the deceased was not entitled. In the statement of claim in these proceedings, the plaintiff claims that the payment was by way of gift.

17 No proceedings have been taken to recover any moneys from Mrs Sheila Borland. The plaintiff claims that in failing to bring such proceedings the defendant has not properly performed her duty as executrix. I will return to this allegation in due course. It suffices to say that at the moment the only assets from which the plaintiff's judgment could be satisfied are the lands in Ireland.

18 The deceased had an arrangement with his brother-in-law, Mr John Joe Hartnett whereby Mr Hartnett tenanted both properties. Mr Hartnett is married to another sister, Theresa.

19 Mr Hartnett has occupied the property since about 1992. He had undertaken to the deceased to replace the boundary fence at an agreed cost of IR£15,000. During the deceased's life he occupied the property at an annual rent of IR£1,500 which was set off against the debt for fencing.

20 The debt as at 9 August 2000 was IR£13,020 which was equivalent to €16,535. After the deceased's death the defendant negotiated with Mr Hartnett that he would pay rent of IR£3,000 per annum, or €3,810 which amounts were to be set off against the balance of the debt.

21 After taking account of additional costs incurred in repairs or improvements by Mr Hartnett, as at April 2008 he owed the estate €5,770.55. That sum has been paid and collected by the defendant.

22 The plaintiff complains that the rental return of the property is too low, being less than 1 per cent of its capital value. However the only evidence of the rental value of the land is from the local agent. He values the market rental value at €2,300 per annum, which is less than the amount being paid by Mr Hartnett.

23 As I have said, part of the plaintiffs' complaint is the defendant's delay in obtaining a grant of probate in Ireland.

24 On 8 November 2001, the defendant was substituted as respondent to the Family Court proceedings. She said that for the next three years much time and expense was invested in connection with those proceedings. She said:

“ As a consequence of the Family Law Proceedings the estate was left with virtually no liquid funds to;

(a) pay the judgment debt owed the plaintiff as a result of the Family Law Proceedings;

(b) pursue Sheila Borland; or

(c) obtain a reseal of probate in Ireland, which was necessary to finalise the sale of the Properties. ”

25 I accept that evidence.

26 Although in her affidavit the defendant said that she instructed her solicitors, McPhee Kelshaw to obtain a reseal of the grant of probate in Ireland in 2004, it appears from correspondence that steps to that end were taken from about August 2003. McPhee Kelshaw instructed a Dublin firm the solicitors, Bowler Geraghty & Co to provide assistance in relation to the obtaining of a grant.

27 On 12 September, Bowler Geraghty & Co advised that the cost of taking out the grant and of "registering" the children would be €2,000 plus VAT at 21 percent plus disbursements.

28 After the Family Court judgment of 2 April 2004 the defendant promptly asked her solicitors to advise as to the likely finalisation date of the application for probate in Ireland. On 22 April 2004, McPhee Kelshaw advised her that probate had not been granted in Ireland. They provided her with a copy of a letter from Bowler Geraghty & Co dated 30 March 2004 and advised that they would seek assistance from that firm as to the status in Ireland of the orders of the Family Court.

29 Bowler Geraghty & Co advised by letter of 30 March 2004 in substance that the plaintiff as the deceased's widow would be entitled to a third of the deceased's Irish assets. This was not a matter raised in the Family Court proceedings. In these proceedings the plaintiff disclaims any such right and instead, asserts her right as a creditor in the amount of $200,000 plus interest.

30 On 2 June 2004, McPhee Kelshaw wrote to the plaintiff's solicitors asking whether the plaintiff wished to intervene in the probate application in Ireland. They also advised that an application had been made by the "deceased's brother and sister-in-law" [sic] to buy the Irish property for €195,000. They asked whether the plaintiff had any objection to the proposed sale.

31 So far as the evidence discloses on this application there was no response to that correspondence.

32 Probate has still not been granted in Ireland but this is not due to any personal fault on the part of the defendant.

33 Because she was concerned at the progress of the matter in Ireland, the defendant flew to that country at her own expense in December 2005 and January 2006. She instructed a Mr Niall Brosnan, solicitor, to take over the carriage of the matter from Bowen Geraghty & Co. There had been difficulty in raising funds to pay the former firm of solicitors but Mr Brosnan was prepared to act in the matter on the basis that he would be paid in due course from the sale of the Irish property.

34 At some time after October 2006 and before December 2006, the defendant gave a power of attorney to Mr Brosnan to do all that was necessary or desirable on her behalf to obtain a grant of probate and in connection with the sale of the Irish property. On 2 December 2006, Mr Brosnan advised the defendant that he had received the power of attorney and that "We have now taken the necessary steps to take out the Grant of Probate in Ireland and we will be in touch in due course.”

