Woodley v Woodley [No 2] - [2017] WASC 94

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WOODLEY -v- WOODLEY [No 2] [2017] WASC 94

CORAM: PRITCHARD J

HEARD: 13 - 17 JUNE 2016

DELIVERED : 4 APRIL 2017

FILE NO/S: CIV 1821 of 2013

BETWEEN: TERRY RAY WOODLEY
Plaintiff
AND
ROSS MAXWELL WOODLEY
First Defendant
RAYMOND THOMAS WOODLEY
Second Defendant
WAYNE CHARLES WOODLEY
Third Defendant
ANN CHERYL LEWIS
Fourth Defendant
ROSLYN PATRICIA WOODLEY
Fifth Defendant
KIM REBECCA WOODLEY
Sixth Defendant
ANGELA WOODLEY
Seventh Defendant
NATALIE CHANTELLE BIRCH
Eighth Defendant
MORGAN LEE WOODLEY
Ninth Defendant

Catchwords:

Wills and Estates - Appointment of executors - Passing over - Where named executor cannot act impartially - Where relationship between named executors has broken down - Where named executor does not understand role of executor - Where fact of named executor owing debt to an estate is not sufficient to warrant passing over - Turns on own facts

Legislation:

Administration Act 1903 (WA), s 33, s 36
Supreme Court Act 1935 (WA), s 18

Wills Act 1970 (WA), s 8, s 32, s 33

Result:

Plaintiff's application dismissed
Defendants' counterclaim granted

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant              :     Mr M D Cuerden SC
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     Mr M D Cuerden SC
Sixth Defendant             :     No appearance
Seventh Defendant         :     No appearance
Eighth Defendant           :     No appearance
Ninth Defendant             :     No appearance

Solicitors:

Plaintiff:     In person
First Defendant              :     MDS Legal
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     MDS Legal
Sixth Defendant             :     No appearance
Seventh Defendant         :     No appearance
Eighth Defendant           :     No appearance
Ninth Defendant             :     No appearance

Cases referred to in judgment:

Bailey v Bailey (1924) 34 CLR 558
Baldwin v Greenland [2007] 1 Qd R 117
Bates v Messner (1967) 67 SR (NSW) 187
Bourdales v Carroll [2007] NSWSC 1057
Colston v McMullen [2010] QSC 292
Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447
Executor Trustee Australia Ltd v McDougall [2011] SASC 140; (2011) 110 SASR 46
Fysh v Coote [2000] VSCA 150
Gorman v McGuire [2002] NSWSC 1089
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Stuart (dec'd) [2009] SASC 399; (2009) 106 SASR 39
Jurkiewicz v Jurkiewicz [2013] ACTSC 89
Mavrideros v Mack (1998) 45 NSWLR 80
Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572
Morgan v MacRae [2001] NSWSC 1017
Mullins-Trnovsky v Adams [2014] SASC 116; (2014) 121 SASR 155
Oreski v Ikac [2008] WASCA 220
Porteous v Rinehart (1998) 19 WAR 495
Re Estate of Crane [2005] SASC 379; (2005) 93 SASR 198
Re Estate of Griffith (deceased) (1995) 217 ALR 284
Rutter v McCusker [2008] NSWSC 1289
Salter v Hicks [2014] VSC 45
Scattini v Matters [2004] QSC 459
Swanston v Emmerton [1909] VLR 387
The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
Titterton v Oates (1998) 143 FLR 467
Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152
Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070
Wright v Gibbons (1949) 78 CLR 313
Yazbek v Yazbek (No 2) [2012] NSWSC 783

Table of Contents

1. Overview of the witnesses and documentary evidence at the trial, and observations in relation to the credibility of the witnesses

The witnesses

2.     The Original Will and the Amended Will
3.     The Court's jurisdiction to pronounce on the validity of the Amended Will
4.     Why the Court should pronounce the force and validity of the Amended Will
5.     The Court's jurisdiction to pass over an executor under a will
6.     An overview of the underlying issues relating to the claims that the Executors should be passed over
7.     Terry's claims that Ross should be passed over as an executor of Shirley's will
8.     Why Terry's claim that Ross should be passed over as an executor of Shirley's will should be dismissed

(a) Terry's allegation that Ross has failed or refused to disclose the full extent of his indebtedness to Shirley, and to account for that indebtedness to the estate

Documentary evidence of Ross' debt to the Estate, and the basis for Terry's claims
Terry's claim that Ross has denied being indebted to the Estate
Whether Ross' position in relation to the amount he owes to the Estate has been inconsistent and whether Ross has attempted to minimise the amount owed
Evidence given by Greg and Ann
Ross' evidence in relation to the loan
Ross' failure to pay interest
Conclusion

(b) Terry's allegation that Ross has only recently disclosed what Terry says is an additional liability to Shirley's estate, in the form of a $75,000 loan payable to Thomas by Markim Holdings Pty Ltd as Trustee for the Woodley Unit Trust trading as Barrier Reef Live Crays and that the delay in the disclosure of this loan has delayed the proper investigation and administration of Shirley's estate

(c) Terry's allegation that in 2010 Shirley transferred 50% of the interest she held as a joint tenant, in a property known as the Coronation Road property, to Ross, that she transferred her interest for 'love and affection,' and when she did so, Ross was in a position to 'unduly influence' her.

The history of the dairy partnership between Thomas and Shirley and Ross
The dissolution of the dairy partnership
Ownership of the Coronation Road property after the dissolution of the dairy partnership
Ownership of the Coronation Road property after Thomas' death
Shirley's transfer of the Coronation Road property to Ross
Terry's claims in relation to the Coronation Road property
Terry's claim that Shirley transferred her interest in the Coronation Road property to Ross as a result of undue influence by Ross
Evidence of Shirley's desire to transfer properties to her family members before her death

(d) Terry's allegation that on or about 30 March 2010 (prior to the transfer of Shirley's interest in the Coronation Road property) Ross offered the Coronation Road property for sale to Ann, Greg Lewis and Bradley Lewis, on terms that involved the payment of $500,000 to Ross, when he had no authority to offer the property for sale or to demand payment be made to him

Conclusion in relation to the evidence concerning Ross' ownership of the Coronation Road property

(e) Terry's allegation that Ross has taken or sold stock and assets belonging to Shirley or to Terry, which were on the Coronation Road property at the date of Thomas' death, and has failed or refused to account for them, and his allegation that Ross had converted assets of the estate, or Terry's assets, to cash and his failure to pay quarterly interest on the debt he owes to the estate has 'forced the estate to become insolvent'

(f) Terry's allegation that Ross has failed to acknowledge the interest and entitlement of the Estate in the proceeds of the sale of three parcels of land known as Camarri's farm

(g) Terry's allegation that Ross failed to consent to the production of the Original Will to Terry on request

(h) Terry's allegation that there is animosity and disagreement between Ross and Terry 'of a serious degree' resulting in a breakdown of communication between them, which would prevent them working together to administer Shirley's estate or to act as the trustees of the testamentary trust
(i) Terry's allegation that at a meeting of the named executors of Shirley's will on 20 October 2011, Ross (and Ray) attempted to influence Terry to agree to a statement of assets and liabilities for Shirley's estate which did not reflect what Terry considered to be the true position of the estate as at the date of Shirley's death

(j) Terry's allegation that Ross is unsuitable to act as an executor and trustee because following a reading of Shirley's will on 28 September 2011, his son Mark made threatening phone calls and sent threatening text messages to Terry

(k) Terry's allegation that Ross is unsuitable having regard to his age and health and because he lacks the education and experience to properly carry out the role of executor and trustee of the testamentary trust

(l) Terry's allegation that Ross is unsuitable because he was late in filing and serving his defence and counterclaim in these proceedings

Conclusion in relation to Terry's claim that Ross should be passed over as an executor
Terry's claim that Ray should be passed over as an executor

9. Why Terry's claim that Ray should be passed over as an executor and trustee should be dismissed

(a) Terry's allegation that in December 1999, Ray assaulted his father causing him injury, and after that time, Ray had little contact with Shirley

(b) Terry's allegation that Ray has failed or refused to disclose the full extent of his indebtedness to Shirley and to account for that indebtedness to Shirley's estate

(c) Terry's allegation that at a meeting of the named executors of Shirley's will on 20 October 2011, Ray (and Ross) attempted to influence Terry to agree to a statement of assets and liabilities for Shirley's estate which did not reflect what Terry considered to be the true position of the estate as at the date of Shirley's death

The alleged non-disclosure by Ray (and Ross) of Tracenia Nominees' alleged debt to the Estate
Terry's allegation that Ray (and Ross) failed to disclose an interest by the Estate in the Fitzpatrick Street units

(d) Terry's allegation that Ray has a conflict of interest in relation to a claim which Terry intends to make on behalf of the Estate against Nathan and Morgan, to require them to account to the Estate for property Shirley transferred to each of them without valuable consideration

Morgan and Nathan are the registered proprietors of the Lots
Evidence of Shirley's intention to gift the properties to Morgan and Nathan
No evidence of any basis for any interest of the Estate in Lot 315 and Lot 100
Terry's claim that Ray has a conflict of interest

(e) Ray has used three rural properties which form part of Shirley's estate, and has caused damage to those properties

Conclusion in relation to Terry's claims against Ray

10. The bases for the Defendants' claim that Terry should be passed over as an executor of Shirley's estate
11. Why Terry should be passed over as an executor of Shirley's estate

(a) The allegation that Terry is in possession of the Holden Jackaroo, which is an asset of the estate

(b) The allegation that the Defendants are not in a position to ascertain whether Terry owes a greater sum to the Estate because he holds the vast majority of Thomas and Shirley's financial documents and refuses to make these available, despite requests to do so
Matters which warrant passing over Terry as an executor of Shirley's will

(i)      Terry's relationships with Ross, Ray and Wayne are so bitter and acrimonious that he will be unable to objectively and dispassionately carry out the role of an executor of Shirley's will and trustee of the testamentary trust
(ii)      Terry's conduct has demonstrated that he does not understand the role of an executor in carrying out a testator's testamentary intentions and that he will not properly carry out the role of an executor of Shirley's will
Terry's intention to ensure the equal distribution of the assets of the Estate, taking into account any gifts, loans, advances or assistance provided to the Siblings by Thomas and Shirley throughout their lifetimes
Terry's disregard for the need to administer the Estate as expeditiously as possible in the interests of the beneficiaries under Shirley's Will
(iii)     Terry is incapable of independently, objectively and impartially assessing whether the Estate has any claim against Ross, Ray, Wayne, Nathan and Morgan
(iv)     Terry stands in a position of conflict between his own interests and the interests of the Estate
Other conflicts of interest
Conclusion

12. Should all executors be passed over and an independent third party be appointed as the administrator of Shirley's Will and the trustee of the testamentary trust?

