Administrator ad litem

Alan and Gwyneth Grant married in 1953 and had five children, Nerez, Seth, Ryven, Miles and Tansin. Gwyneth died in May 2017 and Alan in November 2019. The Grant family life was marred by conflicts that had to be resolved by Court proceedings through their estates, which were parties to two sets of proceedings that were heard together.

Action by administrator ad litem

An administrator ad litem is a person appointed by the court (if there is no existing executor or administrator of the estate or if the executor or administrator has a conflicting interest) to represent the estate during a lawsuit- if there is no existing executor or administrator of the estate, or if the executor or administrator has conflicting interests.

The Proceedings

Alan commenced proceedings against his daughter Nerez Grant who as her father’s attorney had transferred a property at Killcare to her daughter Kashaya on 27 September 2017. Additionally, Allan sought sums of $100,000 and $34,700 that Nerez had transferred out of his bank account. Following Alan’s death, his estate was represented by his son Seth as administrator ad litem.

Power of Attorney

Alan’s power of attorney did not authorise Nerez to make gifts of real property. The transfer executed by Nerez expressed consideration of $900,000 in favour of Alan; however, no consideration was paid.

Nerez and Kashaya submitted a copy of a typed letter purportedly sent by Alan directing Nerez to transfer the property to Kashaya. The letter was signed “Alan”. The Court accepted the evidence of a handwriting expert, finding the transfer constituted a fraud to which Kashaya was a party.

The Court held that Nerez had breached her fiduciary duty in a dishonest and fraudulent scheme to transfer Alan’s interest in the Killcare property to Kashaya and in debiting $34,700 from Alan’s account to pay transfer duty to the Office of State Revenue; ordering that the Killcare property be transferred to the administrator for no consideration.

Similarly, the Court held the sum of $100,000 transferred from Alan’s bank account by Nerez be held on trust for the estate.

Family Provision claim

Nerez sought a family provision order from Gwynneth’s estate. The Court dismissed the claim finding that Nerez had already received substantial benefits from her mother and had ill-treated her parents. Ordering Nerez to pay the estate’s costs of the family provision proceedings.

The Appeal

On appeal, Nerez and Kashaya submitted that the court failed to consider “expert reports in evidence supporting the(ir) case”, and that Alan intended that the property remain out of the hands of Seth and his sister Tansin.

In dismissing the appeal, the full court found the appellants failed to identify any “expert reports” supportive of their case; affirming that Kashaya was a party to obtaining title by fraud.

Nerez challenged the family provision decision on several grounds including Alan’s dementia, several wills made by Alan under undue influence and an assertion of favouritism on the part of the primary judge.

The full court held that Alan’s dementia, which went to testamentary capacity, and the allegations of undue influence were irrelevant to the family provision proceedings against Gwynneth Grant’s estate. Nerez made no submissions to the court of appeal in support of the allegation of favouritism, additionally, a review of the transcript revealed no basis for the assertion.

The New South Wales Court of Appeal ordered Nerez and Kashaya to pay the legal costs of the estate.

 

Multiple Wills, Codicils & Estrangement

David Lewis and his brothers Peter, Roger and Hugh had a history of conflict and estrangement which renewed around March 2012.

Background

In May 2010 Pamela Lewis instructed her solicitor to make a will dividing her estate into five equal shares with each of her sons to receive one share. The remaining share was to be divided between her seven grandchildren.

Pamela’s son Peter (a solicitor) prepared a Will for his mother in 2011 containing minor changes to her previous Wills. However, Pamela signed the document, and later Peter had her neighbours sign as witnesses putting the validity of the Will at risk.

Between 2012 and 2015, David instructed a solicitor to prepare several testamentary documents however it wasn’t clear if the instructions reflected David or Pamela’s intentions.

Pamela died in 2017. David sought probate on Pamela’s December 2014 Will and two 2015 codicils (“2014 Will and Codicils). Pamela’s son Peter claimed she lacked testamentary capacity to make the 2014 Wills and codicils and did not understand or approve their contents. Peter sought Probate on a 2011 Will, along with two of the four following codicils (2011 Will and codicils) In the alternative if the Court found both Wills invalid, then Pamela’s July 2010 Will should be admitted for Probate.