35 It appears that a reason a grant of probate has still not been obtained in Ireland is that Mr Brosnan is awaiting certain forms to be completed by the plaintiff on behalf of the children.

36 On 3 July 2007, Mr Brosnan, writing directly to the plaintiff, advised the plaintiff that as the two children are the beneficiaries of the estate:

“... the Irish Revenue Commissioners will not pass the Inland Revenue Affidavit without the beneficiaries getting an Irish PPS Number and [the children] will have to have a PPS number allocated to them and if you want the necessary papers to be sent to you to proceed with an Application to the Department of Social & Family Affairs for PPS Numbers, please let us know your address and we will send you the necessary forms.

We await hearing from you in relation to the matter. ”

37 It is clear from later evidence to which I will come that no such forms were sought by the plaintiff and they have not been sent to Mr Brosnan.

38 Notwithstanding that the defendant has not obtained a grant of probate in Ireland, steps were taken to attempt to sell the Irish lands to provide funds from which the debts owed by the estate can be paid.

39 The position appears to be that in Ireland defendants can contract to sell the land before obtaining a grant of probate but the contract would need to include a condition that she obtain probate before completion. (See a similar position in the United Kingdom in Halsbury's Laws of England, 4th ed, Vol 17 at [730] where it is said that an executor "may make a conveyance ... of realty; but although before probate he can give a valid receipt for money payable upon an assignment, he cannot compel a purchaser to complete until after probate has been obtained".)

40 In late 2006 and early 2007 there were direct discussions between Mr Brosnan and the plaintiff in relation to the sale of the Irish property. On 20 November 2006, the plaintiff sent an email to Mr Brosnan advising that she was under significant pressure from her family law solicitors to settle their account. She said:

“ Again I ask as to when this property will be placed on the market for Public Auction. Unnecessary delays have been experienced throughout this process which have placed myself and the beneficiaries of the will in an unreasonable position. ”

41 On 2 December 2006, Mr Brosnan advised her that there was a difficulty in relation to the sale of one of the properties in that the deceased's parents had reserved rights over the property and it would be very difficult to get purchasers to buy the property with this right. He said that he would discuss this matter in detail with the auctioneer when he met him.

42 On 15 December 2006, the local agent, a Mr Timothy O'Sullivan, advised Mr Brosnan that Mr Hartnett was willing to purchase the property for €400,000. This offer was in respect of all of the parcels of land. The agent advised that in his opinion this offer reflected the true open market value of the property.

43 On 19 June 2007, Mr Brosnan advised the plaintiff of the offer of €400,000 from Mr Hartnett. Mr Brosnan said that in his opinion, the offer should be accepted and that he had written to his solicitors in Australia to get instructions from the executor and would proceed further when he had those instructions.

44 On 26 January 2007, the plaintiff wrote by email to Mr Brosnan. Curiously her email is not in evidence but it can be inferred from other documents that refer to the contents of that email that the plaintiff required a reserve price at an auction of €450,000.

45 On 6 February 2007, Mr Brosnan sent an email to the plaintiff advising that:

“ I am still awaiting instructions from the Executrix's Solicitors and until I receive these I cannot issue a Contract for Sale.
I note you mention the sum of €450,000 but are you happy to sell as per the Auctioneer's recommendation at €400,000 to Mr. John Joe Hartnett?
If the property is put for sale by Public Auction with the burden in favour of Timothy O'Sullivan's mother still registered on the title it will be difficult to get a buyer and no Lending Institution will accept the land as security with this burden on it and accordingly I await your comments in relation to this. ”

46 The plaintiff did not agree to a sale at €400,000 to Mr Hartnett.

47 The defendant was not prepared to sell the property to Mr Hartnett unless the plaintiff agreed.

48 On 18 January 2007, Mr Brosnan wrote to McPhee Kelshaw advising that he needed the executor's consent to issue a contract of sale to Mr Hartnett, that the contract for sale would be subject to probate being "extracted" and that he could proceed to "extract" probate immediately. He advised that he agreed with the valuer that there was a serious encumbrance on the title and that it would be difficult to sell the property and his recommendation would be to accept the offer of Mr Hartnett. He confirmed having written to the plaintiff to confirm the offer.