Conclusion

PRITCHARD J: Shirley Woodley died on 31 July 2011. Her husband Thomas predeceased her on 9 January 2010. Together, Shirley and Thomas Woodley had five children: Ross (the first defendant), Raymond (known as Ray) (the second defendant), Wayne (the third defendant), Ann (the fourth defendant) and Terry (the plaintiff). In order to conveniently distinguish between the members of the Woodley family in these reasons, I will refer to each of them, and to the other witnesses who gave evidence at the trial, by their first names, and to Ross, Ray, Wayne, Ann and Terry, collectively, as the Siblings. No disrespect is intended.
On 30 May 1997, Shirley made a will (the Original Will). In it, she appointed Terry, Ross and Ray as the executors of her estate (the Executors). She made a number of specific gifts, but otherwise left the residue of her estate to the Executors, on trust, for the purpose of establishing a testamentary trust, which was to operate as a family discretionary trust, for the benefit of the Siblings, and their spouses or partners, and their children (the testamentary trust). The Executors were to be the trustees of that trust, and all of the Siblings were to be the guardians of the testamentary trust.
On one or more occasions after making the Original Will, Shirley made amendments to it, in handwriting, on a copy of the Original Will (the Amended Will).[1] Those amendments pertained to one of the gifts made in the Original Will, and included additional gifts. Otherwise, the remaining provisions of the Original Will, including the appointment of the Executors, were unchanged in the Amended Will.
[1] The Original Will itself bears two other amendments, which appears to have been written in pencil, which appear to have been added after the Original Will was executed. The status of those amendments to the Original Will need not be determined as those same amendments are duplicated in the Amended Will, together with additional amendments.
Since Shirley's death, the Siblings have been bitterly divided over who should act as the executors of their mother's will, and over what are the assets and liabilities of her estate (the Estate). And for that reason, despite the fact that it is now more than five years since Shirley died, there has not yet been a grant of probate in respect of the Original Will or the Amended Will.
Underlying the disputes between the Siblings appears to be a long standing sense of injustice held by Terry (and perhaps, to a lesser extent, by Ann) arising from what they perceive to have been the generous financial assistance which Thomas and Shirley provided to Ross, Ray and Wayne, or their families, as compared with the lack of financial assistance which Terry and Ann consider was given to them or their families. In Terry's words, 'they [Ross, Ray and Wayne] got the bread, and we [he and Ann] got the breadcrumbs'.[2] Terry apparently sees the administration of Shirley's estate and of the testamentary trust as the means by which that unfairness can, and should, be rectified.
[2] ts 855.
The dispute between the Siblings in relation to the administration of the Estate culminated in the present action which was commenced by Terry against the Siblings and the other named beneficiaries under the Original Will and the Amended Will. Terry seeks an order that the Court pronounce the force and validity of the Original Will, an order that there be a grant of probate of the Original Will to him as the sole executor and trustee of the Estate and of the testamentary trust, and that the Court pass over Ross and Ray as Executors of the estate and trustees of the testamentary trust.
Only Ross and his wife Roslyn (the fifth defendant) have actively participated as defendants in the action. (For ease of reference, I will refer to them together (in their capacity as defendants) as the Defendants.) The Defendants deny that Terry is entitled to the relief which he claims. They have brought a Counterclaim seeking orders that the Court pronounce the force and validity of the Amended Will, that the Court issue a grant of probate of the Amended Will to Ross and Ray, and that Terry be passed over as an executor of Shirley's will and trustee of the testamentary trust. In the alternative, the Defendants seek an order that an independent administrator and trustee be appointed to administer the Estate and to be the sole trustee of the testamentary trust.
For the reasons outlined below, I have concluded that there should be an order pronouncing the force and validity of the Amended Will, a grant of probate of the Amended Will to Ross and Ray, and an order that Terry be passed over as an executor of Shirley's will and trustee of the testamentary trust respectively.
In these reasons for decision, I deal with the following matters:
1.Overview of the witnesses and documentary evidence at the trial, and observations in relation to the credibility of the witnesses;
2.The Original Will and the Amended Will;
3.The Court's jurisdiction to pronounce on the validity of the Amended Will;
4.Why the Court should pronounce the force and validity of the Amended Will;
5.The Court's jurisdiction to pass over an executor under a will;
6.An overview of the underlying issues relating to the claims that the Executors should be passed over;
7.Terry's claims that Ross should be passed over as an executor of Shirley's will;
8.Why Terry's claim that Ross should be passed over as an executor of Shirley's will should be dismissed;
9.Why Terry's claim that Ray should be passed over as an executor of Shirley's will should be dismissed;
10.The bases for the Defendants' claim that Terry should be passed over as an executor of Shirley's will;
11.Why Terry should be passed over as an executor of Shirley's will; and
12.Whether all of the Executors should be passed over and an independent third party be appointed the administrator of the Estate and the trustee of the testamentary trust.

Overview of the witnesses and documentary evidence at the trial, and observations in relation to the credibility of the witnesses

Terry tendered a witness statement which constituted his evidence‑in‑chief.[3] Terry was cross-examined by counsel for the Defendants.
[3] Exhibit 2.
Terry also sought to tender a witness statement in reply[4] in which he replied to the evidence-in-chief of the Defendants (and to the evidence of Ray and Wayne also). Counsel for the Defendants objected to the admission of this document on numerous bases, including that its contents were not relevant to any issue requiring determination in this action, and that the contents of the statement included hearsay, expressions of opinion, and submissions or argument. I provisionally admitted Terry's witness statement in reply into evidence, on the basis that I would determine the weight to be given to its contents in the course of these reasons.[5] I have now done so. The witness statement is replete with objectionable material. I have considered whether it is possible to separate that objectionable material from the balance of the statement, but the extent of the objectionable material is so considerable that it is not possible to do so. In the end, therefore, I have concluded that the contents of Terry's statement in reply should be given no weight.
[4] Exhibit 4.
[5] ts 325; Exhibit 4.
Terry also tendered witness statements prepared by his wife Valentina Woodley,[6] his son Hayden James Slee,[7] and by Ann[8] and by Ann's husband Greg Lewis.[9] Each of those witnesses was cross-examined by counsel for the Defendants. Subject to the qualifications set out below, I accept the evidence given by Valentina, Hayden, Ann and Greg.
[6] Exhibit 7.
[7] Exhibit 12.
[8] Exhibits 9, 10.
[9] Exhibits 14, 15.

The Defendants tendered witness statements prepared by each of them,[10] and also tendered witness statements made by Ray,[11] Wayne[12] and by Ray's son, Morgan Woodley.[13] Each of them was cross-examined by Terry. I accept the evidence given by the Defendants, and by Ray, Wayne and Morgan. I found their evidence to be credible and reliable.
[10] Exhibits 16, 22.
[11] Exhibit 23.
[12] Exhibit 24.
[13] Exhibit 19.
Hundreds of documents were tendered in evidence, by consent. Terry also sought to tender a compact disc which contained a number of clips of video footage showing rural areas in which a number of people can be seen (including, apparently, Terry).[14] The compact disc also contained what were described as enlarged copies of other documents in evidence, or parts thereof. I provisionally admitted the contents of the compact disc into evidence on the basis that I would consider its admissibility in the course of these reasons.[15] I have not relied on the copies of the documents which were included on the compact disc. In so far as the documentary evidence is concerned, I have relied solely upon the documents in the trial bundle which were tendered in evidence. As for the video footage on the compact disc, there was no evidence which established, with any necessary precision, what the footage depicted, with the result that the footage is not capable of supporting any factual finding. In addition, it is also not apparent that the footage is relevant to any issue which I need to determine in this action. Accordingly, I have given the video footage no weight.

The witnesses

[14] Exhibit 13.

[15] ts 474 ‑ 475.

Terry did not impress as a witness. At times he was aggressive and quite belligerent,[16] and at the end of his evidence he became quite emotional.[17] In addition, Terry demonstrated a tendency to gloss over evidence which was inconsistent with his own views, or to exaggerate aspects of his evidence, to bolster his own case. (I have referred to some examples, below.) For these reasons, I approached Terry's evidence with some caution, and, generally speaking, I have not relied on his evidence except where it was corroborated by other evidence.
[16] See, eg, ts 282, 283, 287.
[17] ts 309.
One of the key planks of Terry's claim that Ross and Ray should be passed over as executors of Shirley's will is his claim that each of them refuses to acknowledge the extent of their indebtedness to the Estate. In order to resolve the question whether any of the Executors should be passed over, it has not been necessary to do more than form a preliminary view of the strength of Terry's claims that Ross and Ray are indebted to the Estate. However, there was a clear divergence in the evidence given by Ross, Ray and Wayne as to the circumstances in which Thomas and Shirley came to advance them funds, or in relation to their ownership of particular real property, and Terry's 'evidence' on those questions. And, as I explain in further detail below, much of Terry's 'evidence' in relation to those claims amounted to no more than his own conclusions based on his analysis of available documentary evidence.
Furthermore, this was an area in which Terry appeared willing to exaggerate his evidence in order to bolster his own case. By way of example, in the course of cross-examination, Terry claimed that in September 2011 he had discovered that the Defendants were indebted to the Estate for a (further) $75,000 which Shirley had given them to discharge a loan in the name of Roslyn's mother. Terry admitted that there was no mention of that additional alleged loan in his Statement of Claim, nor in his witness statement, nor had he discovered any documents in respect of this alleged loan.[18] When he was asked why it was not referred to in his witness statement his response was 'how many libraries do you want me to fill up?'[19] When he was asked why he had not included reference to this additional loan in his pleading, he claimed that 'I forgot about it at the time'.[20] And when it was put to him that he had concocted this evidence, his explanation was that 'not all the facts have been made available to me right from the start'.[21]
[18] ts 284.
[19] ts 282.
[20] ts 283.
[21] ts 285.
In addition, Terry claimed that he had knowledge of the circumstances in which this further $75,000 had been advanced to Ross by Thomas and Shirley, because he had heard discussions at the kitchen table between members of his family which took place when he was 11 years old.[22] I do not accept that claim, in light of the many years which have passed, and in view of Terry's age at the time.
[22] ts 300.
By way of further example of Terry's willingness to exaggerate his evidence so as to bolster his own case, Terry sought to cast doubt on Shirley's mental capacity at the time she transferred land to Ross. Terry's evidence as to Shirley's mental capacity stood in stark contrast to the evidence of the other witnesses. I discuss that evidence in greater detail below, but by way of overview, it suffices to say that I reject Terry's evidence that Shirley was often 'off with the fairies'.[23] Instead, I prefer the evidence given by Wayne, Ross, Roslyn and Ray (which was to the effect that Shirley remained 'very very sharp'[24]). The latter evidence was consistent with a report of Shirley's general practitioner, Dr Walker, who reviewed Shirley's medical records since 2005 and reported that those records contained 'no evidence of cognitive deficit'.[25]
[23] ts 271.
[24] ts 714.
[25] Exhibit 1-416.
One final matter which is appropriate to mention now is that there was also a conflict between the evidence of Ann and her husband, Greg Lewis, on the one hand, and Ross, on the other hand, about conversations they had about Ross' debt to the Estate, and about the transfer of a property (known as the Coronation Road property) prior to Shirley's death. I discuss this evidence at [113] - [115] and [191] - [207] below. For the reasons there explained, I prefer the evidence given by Ross to that given by Ann and Greg.