The decision


At first instance, the Court found that Pamela had testamentary capacity but had not been shown to have known and approved the clauses of the 2014 will and its codicils which conferred powers on David. Accordingly, the Court admitted part of the 2014 Will along with three clauses of the August 2015 codicil into Probate. The 2010 and 2011 Will were not included in the grant ofbprobate but were used to confirm the testator’s testamentary capacity.

The Court expressed concern with Peter’s conduct in connection with the attestation of the 2011 will. As on the face of it, it may justify the referral to the Law Society for consideration of disciplinary action against Peter as a solicitor.

The Appeal

David appealed. The main issues in the appeal were:


• Whether the 2014 will had been read out loud to Pamela who then executed it;
• Whether, if so, the primary judge had erred in failing to find that she had known and approved the instruments.
• Whether the primary judge had erred in severing the 2014 will and one of its codicils.

The Court of Appeal rejected David’s appeal on grounds including that merely reading a will out loud to a capable testator does not mean that they know and approve the Will: additionally, the trial judge had not erred in severing the 2014 will and its codicils.

Probate Administration & the Unexecuted Will pt 2

Susan Sugars died on 23 March 2018 without leaving a will that had been executed with the formalities required by the Wills Act 1936 (SA). (”the Act”)

Susan was survived by the applicants her husband, Lynton , and two adult sons from a previous marriage, Jason and Darren Bridgman, who are the only issue of the deceased for the purposes of any administration of the deceased’s estate by way intestacy pursuant to section 72G of the Administration and Probate Act 1919 (SA).

Background

On 13 October 2016, Susan and Lynton instructed their solicitor to prepare mutual wills. The solicitor emailed a draft will on 7 November 2016, Susan replied the following day with additional instructions. On 17 November 2016, an amended draft will was emailed to Susan together with an explanation of recent changes.

Susan and Lynton responded on 4 July 2017, apologising for the delay in finalising the matter including  further amendments and concluding:

“Once these corrections have been made we will pay the invoice and send copies of the paperwork to our respective children to sign. Thank you for your patience in this matter.”

After updating the documents the solicitor replied on 17 July 2017, seeking further instructions concerning a proposed enduring power of attorney and concluding

“I will await your further instructions before sending through all of your amended documents.”

Susan and Lynton sent further instructions by  email on  24 July 2017, concerning their proposed enduring powers of attorney, advising that as Jason and Darren would be in Adelaide between 2 and 9 August 2017, it would be the ideal time to have them sign the documentation.

The solicitor replied via email on 25 July 2017, including proposed enduring power of attorney (EPA), advanced care directive (ACD) and a draft will.

The EPA and ACD were signed by Jason and Darren when they visited their mother between 2 and 9 August 2017. The will was not executed however, as all three of the applicants were named as executors and beneficiaries so couldn’t witness the execution of the will.

In August 2017, Susan was diagnosed with leukaemia; over the next few months she had inpatient treatment before dying unexpectedly in March 2018.

The application

The applicants sought probate on an unexecuted and undated four page typed document prepared by solicitors instructed by Susan. The document names the applicants as executors.

The applicants sought an order under s12(2) of the Act providing if the Court is satisfied that—

(a) a document expresses testamentary intentions of a deceased person; and

(b) the deceased person intended the document to constitute his or her will,

the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by the Act.

However as the Court observed in In the Estate of Graham deceased (1978) 20 SASR 198

“… s 12(2) is remedial in intent, … its purpose is to avoid the hardship and injustice which has so often arisen from a strict application of the formal requirements of a valid will, as dictated by s 8 of the Act…”

At 202

The decision

The Court was satisfied that the draft will conformed to the instructions Susan gave to her solicitor; had been approved of as at 4 July 2017 and that at that date Susan intended to execute a will in that form. Further, a latter draft only updating her address and sent on 25 July 2017 remained unexecuted for a short time before Susan was diagnosed with cancer.

Following her diagnosis Susan experienced a period during which she had multiple admissions to hospital and was focussed on her treatment. The Court accepted that Susan was of the belief that she would make a full recovery. Therefore the execution of the will was not seen as urgent.

In the circumstances, the Court was satisfied that the document:

(a)  expresses the testamentary intentions of the deceased; and

(b) the deceased intended, as at her death, the document to constitute her last will and testament.

