A solicitor's nightmare of feuding siblings as executors
By Michael Dolan
You are acting for two sisters who, with a third sister, were appointed as executors of their late mother’s Will. Another solicitor is acting for the third sister. Like many family feuds this one has survived the mother’s death and has spilled over into the administration of her estate. It all started to go wrong when your clients attended their late mother’s home and removed chattels including items of jewellery. There are other beneficiaries under the Will. What might you advise your clients to do to break the deadlock?
This is not an uncommon situation faced by solicitors acting in family wills and estates matters, and was the situation in the case of Re Arklie (No 2)  VSC 350 decided in May 2019 in the Supreme Court of Victoria. (1)
Mavis Arklie died on 10 December 2017. She was survived by five daughters, six grandchildren, and one great-grandchild. Under her last will dated 29 August 2017, the deceased appointed as her joint executrices three of her five daughters, Pamela, Linda, and Marina. When the matter came before the court for hearing, the executrices had not made an application for probate of their mother’s estate.
Pamela and Linda sought orders from the court that they and their sister Marina be passed over as executrices of the will and that Letters of Administration with the will annexed be granted to State Trustees Ltd which had consented to being appointed in the event that the Court determined that it would be appropriate for an independent administrator to be appointed.
Marina resisted the orders sought on the basis that she had at all times been willing to cooperate with her two sisters to obtain a grant of probate, provided that the chattel dispute was first resolved. She contended that ‘special circumstances’ did not exist to justify the Court making orders to pass over the named executrices. Marina submitted that a named executor should only be passed over in the ‘clearest of clear cases,’ and that this was not such a case.
Justice Moore made the following conclusions on the evidence:
“25 I consider that the evidence before the Court establishes that the relationship between the plaintiffs and the defendant has deteriorated to a point where the degree of dysfunction and acrimony between them is such that there is no realistic expectation that they will be able to work together in the best interests of the deceased’s estate. This characterisation, as I have explained in my review of the authorities, constitutes circumstances of a sufficiently special character which warrant the Court taking the serious step of passing over the plaintiffs and the defendant as executrices of the will and granting letters of administration with the will annexed to State Trustees.
26 My conclusion as to the dysfunctional and acrimonious nature of the parties’ relationship is based on a number of matters. First, even before the commencement of this proceeding, the conflict between the parties had already resulted in litigation in the form of the first proceeding. The fact that the defendant was unwilling even to instruct the deceased’s solicitors to produce the deceased’s will on the request of her co-executrices when nearly a year had passed since the deceased’s death, resulting in the plaintiffs commencing the first proceeding, speaks to a highly conflictual and mistrustful relationship between the parties.
27 Secondly, the ongoing chattel dispute demonstrates the mistrust between the parties and their inability to work together to administer the deceased’s estate efficiently and without further delay. It is unnecessary for the purposes of this proceeding for the Court to enter upon and make findings about the various claims made by the parties, and particularly the defendant, in relation to the various actions and claims surrounding the chattel dispute. It is sufficient to observe that the protracted nature of the chattel dispute indicates that the parties are at irreconcilable odds with each other which prevents them from pursuing the due and proper administration of the deceased’s estate. The ‘ongoing stalemate’ between the parties, as it was aptly characterised by McMillan J in a judgment on costs relating to the first proceeding, stems from their inability to resolve the chattel dispute and obtain a grant of probate, thereby jeopardising the due and proper administration of the deceased’s estate.
28 Thirdly, as noted in paragraph  above, by December 2018, the defendant felt it appropriate to inform the plaintiffs that it would be necessary to file a police report in respect of inventory said to have been removed from the Bentleigh property.
29 Fourthly, the evidence before the Court establishes that, in about January 2018, the defendant changed the locks on the Bentleigh property without first notifying the plaintiffs. The first plaintiff’s uncontradicted evidence is that the keys to the Bentleigh property have never been subsequently delivered or made available for collection, notwithstanding correspondence from her solicitor on 2 February 2018 proposing arrangements for collection of the house keys or delivery of same.
Justice Moore’s final conclusion based on authority and the evidence was that:
“30 The matters referred to above indicate that the relationship between the parties is acrimonious and dysfunctional to a degree such that there can be no realistic expectation that they will be able to work together in the interests of the deceased’s estate. In my view, the continued appointment of the plaintiffs and defendant as executrices jeopardises the due and proper administration of the deceased’s estate and is not in the best interests of the beneficiaries.”
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Michael Dolan is an Australian Legal Practitioner. Michael was previously a Senior Ethics Solicitor at the Law Institute and is passionate about legal ethics. Michael enjoys advising and assisting other lawyers to respond to their ethical challenges.