The Original Will and the Amended Will

The Original Will, which is dated 30 May 1997, appears to have been prepared for Shirley by a firm of solicitors, Nicholson Clement. It can be inferred that that firm retained the Original Will in its possession, following the Will's execution, because after Shirley's death, there was a reading of Shirley's will at the offices of Nicholson Clement, at which the Original Will was produced by a staff member of that firm.[26]
[26] Exhibits 1 [98], 16 [400], 24 [89].
There is no dispute that the Original Will was properly executed. As I have already mentioned, the Original Will bears two handwritten annotations made in pencil, which are not the subject of any present dispute between the parties.[27] Terry says that probate should be granted in respect of the Original Will.
[27] Exhibit 1-591.
However, during the reading of Shirley's will at Nicholson Clement's offices, it came to light that there was a copy of the Original Will, which bore handwritten amendments made by Shirley.[28] When the Will was read, Ross recalled asking Shirley's solicitor, Mr John Reyburn, if the Will he had in his possession bore any handwritten amendments, because Shirley had shown Ross a copy of her will with handwritten amendments on it, and which she kept in a safe at Wayne's house.[29] Ross' evidence was that he had assumed that the will held by Nicholson Clement would bear the same amendments. It did not.[30] Ross recalled that Mr Reyburn was subsequently provided with a copy of the Amended Will.[31]
[28] Exhibit 24 [89]. See also Exhibit 16 [406].
[29] Exhibit 16 [407].
[30] Exhibit 16 [408] - [409].
[31] Exhibit 16 [412] - [414].
There was no dispute between the parties that the handwritten amendments on the Amended Will are in Shirley's handwriting and were made by her. (When I refer in these reasons to handwritten amendments to the will, I mean to refer only to the handwritten amendments which appear exclusively on the Amended Will.) There was no direct evidence as to when Shirley made those amendments, but one amendment (pertaining to a gift to Natalie Birch) was clearly made after 17 April 2004.[32]
[32] That was the date on which Natalie Lewis was married, after which she took up her married name of 'Birch': Exhibit 1‑591 (affidavit of Ross Maxwell Woodley and Raymond Thomas Woodley in support of application for probate sworn 26 September 2012 [6]).
The handwritten amendments deal with particular gifts, of jewellery and motor vehicles. One of the amendments deletes a specific gift, made in cl 4(e) of the Original Will, of a piece of jewellery to 'Natalie Lewis' (Greg and Ann's daughter). The remaining amendments contain additional gifts of items not specifically referred to in the Original Will. The amendments are written in ink of two different colours.
Adjacent to where Shirley struck through cl 4(e), Shirley wrote 'Page 5', which is where the additional gifts appear in the Amended Will.
With the exception of the deletion of cl 4(e) and the words 'Page 5' nearby, Shirley signed her initials next to each of the amendments she made in the Amended Will. The handwritten amendments in the Amended Will were not witnessed by any person.
Ross and Ray say that probate should be granted in respect of the Amended Will.

The Court's jurisdiction to pronounce on the validity of the Amended Will

Under s 8 of the Wills Act 1970 (WA) (Wills Act) a will is not valid unless it is in writing, is signed by the testator in the presence of at least two witnesses, both of whom are present at the same time, and the witnesses attest and subscribe the will in the presence of the testator. There is no dispute that these formal requirements have been complied with in respect of the Original Will, but not in respect of the Amended Will.
However, s 8 of the Wills Act is subject to other provisions of that Act, including Part X. Section 32 of the Wills Act, which is found in Part X of that Act, empowers the Court to dispense with the formal requirements which otherwise apply for a will to be valid. Section 32 applies in relation to the Amended Will.[33]
[33] Wills Act 1970 (WA) s 33.
Under s 32(2) of the Wills Act, a document[34] which purports to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by the Wills Act, will constitute the will, or an alteration to a will, of the person if the Court is satisfied that the person intended the document to constitute his or her will, or an alteration to his or her will. In forming its view on that question, the Court may have regard to the document itself, and to any evidence relating to the manner of its execution, or the testamentary intention of the person, including evidence of statements made by the person.[35]
[34] A document is defined to mean any record of information, including, amongst other things, anything on which there is writing: Wills Act 1970 (WA) s 32(1).
[35] Wills Act 1970 (WA) s 32(3).
In determining whether the deceased intended that the document would constitute his or her will, the question is whether the evidence is sufficient to satisfy the Court that, either at the time the document was brought into existence, or at some later time, the deceased demonstrated ‑ by their words or actions - that it was their intention that the document should, without more action on their part, operate as their will.[36] As Newnes AJA made clear in Oreski v Ikac however, it is not sufficient that a document sets out a deceased person's testamentary intentions. The Court must be satisfied that:[37]
the document [was] intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run' … . [E]ven where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.
It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.
[36] Hatsatouris v Hatsatouris [2001] NSWCA 408 [56] (Powell JA, Priestley & Stein JJA agreeing); Oreski v Ikac [2008] WASCA 220 [52] - [53] (Newnes AJA, Martin CJ & McLure JA agreeing).
[37] Oreski v Ikac [2008] WASCA 220 [54] - [55] (Newnes AJA, Martin CJ & McLure JA agreeing).

Why the Court should pronounce the force and validity of the Amended Will

When Ross and Ray made an application for the grant of probate in respect of the Amended Will, that application was made with the consent of all the beneficiaries who may be prejudiced if probate were granted in respect of the Amended Will.[38] The only person who did not give his consent was Terry.
[38] Exhibit 1-591.
Terry's position was that the Court should not propound the Amended Will. Although Terry accepted that the handwriting in the Amended Will was Shirley's,[39] he submitted that the Amended Will did not meet the criteria under the Wills Act for an informal will. He submitted that it was necessary that there be 'some sort of corroborating evidence'[40] that the amendments set out in the Amended Will reflected a testamentary intention on Shirley's part. He also submitted that to propound the Original Will was the 'safest' option as that would avoid issues which Terry saw as overshadowing the Amended Will: 'no big medication, no undue influence, no outside factors'.[41] (I hasten to add that it was not pleaded that Shirley lacked testamentary capacity to make the handwritten amendments in the Amended Will, nor was it pleaded that she was subject to 'undue influence' when she made the handwritten amendments in the Amended Will, and there was no evidence led at the trial which was capable of supporting either conclusion.)
[39] ts 258.
[40] ts 201.
[41] ts 201.
I am satisfied that Shirley intended the Amended Will to constitute her will, notwithstanding that the Amended Will was not executed in the manner required by the Wills Act. I have reached that view for the following reasons.
First, the Amended Will comprises handwritten amendments made on a copy of the Original Will, rather than, for example, in a separate document. The amendments were, no doubt, not made on the Original Will itself because that was in the possession of Shirley's solicitors. In other words, Shirley chose to express her intentions on the face of the Original Will, which suggests that she saw the amendments as modifying the contents of the Original Will.
Secondly, as I mentioned at [27], Shirley's initials appear next to most of the amendments. That also supports the conclusion that she saw the amendments as an amendment to her will, and understood that they therefore required a degree of formality in their execution.
Thirdly, the fact that one of the handwritten amendments deleted cl 4(e) which appeared in the Original Will, suggests that it was Shirley's intention that that handwritten amendment would alter the terms of her will.
Fourthly, it is apparent that Shirley considered that the additional gifts made on page 5 of the Amended Will were related to, or were of a similar nature to, the gifts appearing in cl 4 of the Original Will. That conclusion is supported by the fact that Shirley wrote 'Page 5' adjacent to the deletion of cl 4(e), which suggests that Shirley saw those amendments as being related to each other. That conclusion is also supported by the fact that one of the additional gifts in the Amended Will is the bequest of a piece of jewellery to Natalie Birch (which is the married name of Natalie Lewis[42]). I infer that Shirley intended that the latter gift to Natalie was in substitution for the earlier gift in cl 4(e), which she deleted in the Amended Will. These circumstances support the conclusion that Shirley considered the additional gifts in the Amended Will to be in the nature of testamentary gifts, of the same nature as the gifts in cl 4 of the Original Will.
[42] Exhibit 1-591 (affidavit of Ross Maxwell Woodley and Raymond Thomas Woodley in support of application for probate sworn 26 September 2012 [6]).
Fifthly, the circumstances suggest that the handwritten amendments in the Amended Will were made on at least two occasions, given that they are written in different coloured ink. That supports the conclusion that the amendments were the subject of deliberate consideration by Shirley, which is also consistent with the conclusion that Shirley intended that the amendments would alter her will.
Finally, there was evidence that at least some of the handwritten amendments (those pertaining to the gifts of jewellery) were consistent with testamentary intentions Shirley expressed during her lifetime. Ray gave evidence that the handwritten amendments on the Amended Will, which related to the additional gifts of motor vehicles, were consistent with what Shirley had told him about her intentions.[43] Similarly, Ross also recalled that Shirley had shown him a copy of her will with handwritten amendments on it, and which she kept in a safe at Wayne's house.[44] His recollection was that the handwritten amendments involved some changes to the gifts of jewellery and additional gifts of his mother's cars (a Jaguar and a Holden Jackaroo).[45] Roslyn, too, gave evidence that the handwritten amendments on the Amended Will, in relation to the additional gifts of jewellery, were consistent with what Shirley had told her about her intentions, during multiple conversations over approximately 10 years.[46]
[43] Exhibit 23 [53].
[44] Exhibit 16 [407].
[45] Exhibit 16 [407].
[46] Exhibit 22 [119].
Accordingly, there should be a grant of probate in solemn form in respect of the Amended Will.

The Court's jurisdiction to pass over an executor under a will

The Court has power to pass over an executor appointed under a will, and to remove an executor who has been granted probate, by the revocation of the grant. In some circumstances, it will rely on a statutory power to do so. By way of example, where the deceased appoints an executor who is not willing and competent to take probate, or who is resident out of the State, the Court has a power to appoint an administrator, a course which necessarily involves passing over the named executor.[47] In the exercise of the Court's broad jurisdiction in probate matters under s 18 of the Supreme Court Act 1935 (WA), it has power to revoke a grant of probate to an executor,[48] which results in the removal of that executor.
[47] Administration Act 1903 (WA) s 36.
[48] See the discussion in The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 [14] - [22] (Heenan J).
However, there is no doubt that the Court also has inherent, or inherited, jurisdiction to pass over a named executor who seeks a grant of probate, or remove an executor by the revocation of the grant of probate to him or her.[49]
[49] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [51] - [53] (Heenan J); Porteous v Rinehart (1998) 19 WAR 495, 506 (White J); Re Estate of Crane [2005] SASC 379; (2005) 93 SASR 198 [15] - [23] (Besanko J).
The circumstances in which the Court's jurisdiction to pass over a named executor will be exercised are often described as 'exceptional' or 'special'.[50] That recognises the fact that:[51]
it is a serious matter to pass over an applicant for a grant who is an executor named by the deceased because, presumably, the deceased has made his or her choice of executors with knowledge of the person concerned and such a person is generally entitled to a grant of probate … .
The testator's choice of a designated person to be executor or co-executor implies that the deceased reposed trust in that person and considered him or her to have been suitable and capable of performing the duties required.
[50] See, eg, Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [52], [54] (Heenan J); Porteous v Rinehart (1998) 19 WAR 495, 518 (White J).
[51] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [60] - [61] (Heenan J); see also The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 [32](Heenan J).