 

 

Probate, Administration and the Unexecuted Will

In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], the NSW Court of appeal observed the questions arising on applications for letters administration of an informal will are essentially questions of fact to be answered being:

  • was there a document;
  • did that document embody the testamentary intentions of the deceased; and
  • the deceased by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part, operate as her, or his, Will?”

A similar approach was followed by the Queensland Court of Appeal in Lindsay v McGrath  [2016] 2 Qd R 160, where the Court observed:

“it is not enough that the document set out the deceased’s testamentary intentions…evidence must be submitted that the deceased intended the document to operate to dispose of their property upon death…”

In Western Australian in Oreski v Ikac [2008] WASCA 220.the Court of Appeal observed:

“It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased’s testamentary intentions, that is not of itself sufficient…It is…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.”

Background

David McNamara died suddenly on 25 July, 2020, he was intestate. In contemplation of his marriage a will had been prepared for David by a solicitor, naming his de facto partner Ema as executor; he had not executed it.

David and Ema had both attended a solicitor and gave instructions for the making of their wills; they received draft copies on 23 September 2019. Following further instructions a revised version of the document was forwarded by email on 27 September. On 7 October 2019, David said he was happy with the content and that he asked Ema to make an appointment with their Solicitor to sign their wills.

David was unavailable to attend the solicitor’s office as he was busy with his work; in March Eva and David married and following this, were concerned with COVID-19.

Consideration

In Re McNamara [2021] QSC 148 Ema sought a declaration under s 18 Succession Act 1981 (Qld) that the unexecuted will is David’s will, and sought a grant of probate. Alternatively, Ema sought a grant of letters of administration on intestacy.

“The Court must determine whether the document … forms a will … of the deceased person … that the person intended the document … to form the person’s will…”

Ema further submitted that due to David’s heart condition they isolated as much as possible during COVID-19, in particular during late March up to the date of his death. The Court held that although there were many opportunities for the deceased to make time to execute their wills, particularly from October 2019 to February 2020, the COVID-19 pandemic may have made that somewhat more difficult.

Importantly the Court found that in conversations David had indicated he was uncertain that the content of the unexecuted will expressed the testamentary intention of the deceased.

“His conduct bespeaks a lack of conviction or a hesitancy in perfecting his choice to favour his wife relative to his children, at least to the extent that the unexecuted will purported to do.”

Decision

The Court in granting Ema letters of administration of David’s intestate estate wasn’t satisfied that David had intended the unexecuted document to form his will.

Intestacy & the forfeiture rule

The forfeiture rule precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing: s3 Forfeiture Act 1993 (NSW)(“the Act”).

Where there is an unlawful killing that does not involve murder and the Court is satisfied that justice requires such modification, ss 5 and 6 of the Act provides that it may modify the effect of the forfeiture rule subject to such conditions as the Court thinks fit.

Background

Yiquing Wang died intestate on 24 October 2018, aged 36, as a result of injuries sustained in a motor vehicle accident in a car driven by her husband, Weimin Lu (husband). Under s112 of the Succession Act, a spouse is entitled to the whole of the deceased’s intestate estate. In this case, however, the forfeiture rule applies.

Yiquing, an only child, is survived by her husband, their young son and her parents, who had migrated to Australia from China. The husband plead guilty to dangerous driving occasioning death, and dangerous driving occasioning grievous bodily harm.

In June 2020, the husband was convicted and sentenced to two years and two months to be served in the community under the supervision of Community Corrections.

The proceedings

In Wang v Estate of Wang; Lu by his tutor Fang v Lu: [2021] NSWSC 717 the son sought a declaration that the forfeiture rule apply and that the administration of the deceased’s estate be granted to his guardian until he attained the age of 18 years. Additionally, the grandparents commenced proceedings to recover monies allegedly loaned to the deceased and for testamentary and funeral expenses.

The parties informed the Court that they had reached an agreement and the grandparents had withdrawn their objection to the settlement of the Probate proceeding; including an agreement in relation to the deceased’s superannuation. However, the Court must be satisfied that justice requires the rule to be modified: s5(3) of the Act.

The decision

The Court held that the husband’s conduct involved serious offences with criminal consequences. However, the motor vehicle collision which led to the deceased’s death was a tragic accident, with the husband showing considerable remorse. Additionally, there was no suggestion that the deceased’s death was premeditated or that the husband had sought to profit from it.