49 However, the defendant prudently did not proceed to sell the property to Mr Hartnett. It is evident from her emails to McPhee Kelshaw that she had considerable difficulties in having her phone calls to her solicitor returned. On 3 July 2007 she gave instructions that:

“ I have serious reservations about the sale proceeding in this private manner; as Cecile Sullivan is a serious stakeholder & does not wish to accept the offer (which I understood from you yesterday) I think it might be more prudent to direct the Irish solicitor, Mr Brosnan, to request that the estate be sold by public auction.
By pursuing this option I can rest assured that the best possible price for the estate is secured & if it doesn't reach the current offer being tendered by my brother-in-law, Mr Hartnett, then matters can be reassessed.
Therefore, I would like you to cancel the release of contract advice as soon as possible and communicate my intentions to Mr Brosnan & the Real Estate agent, Mr T Sullivan. ”

50 The property was listed for sale by public auction. The auction was to take place on 29 August 2007. On 27 August 2007, Mr Hartnett increased his offer to €450,000.

51 In the meantime, on 20 August 2007, the plaintiff, through her solicitor, Mr Trevor Hall of Hall Partners, wrote to the defendant and to Mr Brosnan. Mr Hall complained that the defendant had failed to attend to the finalisation of the estate. He said the matters not attended to included the sale of the Irish land and the recovery of a cash payment remitted by Sheila Borland to the deceased's mother for the purchase of a residential property. He asked various questions, including why the rural properties had not already been sold for market value.

52 Mr Brosnan replied later that day. After setting out some of the history concerning the instructions for the taking out of a grant of probate and after advising of the terms of Mrs Eileen O'Sullivan's right to live in and be supported from the Garryletter property, Mr Brosnan said:

“ ... there was an objection to the sale by Cecile Sullivan and the property is now advertised for sale by public auction on the 29th August next. We are aware from speaking to the Auctioneer that many potential purchasers have a problem with the title in that they cannot give it as security to the bank with the burden in favour of Eileen O'Sullivan. This will obviously greatly reduce the number of interested parties. We are meeting with the auctioneer to review the situation as regards to the auction on Wednesday next, 22 August and will revert thereafter with an update as regards the auction. "

53 Mr Brosnan advised that there would be a reserve of €450,000 and observed that Mrs O'Sullivan had not abandoned or relinquished her rights in respect of the property. He also sent to Mr Hall the forms to be completed for the two children, without which the Revenue Commissioner in Ireland would not allocate "PPS numbers", which were needed in order for the grant of probate to be taken out. He asked for these documents to be completed and returned with accompanying documents of identity. Those documents have not been completed or returned, so far as the evidence reveals.

54 Mr Hall responded by advising that the plaintiff did not provide any assurance to the effect that €450,000 would be an appropriate reserve and was not in a position to make such an assessment as to what the true value of the property might be. He said that various questions had not been sufficiently answered and suggested that the more prudent course would be to postpone the auction. He said that, given the difficulties outlined in realising the property for a reasonable price, "... we question why your client Ms Craig seeks to remain in the position of executrix".

55 The defendant formed the view that the property should go to auction and if there were purchasers other than Mr Hartnett then the price would be in excess of €450,000 and if there were no bids then she would sell to Mr Hartnett at that price.

56 The auction was widely advertised to be held on 29 August 2007. The agent reported strong interest. Four contracts were issued to potential purchasers. All of the properties were to be sold as one lot. The plaintiff complained that the advertising of the property used photos which showed power lines, which was inappropriate marketing. I am not satisfied that that is so, but even if it were so the defendant is in no way personally at fault.

57 On 28 August 2007, Australian time, the plaintiff obtained orders for short service of an application to restrain the sale. The proceedings were returnable the following day before the duty judge. In the time available and without available funds to contest the application the defendant did not appear on the return of the summons. On 29 August 2007, Gzell J ordered that the defendant instruct the auctioneers to postpone the public auction of the property set for 29 August 2007 until further order.

58 This was an interlocutory injunction. The final relief claimed in the summons then filed was for the removal of the defendant as executrix, as now sought before me.

59 On 29 August 2007, Mr Hall wrote to McPhee Kelshaw and advised them of the court's orders restraining the sale. Mr Hall added:

“ We note that today there was no appearance on behalf of the defendant.

...

We note also that our client will likely contend that the failure to participate in any way in this action and an apparent acquiescence to any order of the Court, will likely be relied upon by our client as further grounds for removal in that it demonstrates either that: -

i. the estate is not being properly resourced;
ii. the executrix has no interest in the proper management of the estate;
iii. the Court could not be satisfied that the affairs of the estate will be properly managed at any time in the future.