Notwithstanding the respect which must be afforded to the wishes of the deceased, the primary concern of the Court in the exercise of its discretion to pass over an executor will be to ensure that the estate will be duly and properly administered according to the terms of the will, in the interests of the parties beneficially entitled to the estate.[52] The test will be whether the due and proper administration of the estate has been put in jeopardy or prevented, either by reason of acts or omissions on the part of the executor, or by virtue of matters personal to him or her, or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties of an executor.[53]
[52] Mullins - Trnovsky v Adams [2014] SASC 116; (2014) 121 SASR 155 [13] - [15] (Gray J) and authorities cited therein; Re Estate of Crane [2005] SASC 379; (2005) 93 SASR 198 [24], [40] (Besanko J); Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [62] (Heenan J); cf also Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572, 575 (Latham CJ), 580 - 581 (Dixon J) in relation to the removal of a trustee.
[53] Mavrideros v Mack (1998) 45 NSWLR 80, 108 (Sheller JA, Priestley JA & Beazley JA agreeing); Bates v Messner (1967) 67 SR (NSW) 187, 191 - 192 (Asprey JA); In the Estate of Stuart (dec'd) [2009] SASC 399; (2009) 106 SASR 39 [22] - [23] and cases cited therein; Colston v McMullen [2010] QSC 292 [39] (White J).
There are a great variety of circumstances in which a named executor may be passed over, or where the grant of probate to an executor will be revoked on the basis that the executor cannot, or should not be permitted to, continue to undertake that role. A number of examples, and the relevant authorities, were discussed by Heenan J in Tsaknis.[54] I am indebted to his Honour for that illuminating discussion of the authorities. As his Honour noted, the circumstances in which executors have been passed over include cases where the person is unfit to act or is of bad character (such as where the executor was in prison, where the executor had unsuccessfully propounded a forged will, where the executor had been convicted of the murder or of the manslaughter of the deceased or where the executor had attempted to avoid tax);[55] where the executor has proved him or herself unfit or unable to properly undertake or to continue to undertake the administration of the estate, because he or she has delayed the proper investigation of the deceased's affairs or neglected his or her duties as an executor;[56] where the executor was unable to undertake his or her duties because of absence overseas, ill-health, unsoundness of mind, or incompetence, or where the executor cannot be located;[57] where the estate is insolvent;[58] or where the appointment of the executor would place the administration of the estate in jeopardy.[59]
[54] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [54] - [59] (Heenan J).
[55] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [55], [57] (Heenan J) and the authorities cited therein.
[56] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [57] (Heenan J), referring to Williams, Mortimer and Sunnucks [26 - 05]; see also The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 [25] (Heenan J) and the cases cited therein.
[57] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [57] (Heenan J), referring to Williams, Moertimer and Sunnucks [26 - 05].
[58] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [57] (Heenan J), referring to Williams, Moertimer and Sunnucks [26 - 05].
[59] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [59] (Heenan J) and see the cases cited therein.
Executors have also been passed over, or the grant of probate to them revoked, where their relationship with the other executors has deteriorated to the point where there is no realistic expectation that they will be able to work together in the interests of the estate.[60]
[60] Jurkiewicz v Jurkiewicz [2013] ACTSC 89 [13], [26] (Master Harper); In the Estate of Stuart (dec'd) [2009] SASC 399; (2009) 106 SASR 39 [25]; see also Tsaknis As Executor and Trustee of the Estate of Geoffrey DouglasRoland Lilburne (Dec) v Lilburne[2010] WASC 152 [70] - [72] (Heenan J) where his Honour held that there should be a trial to determine whether an executor should be passed over, having regard (amongst other things) to evidence which suggested that the relationship between the named executors was such that they would be unable to establish a satisfactory working relationship.
Furthermore, if it is shown that a history of past family conflict, or bitter relations between executors or trustees of an estate, and the beneficiaries of the estate, is likely to impact on the decisions made by the executor or trustee, and to leave the beneficiaries with the suspicion that the trustee's decisions will be tainted by the trustee's emotions or self‑interest, that may also warrant the removal of the executor or trustee.[61]
[61] See, eg, Titterton v Oates (1998) 143 FLR 467, 481, 483 (Crispin J).
Sometimes a named executor will be passed over temporarily, and for reasons that do not reflect adversely on him or her, such as when the named executor is a minor.[62]
[62] Tsaknis As Executor and Trustee of the Estate of Geoffrey DouglasRoland Lilburne (Dec) v Lilburne[2010] WASC 152 [54] (Heenan J); see also Administration Act 1903 (WA) s 33.
These examples are not exhaustive. There are no limits to the grounds upon which an applicant for probate may be passed over, and every case must depend upon its facts and be decided on its own merits.[63]
[63] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [58] (Heenan J), and see the references cited therein.
The Court's caution in passing over an executor means that it will not be sufficient for an applicant for that relief simply to allege the existence of misconduct, or a conflict of interest (such as that the executor owes a debt to the estate), or some other grounds for removal, without a proper basis being shown for those allegations.[64] It is not sufficient to advance 'mere allegations and suspicions'.[65] Vague and unparticularised allegations of misconduct will be insufficient to warrant an executor being passed over.[66]
[64] Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070 [8] (Windeyer J); Executor Trustee Australia Ltd v McDougall [2011] SASC 140; (2011) 110 SASR 462 [24] - [25] (Kourakis J).
[65] Salter v Hicks [2014] VSC 45 [25] (Daly AsJ).
[66] Salter v Hicks [2014] VSC 45 [29], [38] (Daly AsJ).
However, if the executor disputes a debt or refuses to acknowledge a debt as an asset of the estate, in circumstances where the executor himself or herself is alleged to owe the debt and acts on the basis of a version of events which does not give rise to the alleged debt, that will be a relevant consideration in determining whether the executor should be passed over, or the grant of probate revoked, in order to ensure the proper administration of the estate in the interests of those beneficially entitled to it.[67] A similar question of a conflict of interest would arise if the executor admitted as a debt of the estate a claim, made by him or her, which was disputed, and which was based solely or primarily on an assertion by the executor.[68] However, even the existence of an actual conflict of that kind will not inevitably require that the executor be passed over or that probate be revoked. All of the circumstances of the case will be relevant,[69] and these will include whether the conflict can be managed or resolved in some way (for example, by an application for directions from the Court), the relationship between the executor, any other executors and the beneficiaries, the executor's appreciation of the conflict of interest, and the financial burden on the estate if the executor is removed.[70]
[67] Rutter v McCusker [2008] NSWSC 1289 [26] (Palmer J).
[68] Rutter v McCusker [2008] NSWSC 1289 [26] (Palmer J).
[69] See, eg, Rutter v McCusker [2008] NSWSC 1289 [29], [33] (Palmer J).
[70] See, eg, Executor Trustee Australia Ltd v McDougall [2011] SASC 140; (2011) 110 SASR 462 [49] - [51] (Kourakis J); Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070 [8] (Windeyer J); Fysh v Coote [2000] VSCA 150 [21] - [25](Ormiston JA, Batt JA & Chernov JA agreeing).
Furthermore, in cases involving an alleged conflict of interest on the part of a named executor, the existence, or possibility, of a conflict of interest does not of itself justify passing over the named executor. One reason for that approach is that many executors will have a conflict, which will arise by virtue of the terms of the will itself, such as the appointment of an executor who is a debtor to the estate.[71] Ordinarily, the Court will be entitled to assume that a person named as an executor will act properly, such as by paying their just debts, as the deceased expected the executor to act.[72]
[71] Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070 [8] (Windeyer J); Re Estate of Crane [2005] SASC 379; (2005) 93 SASR 198 [30] (Besanko J); Rutter v McCusker [2008] NSWSC 1289 [25] (Palmer J); Executor Trustee Australia Ltd v McDougall [2011] SASC 140; (2011) 110 SASR 462 [23] (Kourakis J).
[72] Uniting Church in Australia Property Trust (NSW) v Millane [2002] NSWSC 1070 [9] (Windeyer J); Re Estate of Crane [2005] SASC 379; (2005) 93 SASR 198 [30] (Besanko J); Rutter v McCusker [2008] NSWSC 1289 [24] - [25] (Palmer J).
In addition, in family situations, where personal conflicts and conflicts of interest not infrequently arise, it must be borne in mind that the deceased can be expected to have known of such relationships and circumstances as existed during his or her lifetime which might give rise to the possibility of a conflict of interest, but chose the executor in the light of that knowledge. On the other hand, the same approach cannot be taken in relation to conduct or circumstances which have arisen since the death of the deceased, or about matters of which he or she could not have been expected to be aware.[73]
[73] Tsaknis As Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [61] (Heenan J); see also Porteous v Rinehart (1998) 19 WAR 495, 518 (White J); Baldwin v Greenland [2007] 1 Qd R 117 [44] - [45] (Jerrard JA, McMurdo P & Helman JA agreeing).
Revocation of a grant of probate in the case of a conflict of interest will often be 'a last resort when there is no other appropriate method of dealing with a problem that may have emerged'.[74] However, where the executor finds him or herself in a position of an irreconcilable conflict between his or her duties to the estate and his or her personal interests or duties, and especially when that conflict is something about which the deceased could not have been aware (such as where the executor is, or is likely to be, sued by the estate for negligence in the administration of the estate), the proper administration of the estate may require that the executor be removed.[75]
[74] Morgan v MacRae [2001] NSWSC 1017 [24]; cited in Executor Trustee Australia Ltd v McDougall [2011] SASC 140; (2011) 110 SASR 462 [22] (Kourakis J).
[75] See, eg, Mullins - Trnovsky v Adams [2014] SASC 116; (2014) 121 SASR 155 [19] (Gray J); Executor Trustee Australia Ltd v McDougall [2011] SASC 140; (2011) 110 SASR 462 [26] and [44], [49] (Kourakis J) referring to Gorman v McGuire [2002] NSWSC 1089 [11] (Palmer J).
In cases where the appointment of an independent administrator will be necessitated by passing over a named executor, the cost of that course will be relevant in determining whether the discretion to pass over, or to revoke probate, should be exercised.[76] In cases of conflict between executors in the one family, the cost of appointing an independent administrator may be less of an imposition on the estate than prolonged litigation involving the named executors.[77]

An overview of the underlying issues relating to the claims that the Executors should be passed over
[76] Jurkiewicz v Jurkiewicz [2013] ACTSC 89 [20] referring to Bourdales v Carroll [2007] NSWSC 1057, and [22] referring to Yazbek v Yazbek (No 2) [2012] NSWSC 783 (Master Harper); Titterton v Oates (1998) 143 FLR 467, 482 (Crispin J).
[77] See, eg, Bourdales v Carroll [2007] NSWSC 1057 (Young CJ in Eq); Yazbek v Yazbek (No 2) [2012] NSWSC 783 (Slattery J); Titterton v Oates (1998) 143 FLR 467, 481 ‑ 482 (Crispin J).