The major asset of Yiquing’s estate was the family home that the husband had made substantial financial contributions toward and where he lives with his son for whom he is the primary caregiver. The husband demonstrated that he has a real financial need for himself and his son; has limited financial resources and is unemployed.

The Court was satisfied that justice requires the forfeiture rule to be modified in this case to entitle the husband to the whole of the deceased’s estate, including the benefit he may receive with respect to the deceased’s superannuation and life insurance policy.

Rectification & the Mutual Will

Dino Cudia died on 29 March 2019; he was predeceased by his wife Lorraine, who had died on 29 July 2008. Dino had two children with Lorraine – Santina (the executor) and Andreas and three children from a prior marriage, Dean Maynard, Simon Maynard, and Adam Maynard (‘defendants’).

Mutual Will

Dino made a will on 18 June 2004 (‘will’) under a mutual will agreement (‘mutual will agreement’) with Lorraine, executed on the same day and prepared by a solicitor.

The solicitor explained to Dino and Lorraine that, when the first of them died, the mutual will agreement created a trust that had to be honoured by the survivor, and that the entire estate would eventually go to Andreas and Santina.

The solicitor gave evidence that when drafting the wills he took it upon himself to refer to Dino and Lorraine’s children and not to Andreas and Santina specifically and the reference to “my children” in the will was made in ignorance of the existence of the defendants.

Section 31 of t the Wills Act 1997(Vic) (‘Act’), provides that if the Court is satisfied that the will does not carry out the testator’s intentions because (a) a clerical error was made, or (b) the will do not give effect to the testator’s instructions it may make an order to rectify a will to carry out the intentions of the testator.

The application

Santina submitted that, if the will was not rectified, the effect would be that Dino and Lorraine’s estate would pass to different beneficiaries depending upon who died first in direct conflict with the expressed intention of the mutual will agreement.

Sabrina made an application to the Court to :

(a)add the words “Santina Giuseppina Trigazis (formerly Cudia) and Andreas Cudia” after the words “my children” at clause 3(c) and

(b) delete the words “my children” and replacing them with the words “my said children Santina Giuseppina Trigazis (formerly Cudia) and Andreas Cudia” at clause 4,

Santina’s application for rectification was made within time. Similarly, the defendants consented to Santina’s application to rectify the will, subject to their costs being reserved.

The decision

In granting the application the Court accepted the solicitor’s evidence that Dino and Lorraine intended that, upon their deaths, their entire estates would pass to Santina and Andreas, and that the reference to “my children” in the will was made in ignorance of the existence of the defendants.

The Court held Dino had not discussed his testamentary intentions with the defendants, and they were not involved in the preparation of the wills. Additionally, following the end of Dino’s first marriage, he didn’t have a close relationship with the defendants, and their stepfather raised them as if he were their father.



 

Admission of a Copy of a Lost Will to Probate

Jennifer Hartung sought to have a copy of a document said to be the Will of Horst Paul Hartung (the deceased) admitted to probate under s 10(2) of the Wills Act 2000 (NT) (the Act). The document was found in the deceased’s belongings and is believed to be a copy of his Will. Additionally, Jennifer sought a grant of probate of the deceased estate.

Section 10(2) of the Act allows the Court to accept a document that expresses the testamentary intentions of it’s maker but does not meet the formal requirements of the Act as their will. The Court held that in this case s 10(2) is not relevant as the document appears to be a copy of the Will that was executed according to the Act.

Copy of the Will

The copy of the Will (the copy) appoints Jennifer as Executor and leaves the deceased’s “share of the house plus contents of furniture plus the land and garage” to her. As the property was held as tenants in common an application for probate of the deceased’s estate is necessary to transfer the deceased’s share to Jennifer.

The deceased’s signature was identified on the document dated 6 April 1990 which was signed by two witnesses in the presence of each other, one of whom is now deceased.

Jennifer’s solicitor confirmed that the whereabouts of the original Will are unknown and believed that the copy is a true copy of the original. Further, the Court requested the solicitor make enquiries with the Office of the Public Trustee of the Northern Territory; these confirmed the Public Trustee is not in the possession of a Will for the deceased and has no interest in the estate.