One may ask if the executrix's defence of any ill-founded litigation concerning the estate would be equally 'robust'? ”

Mr Hall continued by inviting the defendant to consent to orders for her being removed as executrix in favour of the plaintiff's applying for Letters of Administration. He said that:

“ To proceed otherwise can only sound in costs against your client, in our respectful view.
We trust this causes no offence, but rather now presents as the only pragmatic analysis of the instant matters.
We note that this is an open communication.
It will likely be tendered in any application for your clients [sic] removal.
We accordingly invite your client to agree to resign within 3 days.
If our summation is in any manner wrong, we invite you (within the said 3 days) to take instructions and set out grounds and reasons why we are in error, in default of which one may expect an application for indemnity costs concerning the matter. ”

60 The defendant was thus placed under considerable pressure to consent to the orders now sought.

61 I will say something further in due course about the plaintiff's contention that it should be inferred that the defendant was not properly administering the estate because she did not appear to oppose the application which the plaintiff herself brought to restrain the auction. That bare statement indicates that it does not lie in the plaintiff's mouth to make any such contention.

62 There is tension between the plaintiff's complaint that, although she obtained judgment in 2004, she has not been paid any part of that judgment, and her complaint that the defendant has acted improperly by proceeding to sell the Irish lands at public auction when the Garryletter property is still encumbered by the rights of the deceased's mother. It may well be the case, as Mr Brosnan says in his correspondence, that those rights make the property less attractive to potential purchasers. This may adversely affect the price which is to be received for the property. On the other hand, the Irish lands are the only property available to the defendant which can be realised to pay the debt owed to the plaintiff and the other debts incurred in the administration of the estate.

63 The plaintiff gave oral evidence that she was advised by an Irish real estate agent that because the Garryletter property was subject to a life estate, the properties would realise more if they were sold separately. She also said that she was advised that the price would be maximised if the land were subdivided into five-acre lots. There is no evidence that such a subdivision would be possible, even if the estate had funds to effect such a subdivision, which it does not. The defendant did not give evidence about this advice in her affidavits. There is no evidence as to the identity of the adviser, nor his or her expertise, nor what instructions he or she was given. Although the plaintiff said that she had a conversation or an email exchange with Mr Brosnan regarding selling the properties separately rather than together, and that she also discussed that with the defendant's brother in January 2007, there was no evidence that the advice which the plaintiff says she received was conveyed to the defendant.

64 The defendant said that she had received advice from the local agent that the price for the lands would be maximised if they were sold as one lot.

65 With that unfortunately lengthy background I turn to the particular complaints of improper administration which the plaintiff makes.

66 The first allegation is that the defendant did not provide proper accounts to the plaintiff as creditor or in her capacity as guardian of the two beneficiaries. The defendant's evidence, which was not challenged, was that after the Family Court proceedings she did not receive any request for accounts. During the Family Court proceedings detailed evidence was given as to the nature of the assets of the estate.

67 On 10 September 2008, McPhee Kelshaw wrote to Hall Partners referring to this allegation in the statement of claim. They noted that the assets had not been realised and no request had been received for accounts for the estate in relation to the Irish properties and any income derived therefrom. They provided accounts of the moneys received by the defendant and an account of how those moneys were disbursed. Also included was a statement of the account with Mr Hartnett and the value and description of the Irish properties and a statement of the outstanding liabilities.

68 There is no substance to the complaint that the defendant failed to provide proper accounts. Nor did this allegation feature in the plaintiff's submissions.

69 The second allegation is that the Irish lands have been let to Mr Hartnett on terms that do not represent a proper commercial return on the property. It is sufficient to say, as noted above, that the evidence is that the land has been let at a rental above its market value. Even if there were grounds to challenge the valuer's opinion as to the market value, there is no reason to think that the defendant has not acted properly in renting the land at the rent she has. From the time of her assuming office as executrix, or shortly thereafter, the defendant negotiated an increase in the existing rent from her brother-in-law. The fact that the land is occupied by a relative by marriage does not suggest any impropriety on the part of the defendant in maintaining those arrangements.

70 The next allegation is that the defendant failed to take proper steps to recover the sum of $283,000 paid by the deceased to Sheila Borland. For the reasons I have already given, I consider that any suit to recover those moneys would face serious difficulties. The defendant received legal advice to that effect. It is not the case, as was submitted, that the defendant took no steps to seek to recover the moneys. She spoke to her sister attempting to do just that. The result of those communications is that she and her sister are now estranged. It cannot be said that she has not made conscientious efforts on behalf of the beneficiaries of the estate, and of the plaintiff as a creditor, to recover that sum. In any event, there is no cash in the estate to fund litigation in Ireland against Sheila Borland to recover the alleged debt, or the alleged trust moneys. Again I do not think there is any substance in this complaint.