There is no dispute between the Executors that the Estate presently comprises a property in Janis Street Halls Head (the Mandurah property), three vacant lots in Waroona (Lot 101 Paterson Road, Lot 313 Paterson Road and Lot 314 Paterson Road), and some items of lesser value, including a car, a boat, jewellery and personal effects, and some cash. In addition, Ross admits that he owes the Estate $125,000 plus interest, arising from a loan by Thomas and Shirley.
Under the terms of the Original Will, and the Amended Will, the Mandurah property is the subject of a specific gift to Wayne.[78] The remainder of the real property and the chattels comprise the residue of the Estate which, after the payment of any debts of the Estate, is to be held on trust by the trustees for the purpose of establishing the testamentary trust.
[78] Tracenia Nominees Pty Ltd, a company of which Wayne is the sole director, owns the block of land next door to the Mandurah property, and Wayne extended Thomas' and Shirley's house on the Mandurah property so that it straddled both blocks: Exhibit 16 [24].
The Executors hold different views about whether there are other assets of the Estate. Terry claims that Ross is indebted to the Estate for more than the $125,000, and that Ross has admitted as such. Ross denies that that is so.
In addition, Terry is of the view that Ross has failed to account to the Estate for the proceeds of the sale of two other parcels land of which Ross was the registered proprietor, but in which Terry claims that the Estate had an interest. I will refer to those parcels of land in these reasons as the Coronation Road property and Camarri's farm. Terry also claims that Ross has failed to account to the Estate for the sale of, or his use of, chattels which Terry claims were owned by the Estate (namely cattle, hay and machinery which were at the Coronation Road property at the date of Shirley's death).
In addition, Terry's view is that the Estate is the beneficial owner of, or has an interest in, other land at 14A, 14B, 16A and 16B Fitzpatrick Street Waroona (the Fitzpatrick Street units). Wayne is the registered proprietor of that land.
Further, Terry also believes that the Estate has, or may have, an interest in land at Lot 315 Paterson Road Waroona (known as 44 Paterson Road Waroona), and land at Lot 100 Paterson Road Waroona (known as 6 Paterson Road Waroona). Shirley transferred Lot 315 to her grandson Morgan, and Lot 100 to her grandson Nathan, in May 2011.
Finally, Terry claims that Ray is indebted to the Estate in the amount of $60,000, which Ray denies. Terry is also of the view that a company owned by Wayne, Tracenia Nominees Pty Ltd, is indebted to the Estate in respect of two loans of $50,000 each.
The Executors are also in dispute about whether Terry himself owes a debt to the Estate, and if so, in what sum. The Defendants claim that Terry owes $48,016 plus interest in respect of a loan made to him by Thomas and Shirley. Terry's position in respect of that alleged debt, and as to the amount in question, was not entirely consistent, as I explain below.
Finally, for the sake of completeness of this overview, I should add that Terry also claims that he (personally) had an equitable interest in the Coronation Road property, and that he is entitled to the proceeds of the sale of that property. In addition, Terry claims that he (personally) has an equitable interest in two of the Fitzpatrick Street units.
In order to determine whether any of the Executors should be passed over, it is not necessary to make any final determination about the various claims identified at [60] ‑ [66] above.[79] That is all the more the case because disputes about the Estate's alleged interest in the proceeds of the Coronation Road property, and the ownership of the Fitzpatrick Street Units, and about Terry's personal interest in those proceeds, or in the Units, are presently the subject of other proceedings in this Court.[80] However, in order to assess whether, by their conduct, Terry, Ross or Ray are unfit to carry out the duties of an executor of Shirley's will, it is necessary to make a preliminary assessment of Terry's claims, and of the Defendants' claims as against Terry. That preliminary assessment also permits an assessment to be made of the propriety of the response of each of the Executors to the claims made against them.
[79] Cf Re Estate of Crane [2005] SASC 379; (2005) 93 SASR 198 [14] (Besanko J).
[80] In CIV 2080 of 2013, Terry seeks a declaration that Ross' interest in the Coronation Road property from 1977 onwards was held in trust for Thomas and Shirley Woodley, a declaration that the interest held by each of Thomas Woodley and Shirley Woodley in the Coronation Road property prior to their deaths was held on trust for Terry, a declaration that Ross, as the registered proprietor of the Coronation Road property held that property on trust for Terry, and an order that Ross pay Terry the proceeds of sale of the Coronation Road property: see Exhibit 11. Other proceedings in this Court - CIV 2489/2015 (extension of caveat) and CIV 1640/2016 (removal of caveat) - concern the question of whether Terry has an interest personal to him, in Units 14A and 14B of the Fitzpatrick Street Units, and whether the Estate has an interest in these units.

Terry's claims that Ross should be passed over as an executor of Shirley's will

I turn first to deal with Terry's claims as against Ross. In the statement of claim, Terry pleads that Ross is not suitable or competent to be appointed as an executor and trustee or co-executor or co-trustee of Shirley's estate and should be passed over. Terry contends that Ross 'cannot objectively, impartially, fairly and without a conflict of interest fulfil the duties of executor and trustee'[81] of the testamentary trust, for a variety of reasons. In summary, Terry's numerous allegations, as pleaded, can be distilled into the following allegations:
[81] Statement of Claim 11(r).
(a)Terry alleges that Ross has failed or refused to disclose the full extent of his indebtedness to Shirley, and to account for that indebtedness to the Estate. (Ross accepts he owes a debt of $125,000 to the estate, but Terry's view is that the amount owed is in fact $175,000.) Terry also contends that Ross has refused to provide information to Terry concerning his indebtedness to the estate, so as to properly account to the estate, and has failed to pay interest to the estate since 18 March 2010.[82]
[82] Statement of Claim 11(a), 11(a)(iii), 11(a)(iv), 11(a)(v), 11(a)(vi), 11(b)(ii) ‑ (iv), 11(c), 11(g)(i), 11 (g)(vii), 11(l).
(b)Terry alleges that Ross has only recently disclosed what Terry says is an additional liability to Shirley's estate, in the form of a $75,000 loan paid by Thomas to Markim Holdings Pty Ltd as Trustee for the Woodley Unit Trust trading as Barrier Reef Live Crays (a company with which the Defendants are associated), and that the delay in the disclosure of this loan has delayed the proper investigation and administration of Shirley's estate;[83]
[83] Statement of Claim 11(q).
(c)Terry alleges that in 2010 when Shirley transferred 50% of the interest she held as a joint tenant in the Coronation Road property to Ross (which she transferred for 'love and affection') Ross was in a position to 'unduly influence' her;[84]
(d)Terry alleges that prior to that transfer, and on or about 30 March 2010, Ross offered the Coronation Road property for sale to Ann, Greg Lewis and Bradley Lewis, on terms that involved the payment of $500,000 to Ross, when he had no authority to offer the property for sale or to demand payment be made to him;[85]
(e)Terry alleges that Ross has taken or sold stock and assets belonging to Shirley or to Terry, which were on the Coronation Road property at the date of Thomas' death, which Terry estimates are valued at $85,000, and has failed or refused to account for them.[86] Terry alleges Ross has converted assets of the Estate, or Terry's assets, to cash and that his failure to pay quarterly interest on the debt he owes to the Estate has 'forced the estate to become insolvent'.[87]
(f)Terry alleges that Ross has failed to acknowledge the interest and entitlement of the Estate in the proceeds of the sale of three parcels of land known as Camarri's farm.[88]
(g)Terry alleges that at a meeting of the Executors on 20 October 2011, Ross (and Ray) attempted to influence Terry to agree to a statement of assets and liabilities for the Estate which did not reflect what Terry considered to be the true position of the Estate as at the date of Shirley's death.[89] In particular, Terry alleges that Ross failed to disclose as an asset of the Estate two loans in the amount of $50,000 which Terry says were owed to Thomas and Shirley by Tracenia Nominees Pty Ltd as Trustee for the Wayne Woodley Family Trust.[90] In addition, Terry alleges that Ross failed to acknowledge that Shirley and Thomas had an interest in the Fitzpatrick Street units.[91]
(h)Terry alleges that Ross failed to consent to the production of the Original Will to Terry on request;[92]
(i)Terry alleges that there is animosity and disagreement between Ross and Terry 'of a serious degree resulting in a breakdown of communication between them', which would prevent them working together to administer the Estate or to act as the trustees of the testamentary trust.[93] In addition to the issues already mentioned, that disagreement extends to whether the Original Will or the Amended Will should be proved,[94] the administration of the Estate,[95] and to the fact that Terry commenced separate legal proceedings in this Court against Ross, by which Terry (in his personal capacity) claims an entitlement to the proceeds of the sale of the Coronation Road property (the Coronation Road proceedings).[96]
(j)Terry alleges that Ross is unsuitable because following a reading of Shirley's will on 28 September 2011, his son Mark made threatening phone calls and sent threatening text messages to Terry;
(k)Terry alleges that Ross is unsuitable having regard to his age and health[97] and because he lacks the education and experience to properly carry out the role of an executor and a trustee of the testamentary trust;[98] and
(l)Terry alleges that Ross is unsuitable because he was late in filing and serving his defence and counterclaim in these proceedings.[99]
[84] Statement of Claim 11(c).
[85] Statement of Claim 11(h).
[86] Statement of Claim 11(c), 11(g)(i) - (ix).
[87] Statement of Claim 11(l).
[88] Statement of Claim 11(l).
[89] Statement of Claim 11(a)(ii), 11(b)(i).
[90] Statement of Claim 11(b)(iii).
[91] Statement of Claim 11(b)(iv).
[92] Statement of Claim 11(d).
[93] Statement of Claim 11(e).
[94] Statement of Claim 11(f)(i).
[95] Statement of Claim 11(f)(iii).
[96] Statement of Claim 11(f)(iv).
[97] Statement of Claim 11(i).
[98] Statement of Claim 11(s).
[99] Statement of Claim 11(j).

I turn to explain why none of these allegations support the conclusion that Ross should be passed over as an executor of Shirley's will.

Why Terry's claim that Ross should be passed over as an executor of Shirley's will should be dismissed

(a) Terry's allegation that Ross has failed or refused to disclose the full extent of his indebtedness to Shirley, and to account for that indebtedness to the estate

Terry's position is that Ross denies that he and Roslyn owed Thomas and Shirley a total of $175,000, which they received in loans from Thomas and Shirley. Terry also considers that Ross' position in relation to the extent of his indebtedness to Shirley's estate has been inconsistent. In addition, Terry points to the fact that Ross has not paid any interest on the loan since 2010. Terry viewed this as evidence that Ross intended to deny the full extent of his indebtedness to Shirley's estate. Terry also claims that Ross and Ray pressured him to accept that Ross owed a lesser amount to the Estate than was actually the case.
Ross' evidence was that at the date of Shirley's death, he and Roslyn owed Thomas and Shirley $125,000. Ross' evidence is that he has never hidden the fact that he and Roslyn owe the Estate $125,000 plus interest[100] and he accepts his liability to pay interest on that amount to the Estate.[101] Ross denies that he and Ray attempted to influence Terry to agree to a statement of assets and liabilities, or to acknowledge that Ross had no indebtedness to the Estate.
[100] Exhibit 16 [492] - [494].
[101] Exhibit 16 [497].
For present purposes, it is not necessary to decide what amount is actually owed by Ross to the Estate, although I have made a preliminary assessment of the evidence with a view to determining whether Ross' position in relation to the amount owed has been unreasonable, or indicative of a desire to minimise the debt he owes.
For the reasons set out below, the evidence did not support the conclusion that Ross has failed or refused to disclose the full extent of his indebtedness to the Estate, or that he pressured Terry into accepting that Ross owed a lesser amount to the Estate than he in fact owes.