The Decision

The following matters must be established when seeking a grant of probate of a lost Will: it must be established that there was a Will and that that Will revoked all previous Wills; the applicant must overcome the presumption that when a will is not produced it has been destroyed; there must be evidence of the terms of the Will and evidence of the Wills due execution.

The Court found that in the circumstances it is most unlikely that the deceased destroyed the Will intending to revoke it; on the balance of probabilities, the original Will was lost. Similarly given the particular provisions and bequests in the Will and that the copy was found in the deceased’s belongings, on the balance of probabilities, it is a true copy of the deceased’s Will.

The Court was satisfied on the balance of probabilities that the presumption in favour of destruction and change of testamentary intent is rebutted. As it is unlikely that the deceased would destroy his Will, change his testamentary intent and keep a copy of the revoked Will with his possessions.

The Court admitted the copy of the Will to Probate; granted Probate of the estate to Jennifer and ordered that costs of the application be paid out of the estate.

Partial intestacy & the Homemade Will

Angela Thompson died on 1 September 2017 having made a Will dated 3 October 2015; naming her husband Trevor executor. Clause 3(b) the Will stated that

‘I wish my children to remain in abode as long as it is deemed reasonable’.

However a later clause, (cl 4)  provided the executor with the power

‘to sell, exchange or otherwise dispose of assets in my estate on such terms as he considers expedient as though he were the absolute beneficial owner’.

Trevor was granted probate of the will on 20 November 2017. The estate was valued at approximately $511,000. The major assets were properties at Boyup Brook valued $130,000 and Kelmscott valued at $370,000.

When Angela died , her daughters Sarah and Laura were living in the Kelmscott property; Trevor asked them to leave but they refused. Following a threat of eviction in June 2020 they vacated the Kelmscott property in November 2020; they have now consented to its sale.

In Trevor Alan Thompson as executor of the estate of Angela Helen Thompson v Upton [2021] WASC 158 Trevor sought the court’s direction under s 45 of the Administration Act 1903 (WA).

Notwithstanding the objections of Sarah and Laura the Court held the will was unclear and as executor Trevor was acting appropriately in seeking directions and expressed

‘Yet again, this matter illustrates the folly of persons making homemade wills…It is invariably the case that money spent on having a will professionally drafted is a sound investment’

In construing the words of a Will, a court will not guess at the testator’s intentions or make a choice as to that intention simply because it considers it a better interpretation. The Court prefers a construction that preserves rather than destroys gifts under a will and has been expressed as being a presumption against intestacy.

Additionally, if every attempt has been made to render the whole Will effective if two parts of a will are mutually inconsistent there is a general rule that the latter clause prevails.

Trevor submitted that cl 3(b) of the will is void for uncertainty on the following grounds;

First, the clause requires a majority of three beneficiaries being in favour of a sale. If such majority did not eventuate, the gift to Trevor of a one-third interest as tenant in common is postponed indefinitely.

Second, the provision impermissibly delegates testamentary direction to the three beneficiaries.

Third, provision as to the deceased wishing her children to remain in occupation of the property ‘as long as it is deemed reasonable’ is so vague as to be void for uncertainty. It expresses no more than a wish on the deceased’s part.

As it is a clear provision of cl 4 of the will that the executor has the power to sell estate assets. As it is inconsistent with the limitations sought to be effected pursuant to cl 3(b) and a later provision, it should prevail.

The Court held that even allowing for the presumption against intestacy, there is no alternative but to conclude that cl 3(b) is void for uncertainty. When cl 4 is added in it is not possible to make sense of the construction of the Will. The consequence of which is that there is an intestacy with respect to the Kelmscott property

Co-Executor & Mesne Profits

Jocelyn Richardson died in April 2016 survived by her three sons, Mark, Gregory and Wayne. Under Jocelyn’s  Will dated 12 December 2011 the residue of her estate was left in equal shares to her three sons. The primary asset of the estate is the family home at  Epping valued at  $1.3 million. Wayne was living in the home and following Jocelyn’s death continued to do so without paying rent.

In May 2019, Gregory and Mark sought a Court order to remove Wayne as an executor and appoint an independent administrator who obtained a writ for possession; executed by the Sheriff in July 2020. Gregory and Mark sought to claim mesne profits and damages for Wayne’s occupation of the home from the deceased’s death in Richardson v Richardson [2021] NSWSC 353.