71 The next allegation is that the defendant attempted to sell the Irish land to Mr Hartnett in circumstances in which it was unlikely that the property would fetch a proper price. The defendant's refusal to countenance a private sale to Mr Hartnett tells strongly against this allegation. As the property was marketed widely and was to be offered for sale at public auction, it could not reasonably be said that the defendant was attempting to sell the property at what was less than a proper price in the current circumstances. The allegation rather is that the Garryletter property should not be sold whilst it is encumbered by a life estate in favour of Mrs O'Sullivan.

72 It may be observed that from at least 2 December 2006, the plaintiff was aware of Mrs O'Sullivan's interest in the property and its potential to affect adversely the sale price. It was not until about 20 August 2007 that the plaintiff objected to the auction proceeding at all, as distinct from her objecting to a private sale to Mr Hartnett.

73 If the defendant can be criticised in relation to the attempts to sell the Irish lands, the criticism would be this. Because she has received advice that the price would be maximised if the lands were sold as one lot, the defendant has not obtained separate valuations for the Garryletter property on the one hand and the Garrymore and Releagh properties on the other. Given that the Garryletter property is the subject of a specific gift to the deceased's son, and given that the will charges residue with the payment of debts, then at least, prima facie, it would appear to me that it would not be proper for the defendant to sell the Garryletter property if the sale of the remaining property would be sufficient to discharge all of the debts. Having regard to the comparative sizes of the properties, it may be doubted whether the residue would realise sufficient amount to discharge all of the debts, but in the absence of a valuation it would be very difficult for the defendant to form such a view.

74 However, this was not a separate particular of improper administration of the estate. In any event, in the circumstances in which the defendant was acting there is no personal impropriety in what she has done. She has at all times retained solicitors in Australia and in Ireland to advise her on the conduct of the administration, as is proper. It does not appear that the plaintiff has ever suggested to the defendant that she should investigate the sale of the Garrymore and Releagh properties separately from the Garryletter property. Although in my view the question of the likely value of the Garrymore and Releagh properties should be investigated before all properties are relisted for sale, I do not think that the defendant has been guilty of any act or omission in the administration of the estate in this respect, as would justify her removal as executrix.

75 The next ground upon which the plaintiff contends that the defendant ought to be removed as executrix is because it is said that she has made statements to the effect that the plaintiff and the plaintiff's children will get nothing from the estate. The defendant denies having made statements to that effect. I accept that denial. The statements are alleged to have been made in 2003. The passage of time and the inevitable reconstruction of events, coupled with the Family Court litigation in 2004, and coupled also with the emotional stresses which this matter entails, makes it quite likely that there has been unconscious reconstruction of conversations, probably in all parties' evidence.

76 It is sufficient to say that I am not satisfied that the defendant made any statements to the effect alleged. Nor do I consider that her administration of the estate has been adversely affected by feelings of personal animosity to the plaintiff. To the contrary, her dealings with her sister leading to their resulting estrangement, and her correspondence with her solicitors in relation to the proposed private sale to Mr Hartnett, betoken a conscientious performance of her duties.

77 The next allegation is that the defendant has admitted an incapacity to apply resources to the proper administration of the estate. It is not entirely clear to what this is directed. It is true that the estate has lacked resources, but it is not an executor's duty to supply resources to an estate from his or her own pocket. In fact the defendant has spent her own moneys in travelling to Ireland to advance the interests of the estate. I infer that the allegation arises from the defendant's failure to appear at the hearing before Gzell J on 29 August 2007. It will be recalled that Mr Hall said that his client would be relying on that failure as demonstrating that the estate was not being "properly resourced" and the defendant was uninterested in its proper management.

78 It is difficult to deal with that submission with proper circumspection. The plaintiff cannot be heard to say that her application to restrain the auction was not made on proper grounds, so that it ought to have been opposed by the defendant. Yet unless that is the plaintiff's contention, I cannot see how the defendant should be criticised for not spending funds in opposing the application. In any event, the application was made at the very last moment. The defendant says, and I accept, that she lacked the time properly to respond.

79 The allegation in paragraph 43(g) of the statement of claim adds no further particulars of the allegation of failure properly to administer the estate.

80 The remaining matter is the delay in obtaining a grant of probate in Ireland. For reasons I have already given, I do not consider the defendant personally to be at fault in respect of those delays. It appears to me that she has done all that she can and that the further progress towards obtaining the grant of probate lies with the solicitors she has retained and, I might add, with the plaintiff.

81 For all these reasons I refuse the claim for relief in the statement of claim and I order that the statement of claim be dismissed.

******