Documentary evidence of Ross' debt to the Estate, and the basis for Terry's claims

The loan made by Thomas and Shirley to Ross was not recorded in a formal, written loan agreement. There was some written evidence of a loan from Thomas and Shirley to the Defendants, but that evidence was limited. In evidence was a single sheet of paper with handwritten notations on each side, which appeared to bear the signatures of Ross, Roslyn, Thomas and Shirley Woodley.[102] The document appears to have been created at some stage in, or shortly prior to, 1987. That document refers to an initial loan amount of $160,000 and to amounts repaid on various occasions, including interest, and to further advances. It was not apparent, on its face, whether the document represented a complete record of the position in relation to the loan to the Defendants.
[102] Exhibit 1-1.
Terry's claims concerning the debt Ross owes the Estate are based on documents he obtained as a result of acting as an accountant for Thomas and Shirley. (His evidence was that the first accounts he prepared for them were for the 1996 financial year, although they were prepared some time after June 1996.[103])
[103] ts 216.
Even had it been necessary to do so here, it is impossible to ascertain an accurate picture of Thomas' and Shirley's finances from the documentary evidence. That is because Terry has most of that documentation (as a result of having acted as the accountant for Thomas and Shirley for a number of years, during which he retained copies of documents that came into his possession in relation to their financial affairs[104]) but he admitted that he had not discovered all of the documents in the course of this action.[105]
[104] ts 227.
[105] ts 219, 227.
I should add that Terry claims that Ross has refused to provide him with information in relation to the loan. That of itself is not surprising given that Terry has not obtained a grant of probate, and given the animosity and distrust between Ross and Terry.
The evidence led at the hearing suggested that Thomas and Shirley did not regard the loan to Ross in about 1987 as a loan made by their business partnership (as the loan was not recorded in the last trial balance for the partnership prepared by Thomas and Shirley's previous accountants, for the 1995 financial year.[106]) However, when Terry began acting as Thomas' and Shirley's accountant he took steps to record any previous loans made by his parents within the accounts of their partnership[107] (which at that stage, was a partnership with Wayne in a building business[108]). Terry thus sought to ensure that any money given by his parents to his siblings was recorded as a loan by their business, with a view to ensuring that interest was paid, and that the amount loaned was ultimately repaid.[109]
[106] Exhibit 1-33.
[107] ts 222.
[108] ts 226.
[109] ts 222.
When Terry began acting as Thomas' and Shirley's accountant, he advised them to include the balance of the loan to Ross in the accounts of their business for the 1996 financial year.[110] Significantly, the loan was then recorded as a loan in the sum of $125,000.[111] Those accounts also recorded that a significant sum in interest was paid by the Defendants to Thomas and Shirley in that year.[112]
[110] ts 224.
[111] Exhibit 1-2.
[112] Exhibit 1-2.
Since his parents passed away, Terry appears to have drawn the conclusion that the Defendants must have owed more money to Thomas and Shirley than $125,000 because having regard to the prevailing interest rates at the time, the 'interest' payments they made to Thomas and Shirley (prior to 2010) were greater than would have been required for a debt of $125,000.[113] Terry's calculation was that the Defendants must have owed Thomas and Shirley a total of $175,000.[114] Terry's view as to the amount of the debt owed by Ross was purely speculative. It does not establish that the Defendants in fact owe the Estate $175,000.

Terry's claim that Ross has denied being indebted to the Estate

[113] See, eg, Exhibit 1-15, which contains Terry's handwritten calculations and notes in relation to the loan amount.

[114] ts 229 - 230.

Terry claims that at two meetings - on 28 September 2011 and 20 October 2011 - Ross denied being indebted to the Estate in the full amount he actually owes, and put pressure on Terry to accept that Ross owed a lesser amount than is actually the case.
As I have already mentioned, on 28 September 2011, the Siblings met at the offices of Nicholson Clement for the reading of Shirley's will. Terry's evidence was that he distributed a spreadsheet listing the assets of the Estate, and a suggested distribution of those assets. It appears that the assets Terry listed in that document included a number of properties his parents once owned, but for which they no longer held the legal title at the time of their deaths, namely properties registered in the name of Ross (the Coronation Road property and Camarri's farm), Wayne (the Fitzpatrick Street Units), Morgan (Lot 315 Paterson Road) and Nathan (Lot 100 Paterson Road). Terry also set out the loans he claimed were owed to the Estate. The discussion clearly became rather emotional, which is not surprising given the occasion itself, and the fact that Terry claimed, as assets of the Estate, properties which other members of his family regarded as being indisputably theirs and loans in amounts which they disputed. Terry said:[115]
I got to Ross's loan then Ross said 'this is all rubbish'. He screwed the spreadsheet into a ball then threw the ball of paper at me hitting me in the forehead.
[115] Exhibit 2 [98].
There was no dispute that that occurred.[116]
[116] ts 581.
What is clear from the evidence as to the meeting on 28 September 2011 is that there was a dispute from that point between Terry, Ross, Ray and Wayne, as to the Estate's assets. That dispute is discussed further below.
Of significance for present purposes, however, is that in cross‑examination, Terry accepted that Ross did acknowledge his debt to the Estate, in the course of the meeting of the Siblings on 28 September 2011.[117] Terry did not refer to that acknowledgment in his witness statement (which comprised his evidence-in-chief).[118] His explanation for that omission was that if he had mentioned everything that his siblings said, 'that would be 400 pages'[119] and later, that 'you can't remember everything'.[120] He denied that that omission was an attempt to mislead the Court.[121] This was an example of Terry's willingness to gloss over evidence that was contrary to his case.
[117] ts 295 - 296; Exhibit 1-587.
[118] Cf Exhibit 2 [98]; ts 296 - 297.
[119] ts 297.
[120] ts 297.
[121] ts 297.
On 20 October 2011, there was a meeting of the Executors at the offices of Nicholson Clement. Mr John Reyburn, Shirley's solicitor, was also present.[122] Terry claimed that at that meeting, Ross denied any liability on his part to the Estate for a loan made to him by Thomas and Shirley.[123]
[122] Exhibit 16 [423].
[123] ts 295 ‑ 296.
Ross' evidence was that there was a discussion of the assets of the Estate, and that he had brought a statement of assets and liabilities with him to the meeting.[124] Ross' evidence was that Terry claimed that Ross owed $175,000. Ross said he told those at the meeting that additional monies received from his parents were forgiven as a gift and that the loan amount remained at $125,000.[125] Terry produced documents which he claimed showed that the Defendants had been making regular payments to Thomas and Shirley, and Terry asked what those payments were for.[126] Ross' evidence was that he 'told everyone at the meeting that I owed the sum of $125,000 and that I had paid interest on that sum to my parents up until the date my mother died'.[127]
[124] Exhibit 16 [420] - [421].
[125] Exhibit 16 [430].
[126] Exhibit 16 [425].
[127] Exhibit 16 [428].
Wayne confirmed that at the meeting of the Executors in October 2011, Ross had admitted that he owed money to Thomas and Shirley.[128]
[128] Exhibit 24 [95].
Consequently, I prefer the evidence of Ross and Wayne to that of Terry as to what occurred at the meeting on 20 October 2011. The evidence does not support the conclusion that Ross denied his liability to the Estate during the meetings on 28 September 2011 or 20 October 2011. On the contrary, the evidence established that during those meetings Ross accepted he had a debt to the Estate. Ross continues to acknowledge that he has a debt to the Estate.

Whether Ross' position in relation to the amount he owes to the Estate has been inconsistent and whether Ross has attempted to minimise the amount owed

Terry's evidence was that Ross' position in relation to the amount he owes the Estate has been inconsistent over time. Terry pointed, for example, to the fact that in the application made by Ross and Ray for the grant of probate in respect of the Amended Will, Ross' debt to the Estate was said to be $160,000.[129] Terry claims that at other times, Ross had denied that he owed anything at all.[130]
[129] Exhibit 1-159.
[130] Exhibit 2 [98]; ts 295 - 296.
At one point in cross-examination, Terry suggested that he and Ross had had a conversation in which Ross 'tried to put forward a position that he only owed [$140,000]'.[131] That conversation was not referred to in Terry's witness statement. Terry's explanation for why he had not mentioned the conversation in his witness statement was that 'I don't feel like writing six libraries'[132] and later that 'maybe I've missed it'.[133]
[131] ts 247.
[132] ts 247.
[133] ts 247.
Terry also gave evidence of a discussion he had with Ross on 24 September 2011, in which he put to Ross that he owed $175,000 and Ross told him he would agree to pay $80,000 but not $175,000.[134] However, in cross‑examination,[135] Terry claimed that in that conversation, he had put to Ross his claim that Ross owed $250,000 to the Estate.[136] In other words, Terry claimed that Ross owed a further $75,000 over and above the $175,000 which Terry had previously claimed was owed. This additional loan amount was not mentioned in Terry's pleading, and he did not provide any discovery of documents in relation to it.[137] Terry's evidence about this additional loan was vague and inconsistent. Terry claimed that in 1977,[138] Ross borrowed $75,000 from his parents in order to pay off a home loan owed by Roslyn's mother (referred to as Mrs Pell).[139] Terry claimed that he knew of this additional loan because he recalled that in 1977 (when Terry was 11 years old) he 'was in the kitchen when mum and dad and Ross were talking about paying out Mrs Pell's mortgage'.[140] Terry's evidence was that the amount of the loan to repay Mrs Pell's mortgage was 'most probably 15 or $20,000, whatever'[141] and that Terry now claimed it was a $75,000 loan 'because mum and dad never got any interest on it or anything like that'.[142] Terry then said that the amount of the loan changed as 'they agreed on another amount that just kept rolling over ... and mum and dad never got their money back'.[143]
[134] Exhibit 2 [92].
[135] Exhibit 2 [89].
[136] ts 281.
[137] ts 284.
[138] ts 284.
[139] ts 281.
[140] ts 300.
[141] ts 300.
[142] ts 301.
[143] ts 301.
Terry acknowledged that up until the point that it was mentioned in his cross-examination, he had not alleged that there was an additional $75,000 loan to Ross.[144] His explanation was that he 'forgot about it at the time'[145] and that 'not all facts have been made available to me right from the start'.[146] However, Terry later said, in relation to this alleged loan to Ross, that he 'remember[ed] it clearly. I just hadn't recalled it or put it in'.[147] Terry's explanation for why no further evidence had been provided about this additional loan was that 'well, there's a limit of what you can put in here'[148] and that 'I've had a lot of things going on in my life … in the last three or four years … and it's not easy to remember every single issue'.[149]
[144] ts 282.
[145] ts 283.
[146] ts 285.
[147] ts 300.
[148] ts 282.
[149] ts 301.
Terry also claimed Thomas and Shirley had loaned a further $75,000 to Ross' company, Markim Holdings Pty Ltd. (Terry's claim in relation to that alleged loan is discussed separately below.) In cross-examination, Terry was asked whether he contended that Ross in fact owed $325,000 to the Estate (namely the $175,000 claimed in his pleading, plus the $75,000 he alleged was owed by Markim Holdings, plus the further $75,000 loan to pay Mrs Pell's mortgage). Terry's evidence was 'yes. Well, it could be. I don't know.'[150]
[150] ts 281.
I do not accept Terry's claim that Ross' position in relation to the amount he owes the Estate has been inconsistent over time. Terry's evidence in support of this claim was inconsistent and wholly unpersuasive, and demonstrated that Terry was clearly willing to exaggerate or elaborate his evidence to his own advantage.

Evidence given by Greg and Ann

Terry also relied on evidence from Ann and Greg to support his claim that Ross owes the Estate $175,000 and that Ross' position in relation to the amount he owes the Estate has been inconsistent. Their evidence was that Ross had told both of them that he owed the Estate $175,000.
Ann's evidence-in-chief was that[151]
After Fathers death Ross said to me, at my house, on several occasions, plainly 'I owe $175,000 to the Estate. I am happy to put the money on the table if everyone else puts on the table what they owe'.
[151] Exhibit 9 [16].
Greg's evidence-in-chief was that[152]
After Dad's death Ross said to me, at my house, on several occasions, plainly 'I owe $175,000 to the Estate. I am happy to put the money on the table if everyone else puts on the table what they owe'.
[152] Exhibit 14 [19].
Ross denied making any such statement. However, Ross recalled that in a conversation with Ann, while Thomas and Shirley were still alive, he told Ann that his parents had lent him $175,000 (which Ross said was a reference to how much his parents had given him, and not to how much he owed to them).[153]
[153] Exhibit 16 [160] - [164].
Ann and Greg were cross-examined at some length about the fact that the quote included in each of their witness statements (as to what Ross said about his debt to the Estate) was in almost identical terms. (They were also cross-examined about the similarity in their statements in respect of another conversation with Ross concerning the Coronation Road property, which is discussed below).
In cross-examination, Greg recalled that he had a conversation with Ross after Thomas died in which Ross told him he owed $175,000. Greg's evidence was that in that conversation, Ross said that 'when the rest put their money on the table he will put his on the table too'.[154] Greg said that he had a similar conversation with Ross about two weeks after that also, during which Ann was present.[155]
[154] ts 507.
[155] ts 507.
Ann was less emphatic about her recollection of her conversation with Ross. She acknowledged that Ross had admitted owing money to his father's estate,[156] and that he had told her that 'if everybody else paid up what they owed he would put his money on the table as well'.[157] However, Ann conceded that she did not recall the exact words that Ross had used.[158] She denied that she could have been confusing her recollection with a conversation in which Ross told her that his parents had loaned him $175,000.[159]

The preparation of witness statements for Ann and Greg

[156] ts 457.