Mesne profit

Where a landlord has obtained an order from a court to evict a tenant the mesne profit represents the value the ejected tenant received from the property between the time the court ordered the eviction and the time when the tenant actually left the property.

The Court held that a claim for mesne profits is a particular form of the action for trespass based upon an injury to the plaintiff’s possession it cannot succeed unless a plaintiff proves that they entered into actual possession or occupation of the premises before bringing such a claim. Gregory and Mark brought the claim for possession and the claim for mesne profits in the same proceeding therefore as they did not enter into actual possession of the Epping Property their claim for mesne profits fails because they hadn’t obtained actual possession before bringing the claim based on trespass.

However the loss of rent for the Epping Property over the period from Jocelyn’s death to the date Wayne was removed as executor represents the loss sustained by the estate as a result of the breach by Wayne of his duties as an executor. Similarly Wayne is liable for water rates and electricity for the period from the date of the deceased’s death to the date of appointment of the administrator. The Court agreed that had it not been for Wayne’s breach of his duties as executor the estate wouldn’t have had to pay the Administrators costs ordering they be paid out of Wayne’s share of the estate.

The Court accepted that although Wayne was in a vulnerable economic position due to physical and mental ill-health, he had been repeatedly put on notice of his responsibilities as an executor; chose not to accept assistance or to co-operate in the orderly administration of the estate. Additionally, he was on notice of the claim for rent or an occupation fee if he remained in occupation of and did not comply with requests to vacate the Epping Property making it necessary for the estate to incur the costs of obtaining vacant possession. The Court held that Wayne’s wilful disregard of his obligations amounted to conduct that warranted an indemnity costs order.

Court of Appeal rejects dubious applicants estoppel claim

Jason Gill challenged the dismissal of his action seeking a declaration that the executors of the late William Garrett held certain property on trust for him, and in the alternative, sought family provision under s 59 of the Succession Act 2006 (NSW) out of the estate. He also challenged the primary judge’s findings in favour of the executors under a cross-claim filed against the appellant.

Jason and William had met in 1996 and commenced a friendship that developed into one of greater mutual dependence. William loaned money to Jason and covered other expenses. In late 2003, Jason moved into William’s home where he continued to reside until after he died in 2015. William paid for the storage of Jason’s property and continued to loan him money and provide other financial benefits.

Jason looked after William by driving him to appointments, cooking meals and undertaking other household tasks. Contributing to William’s increased medical care needs. Under the Will, Jason was to receive $200,000 less unpaid loans of  $98,000.

Jason claimed that, in 2009, William said he would give him the Paddington property in exchange for living with him as a companion and carer. On that basis, Jason claimed the executors were estopped from denying his claim to the home.

Although William left Jason a significant legacy in his will dated 20 June 2008 (the Will), the residue of his estate, including the Paddington Property, was left to his three children, who are the executors of the Will (the Executors).

The primary hearing

At first instance, the court found that as William lacked capacity by 2009 no such representation occurred; additionally rejecting the family provision claim on the basis that Jason had consciously misused Williams position of special disadvantage.

The executors made a cross-claim, seeking equitable compensation for Jason’s unconscionable conduct in respect of cash withdrawals retained by Jason for his personal use since November 2008 in breach of fiduciary obligations, and for the storage fees incurred by William from the same time.

The Appeal

The NSW Court of Appeal held that:

as there were no direct witnesses, Jason’s credibility was dubious and William had failed to raise the matter with his family and advisors – the primary judge was correct in finding that no representation was made to give rise to a proprietary estoppel.

the medical evidence, coupled with Williams dependence on Jason, supported the primary judge finding that William was in a position of special disadvantage concerning Jason.

Jason had received financial benefits from William, therefore the primary judge was correct in finding no factors warranting his family provision application.

Jason derived a benefit from William making payments for keeping his possessions in storage; refusing to remove his possessions when he had the opportunity after November 2008 was unconscionable. There was no error ordering equitable compensation for storage fees of $43,155.64.

Similarly, as Jason had a fiduciary relationship in respect of the access to Williams bank accounts and PINs, orders for equitable compensation in respect of the unauthorised cash withdrawals made by the primary judge were appropriate. The appeal was dismissed with costs.