[157] ts 453.

[158] ts 454.

[159] ts 457.

The evidence given by Ann and Greg was that in preparing their witness statements they relied on diaries that they maintained at the time. Ann's evidence was that initially she and Greg sat down with her diary and prepared a 'rough copy' of their witness statements, which they then gave to Terry.[160] At first she accepted that it was 'possible' that they had had a discussion while they were writing out their statement,[161] but she ultimately conceded that when she and Greg sat down to prepare the first draft of their witness statements, that they probably discussed the conversation and agreed that the quotes they attributed to Ross were what Ross had said to them.[162]
[160] ts 444.
[161] ts 452.
[162] ts 455.
In addition, Ann was asked whether, in the 12 months after Shirley's death, she had discussed Ross' debt to the estate of $175,000, his offer to sell Coronation Road for $850,000, with anyone. Her evidence was that she and Greg (and Bradley) 'always talked about it around the table'.[163]
[163] ts 462.
Ann's evidence was that sometimes she was reliant on her diary as to what was actually said on particular dates, and sometimes she had a recollection in her own mind of what was said.[164] Ann acknowledged that she did not have a diary entry referring specifically to the amount of the loan she claimed had been acknowledged by Ross.[165]
[164] ts 445.
[165] ts 454.
Greg's evidence, in cross-examination, as to how the witness statements were prepared, was inconsistent with Ann's evidence. Greg claimed that the fact that he and Ann had an identical recollection of the words used by Ross was simply a coincidence.[166] In addition, Greg said that when he and Ann first prepared their witness statements, they did not talk about the events to remind each other what had happened but rather that they had each prepared their own statement.[167] He claimed that he wrote out his statement, over the course of about a week. However, Greg later acknowledged that on some of the occasions on which he was preparing that statement, Ann was present, and on some occasions they discussed aspects of it.[168]
[166] ts 509.
[167] ts 497.
[168] ts 499.
Greg said that in preparing his draft witness statement, he relied on notebook and diary entries he himself had made, to jolt his memory.[169] (None of those had been attached to his witness statement, nor were they produced in Court.[170]) Greg also acknowledged that his diary contained entries written by Ann, as well as by Greg himself,[171] but that he did not rely on the diary entries in Ann's handwriting to refresh his memory, and only had regard to his own entries.[172]
[169] ts 497.
[170] ts 497.
[171] ts 502 - 504.
[172] ts 505.

Terry's disregard for the need to administer the Estate as expeditiously as possible in the interests of the beneficiaries under Shirley's Will

[553] ts 357.

[554] ts 357.

Terry has made it clear on numerous occasions that he has no concerns about the time and cost which may be involved in his pursuit of all of the 'assets' of the Estate.
In one of the Circulars to the Siblings, he wrote that 'I will bury you in paperwork and this estate will go nowhere for years'.[555] In another of the Circulars, he wrote:[556]
You see people I have had enough of playing games with you. Hard and fast decisions are just around the corner. … All of you have been given the opportunity to cough up.
When I close my door it stays closed. It will be on for young and old and I will pursue all matters to my complete satisfaction.
For those of you who underestimate my abilities and resolve do so at their own peril. Do not blame it on me. You people have made your own bed and you must be prepared to sleep in it. …
All matters could have been settled a year ago but this continual denial of the factual events … has only hurt each of you. Time is on my side. After all I am the baby of the family.
[555] Exhibit 1-587.
[556] Exhibit 1-593.
When asked whether this was still a fair statement of his current sentiment, Terry said that he would instead say that if he was an executor 'I would pursue all matters that were reasonably pursuable'.[557]
[557] ts 381.
In a letter he sent to Wayne's solicitors, Peel Legal, dated 13 November 2012, in relation to the Fitzpatrick Street units, Terry made a number of allegations about Wayne's conduct, and then observed:[558]
What this whole process [is] about is the correct recording of the Assets and Liabilities of our parents as at their death.
…
If your client wants to continue his stand then I can get a Caveat just like that. Nothing will go nowhere for years. This whole matter can get as nasty and prolonged as your client desires. I can accommodate your clients every desires in that respect.
[558] Exhibit 5.
At one point in his evidence, I asked Terry whether it mattered how long the recovery of the assets of the Estate took, from the viewpoint of the beneficiaries. His answer was:[559]
I've waited that long for any sort of entitlement or advancement in life that another 10, 20 years won't make a difference, because I've already waited 40 or 50 years. To get nothing, it's like - no, well, it's only my sister Ann who's a lot further advanced in life … that has really been disadvantaged here.
[559] ts 381. However, Terry then accepted that the better course may be to make an early distribution to Ann: see ts 381 ‑ 382.
Not surprisingly, Ann's evidence was that she would prefer that any money that could be realised from the Estate be distributed among the beneficiaries without further delay, rather than being expended on litigation.[560]

Terry is incapable of independently, objectively and impartially assessing whether the Estate has any claim against Ross, Ray, Wayne, Nathan and Morgan
[560] ts 437 - 438.

The evidence to which I have already referred suggests that Terry is incapable of independently, objectively and impartially assessing whether the Estate has claims against any of the Siblings. That conclusion is also supported by the evidence that Terry intends to pursue what he regards as the assets of the Estate, including through litigation, apparently without serious regard for the prospects of success of that litigation.
Terry's evidence was that if he is made the executor of Shirley's will, he will pursue proceedings against Ross, with the objective of bringing the proceeds of the sales of the Coronation Road property and Camarri's farm back into the Estate.[561] He also intends to sue Wayne, on the basis that the Estate has an interest in the Fitzpatrick Street units.[562] Further, Terry intends to sue Ross for the debt he believes Ross owes to the Estate (that is, $250,000 - as discussed at [92] above), as well as suing Markim Holdings Pty Ltd for $75,000, which Terry considers it owes the Estate.[563] In addition, Terry intends to sue Ray for the $60,000 he considers that Ray owes the Estate.[564] Finally, Terry intends to sue Tracenia Nominees Pty Ltd as the trustee for the Wayne Woodley Family Trust, for distributions he considers ought to have been made[565] (although the basis for that claim was far from clear).
[561] ts 286, 353, 406 - 407.
[562] ts 286, 353, 406 - 407.
[563] ts 286, 353, 406 - 407.
[564] ts 286, 353, 406 - 407.
[565] ts 286.
As I have explained above at [161], the evidence on which Terry relies as the foundation for his claims that the Estate has an interest in the proceeds of sale of the Coronation Road property, and the sale of Camarri's farm, is not sufficient to establish any such interest. The vehemence with which Terry has so far expressed his claims, apparently without the benefit of considered legal advice as to whether the Estate in fact has a claim, gives rise to the concern that as an executor, Terry would not take a dispassionate and objective approach to decisions about these matters.
Terry also indicated that if he is confirmed as an executor of Shirley's will he intends to instruct lawyers to defend a claim made by Wayne against Terry personally in respect of ownership of the Fitzpatrick Street units. Terry intends to use the funds of the Estate to do so, because he sees that course of action as 'get[ting] back the Estate's assets'.[566]
[566] ts 341.
Terry explained that in order to fund such legal proceedings he would either have to sell or mortgage one of the vacant Waroona lots or seek to engage solicitors who would seek to recover their fees only in the event that the action against Wayne were successful.[567] He also confirmed that he did not intend to voluntarily indemnify the Estate against any cost liability it incurred in pursuing such litigation.[568]
[567] ts 341.
[568] ts 344.
It is apparent that in forming the view that he will commence such proceedings on behalf of the Estate, Terry has not obtained any, or any proper, legal advice in respect of the various claims he intends to pursue. At most, he has simply 'bounced the idea[s] off a couple of people … off ex-uni mates and people in the legal field'.[569] However, Terry asserted that he would 'take legal advice along the way of what's reasonable and what's not reasonable'.[570] Terry also claimed that his position had 'mellowed'[571] and that it was no longer the case that he:[572]
would go no matter what the outcome. Again, take legal advice and if you can pursue a matter and there's a very good expectation that you're going to achieve something you pursue it but if … you get two opinions and they both tell you you're wasting your time, well, you got to accept it.
[569] ts 371.
[570] ts 354.
[571] ts 370.
[572] ts 370.
However, I have serious reservations about Terry's assurance that he will obtain legal advice about whether to pursue claims on behalf of the Estate, in view of his repeated statements to the Siblings that he will pursue his claims regardless of the consequences. By way of example, Terry told his Siblings that 'I will pursue any material contentious issues fully, no matter what the outcome and consequences may be to me and my fellow siblings'.[573] In another letter, he told his Siblings 'never. I repeat, never underestimate my abilities and dogmatic attitude in pursuing this matter'.[574]
[573] Exhibit 1-590.
[574] Exhibit 1-587.
Furthermore, given the strength of Terry's views, I have reservations as to whether he would accept legal advice which was contrary to his own view in any event. He has been reluctant to submit to the views of others in the past. By way of example, when it first became apparent that the Executors would be unable to work co-operatively to administer the Estate, the Executors had discussions with Mr Reyburn (from Nicholson Clements) in relation to the possibility of appointing an accountant as an administrator of the Estate. At that stage, Terry refused to relinquish his position as executor unless the proposed administrator agreed with Terry's view of what constituted assets of the Estate (including the Coronation Road property and the Fitzpatrick Street units).[575]

Conclusion

[575] Exhibit 1-590; ts 368.

The matters discussed at [392] ‑ [399] support the conclusion that Terry should be passed over as an executor of Shirley's will. I have not reached that view lightly. But taking all of these matters into account, the compelling conclusion is that Terry is incapable of objectively and dispassionately carrying out the role of an executor, so that to permit him to remain an executor would not be in the best interests of the administration of the Estate, or of the beneficiaries of the Amended Will.

Terry stands in a position of conflict between his own interests and the interests of the Estate

In my view, there is a further reason why Terry should be passed over as an executor of Shirley's will, and that is that he will inevitably be subject to conflicts between his personal interests, and the interests of the Estate, and I am not persuaded that he will be able to adequately manage those conflicts of interest.

Terry's position in relation to his debt to the Estate

The defendants plead that Terry is indebted to the Estate in the sum of $48,016, but that he refused to acknowledge any such debt until the meeting of the Executors on 20 October 2011.[576] The tenor of the evidence given by Ross, Ray and Wayne in support of this allegation was that initially Terry denied owing Thomas and Shirley any money in respect of a loan, and that it was only at the meeting of the Executors on 20 October 2011, when Ross produced a bank statement showing a transfer from Thomas and Shirley to Terry, in the amount of $48,016, that Terry admitted that he owed that amount to the Estate.[577]
[576] Defence 28.
[577] Exhibits 16 [433] - [434], 23 [72] - [74], 24 [95] - [96].
However, Terry's position in relation to the existence of this loan, and the extent of his liability to the Estate, was far from consistent. Terry's evidence‑in‑chief did not make any reference to a loan (or an advance) of $48,016, or to a loan or advance of any lesser amount. In cross‑examination, the explanation Terry gave for that omission was that he did not refer to those matters 'because I was trying to address the real key issues'.[578] Given Terry's apparent fixation on accounting precisely for every advance of monies by his parents to his Siblings, the explanation that he decided not to mention his own loan, for a significant amount of money, because there were other more important issues on which to focus, lacks any credibility.
[578] ts 253.
In contrast, in cross-examination, Terry claimed that in the spreadsheet he provided to the Siblings when they met for the reading of the will in September 2011, he had listed a loan made to him in June 2009, in the sum of $48,016. However, Terry's evidence was that that sum was[579]
just moneys that was advanced to me. Whether it was a loan or not is my own terminology … . There is no loan agreement. … I voluntarily put the word 'loan' on there because I knew that if I didn't put the word 'loan' on there it would upset the applecart.
[579] ts 249.
Consequently, Terry denied that the inclusion of that advance on the list of Estate assets was an acceptance by him that he was liable to repay those funds as a loan.[580]
[580] ts 249.
To similar effect was Terry's evidence concerning the statement of the assets and liabilities of the Estate, which he prepared for the purposes of his application for the grant of probate in respect of the Original Will. In that statement, Terry referred to the advance of $48,016 as a loan. However, in cross-examination, Terry maintained that he did so because he 'just wanted to keep peace with everyone'.[581]
[581] ts 256.
Terry also sought to advance an alternative explanation in the course of his cross-examination. He claimed that he was not indebted to the Estate in the amount of $48,016 because he was entitled to an 'offset in credit' to reflect money he had advanced to his parents, and which he was entitled to have deducted from the amount he owed the Estate. Terry claimed that he had advanced $21,000 to his parents.[582] However, the spreadsheet Terry prepared, and distributed at the meeting in September 2011 for the reading of Shirley's will, contained no reference to that advance, or to any offset on the loan to Terry in recognition of that advance.[583] Terry's explanation was that 'it just simply slipped my mind'.[584] He also claimed that he could not remember when he had made the advance of $21,000 to his parents, although he thought it was probably in 2003 or 2004.[585]
[582] ts 250.
[583] Exhibit 1-589.
[584] ts 250.
[585] ts 250.
In an email communication with the Defendants' solicitors in July 2015, Terry had described the payment of $48,016 which Thomas and Shirley made to him in 2009 as 'a repayment of this private advance that I had given them previously plus a gratuitous gift'.[586] However, in cross‑examination, Terry acknowledged that that was not how his father had described the payment of $48,016 when it was made to Terry.[587]
[586] ts 253.
[587] ts 254.
Furthermore, after Thomas' death in 2009, Terry provided information to Nicholson Clement to assist them in preparing (on Shirley's behalf) a statement of the assets and liabilities of Thomas' estate. In that information, he simply noted that a term deposit which had been held by Thomas had been 'cashed in. $ given to son Terry'.[588] His evidence was that he did not tell Nicholson Clement that the payment to him of the funds from that term deposit constituted a repayment of his loan to Thomas and Shirley of $21,000 and a gift of the balance. His explanation for that omission was that he 'hadn't recalled it at that time'.[589] That explanation has no credibility in view of the fact that the $48,016 had only been advanced to him in June 2009.[590]
[588] Exhibit 1-538.
[589] ts 269.
[590] See ts 269.
At one stage in his evidence, Terry indicated that he would repay the amount of $48,016 to the Estate.[591] Ultimately, however, it appeared that Terry's view - in relation to his alleged debt of $48,016 to the Estate - was that it would be 'fair and reasonable' for him to simply pay to the Estate the difference between $48,016 and $21,000, plus interest.[592] And he also said that if he were appointed executor of Shirley's will, he would not repay the entire amount of $48,016 but would instead make a counter claim for the amount owing to him (that is, the $21,000).[593]
[591] ts 287, 353, 406 - 407.
[592] ts 254.
[593] ts 257.
If Terry had manifested an intention to repay to the Estate whatever amount was found to be owing by him, his earlier prevarication in relation to whether he owes a debt to the Estate, and the amount of that debt, would not be so significant in the overall assessment of his fitness to act as an executor of Shirley's will. However, Terry did not confirm that he would repay to the Estate whatever debt he was found to owe.
It is not necessary for present purposes to determine whether, and if so, in what amount, Terry is liable to the Estate. For present purposes, my concern lies in the fact that Terry is clearly subject to a conflict between his personal interest in minimising any liability to the Estate, and his duty as an executor of Shirley's will to recover the assets of the Estate. Terry's previous position in relation to the alleged debt has left me with a sense of unease that he would be able to manage this conflict, such as by agreeing to abide by the determination of an independent third party.
In my view, this factor, when viewed in conjunction with the matters referred to at [414] ‑ [421] below, warrants passing over Terry as an executor of Shirley's will.

Other conflicts of interest

In so far as Terry intends to pursue, on behalf of the Estate, claims against Ross, Ray, Wayne, Nathan and Morgan, Terry has a conflict of interest in respect of those claims. That is because Terry will be a beneficiary of the testamentary trust, and it will therefore be in his own interests for the residue of the Estate to be as large as possible. That is a conflict of the kind which applies to any claim against, or to the benefit of, an executor who is also a beneficiary of an estate. Such conflicts are not necessarily, of themselves, grounds for passing over an executor.
However, that is not the only matter in respect of which Terry would have a conflict between his duty to act in the best interests of the Estate, and his self-interest. In separate proceedings Terry has commenced in this Court, he has claimed an equitable interest in the proceeds of the sale by Ross of the Coronation Road property. According to his pleading in that action, which was in evidence,[594] Terry claims an interest as a result of unconscionability and proprietary estoppel. (Terry alleges that between 1992 and 2010, Thomas and Shirley regularly told him that the Coronation Road property would be his when they passed away, that they encouraged him to contribute his own labour and financial contributions to the maintenance and improvement of the Coronation Road property, that Terry acted to his detriment by contributing his labour, and making financial contributions to the improvement of that property, that Ross was aware or had constructive knowledge of these facts, and that it would be unconscionable to deny Terry an interest in the Coronation Road property or the proceeds of the sale of that property.[595]) Consequently, if Terry is an executor of Shirley's will, he will clearly be subject to a conflict of interest between the claim he has made in his personal capacity to the proceeds of the sale of the Coronation Road property, and the claim he intends to bring on behalf of the Estate to the proceeds of the sale of the Coronation Road property. Terry acknowledged that conflict in the course of his evidence.[596]
[594] Exhibit 11.
[595] Exhibit 11.
[596] ts 360 - 361.
Terry accepted that this conflict meant that it would probably be necessary for someone else to represent the Estate in the proceedings he has commenced (in his personal capacity) with respect to the proceeds of the sale of the Coronation Road property.[597]
[597] ts 361.
As I have discussed above, Terry also claims that the stock, hay and machinery, which were on the Coronation Road property at the date of Shirley's death were assets of the Estate, and that Ross must account to the Estate for them. However, in the course of his cross-examination of Ross, it appears that Terry may also consider that he has a claim against Ross, in his own right, on the basis that some of the stock and other assets on the Coronation Road property were his, or that he is entitled to an account from Ross for them, on the same basis as his claim in respect of the proceeds of the sale of the Coronation Road property.
Terry would also be subject to a similar conflict of interest in respect of the Fitzpatrick Street units. As I noted at [314], there is a dispute between Terry and Wayne in relation to units 14A and 14B Fitzpatrick Street, which is also the subject of other proceedings in this Court. It is neither necessary nor appropriate to say much about those proceedings, other than that the dispute appears to have arisen after Wayne decided not to proceed with the proposal to contribute the Fitzpatrick Street units to a distribution of family properties. It appears that by the time that he made that decision, Terry had expended a considerable amount of money in renovating units 14A and 14B. Wayne alleges that in about July 2011, Terry managed to take control of units 14A and 14B.[598] Wayne alleges that he was not able to regain possession of units 14A and 14B until those units became vacant in about October 2015.[599] Wayne's evidence was that Terry retained the keys, held himself out as the owner, and received all the income from units 14A and 14B during that period.[600] In 2013, Wayne commenced proceedings in the Magistrates Court to recover possession of units 14A and 14B and any rental income generated from those units.[601]
[598] Exhibit 24 [101] - [102].
[599] Exhibit 24 [104].
[600] Exhibit 24 [105]; see also Exhibits 1-246 ‑ 1-250, 1-604 - 605.
[601] Exhibit 24 [106].

Terry accepted in cross-examination in this trial that he had refused to provide an account to Wayne of the amount of the rental income he had received in respect of the Fitzpatrick Street units.[602] His explanation for that refusal was that his Siblings refused to accept that the units were assets of the Estate.[603]
[602] ts 355.
[603] ts 395.
As I have already noted,[604] proceedings have also been commenced in this Court, which concern the question whether Terry has an interest in Units 14A and 14B Fitzpatrick Street, and whether the Estate itself has an interest in the Fitzpatrick Street units.
[604] See footnote 80.
Were Terry to continue as an executor, he would inevitably be subject to a conflict between his personal interest in establishing an equitable interest in Units 14A and 14B Fitzpatrick Street (in the context of the litigation involving Wayne) and his view that the Estate should pursue what he regards as its interest in the Fitzpatrick Street units.

Conclusion

The matters referred to in [360] provide a compelling basis for concluding that Terry should be passed over as an executor of Shirley's will.

Should all executors be passed over and an independent third party be appointed as the administrator of Shirley's Will and the trustee of the testamentary trust?

In about 2011 and again in about 2013, there was some discussion among the Executors as to whether they could agree to the appointment of an independent third party as administrator of Shirley's Will.[605] However, those discussions came to nothing as Terry would not agree to the proposal without the imposition of numerous conditions, including an agreement that the Estate comprised all of those assets that he maintained were assets of the Estate.[606]
[605] See, eg, Exhibit 1-207.
[606] Exhibit 23 [60]; see also Exhibit 1-590.
More recently, enquiries were made of an accountant who might be in a position to act,[607] and of the Public Trustee.[608] Each of those enquiries resulted in a very general estimate of the likely cost of the appointment of a third party to act as the administrator and trustee. The enquiry to the Public Trustee, for example, indicated that in the event of legal action in respect of the assets and liabilities of the Estate, the cost of administering the estate would probably be 'considerably more' than $25,000.[609]
[607] Exhibit 1-629.
[608] Exhibit 1-631.
[609] Exhibit 1-631.
I have given very careful consideration to whether an independent administrator should be appointed. The idea was not without its attraction. However, I have concluded that it is not appropriate to appoint an independent third party to be the administrator of the Estate, for three reasons. First, as I have been at pains to explain above, Terry has not established any basis for passing over Ross and Ray as executors. In those circumstances, it is not appropriate to pass over them so as to appoint an independent administrator, simply because that might avoid continued disputes between the Siblings. Secondly, the value of the assets of the Estate appears to be modest. On the other hand, the actual, and potential, litigation, in which the administrator may become involved, suggests that a very substantial cost is likely to be incurred by the Estate if it is administered by a third party. It would not be in the best interests of the beneficiaries for that to occur. Thirdly, the Executors are also to act as the trustees of the testamentary trust. It is not desirable to involve a third party in the administration of that trust, which is intended to operate as a discretionary family trust.

Conclusion

Terry's action should be dismissed. The primary relief sought by the Defendants in the counterclaim should be granted. There will be a grant of probate to Ross and Ray in respect of the Amended Will, and Terry should be passed over as an executor of the Amended Will and a trustee of the testamentary trust.
I will hear from the parties in relation to the orders which should be made.