Mirisklavos v Mouchtouris
[2004] VSC 178
•10 May 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 4888 of 2004
| MIRISKLAVOS | Plaintiff |
| v | |
| MOUCHTOURIS | Defendant |
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JUDGE: | CHIEF JUSTICE WARREN | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 April 2004 | |
DATE OF JUDGMENT: | 10 May 2004 | |
CASE MAY BE CITED AS: | Mirisklavos v Mouchtouris | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 178 | |
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PROBATE – Removal of administratrix – Section 34 Administration and Probate Act 1958 – Unfitness – Injunction – Preparedness to submit.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Newton | Holme Wilkinson Lowry |
| For the Defendant | Mr P. Bingham | Vivien Mavropoulis & Associates |
HER HONOUR:
The plaintiff, Maria Mirisklavos has instituted the proceeding in her capacity as administratrix of the estate of George Mouchtouris also known as George Mouktouris (“the deceased”). The defendant in the proceeding is John Mouchtouris.
The deceased died on 10 July 2003 intestate. On 8 December 2003 letters of administration of the estate of the deceased were granted to the plaintiff. The plaintiff and the defendant are the brother and sister of the deceased. For probate purposes, the value of real estate of the deceased in Victoria was approximately $1,092,500 and personal estate to the approximate value of $334,000.
Apparently during his lifetime the deceased suffered from schizophrenia. He never married and had no children. His next of kin are the plaintiff, his sister, the defendant, his brother and the children of Peter Morris, a brother of the deceased who pre-deceased him, those children being Mary Chryssavgis, Dimitrios Morris and George Morris. During his lifetime the defendant was the principal carer of the deceased. Both the defendant and the deceased were involved in partnership in several small business ventures mostly concerned with takeaway food businesses. The defendant held an enduring power of attorney for the deceased.
After the death of the deceased the plaintiff applied for, and obtained, letters of administration of the estate of the deceased.
The plaintiff brings the primary proceeding by way of originating motion seeking orders that the defendant deliver to the plaintiff such property of the deceased within his possession, power or control, provide an account of all property of the deceased in his possession, power or control and, also, an injunction, both interlocutory and permanent, restraining the defendant from selling, transferring or otherwise dealing with or disposing of any property of the deceased.
The plaintiff deposed in an affidavit in support of the originating motion and relevant summons that after the death of the deceased discussions occurred between she and the defendant in which the defendant expressed an intention to administer the estate in his own way. The plaintiff deposed that a conference was convened at a firm of solicitors engaged on her behalf and at that meeting a request was made that the defendant provide particulars of assets and liabilities of the estate within seven days so that the plaintiff could apply for letters of administration. The plaintiff alleged that the defendant agreed to comply with the request but subsequently failed to do so. On 15 January 2004 the plaintiff served a notice of compliance on the defendant through her solicitors directing and requesting the defendant to deliver to the plaintiff, by then the administrator of the estate of the deceased, any information, papers, deeds and documents, bank records, bank savings, account books, bank investment account books and bank cheque books relating to all assets both real and personal of the deceased including information relating to leases and tenancy agreements of properties of the deceased including a taxi licence and other documents. The plaintiff deposed that the notice had not been complied with.
Following searches by the plaintiff’s solicitors she ascertained that the deceased owned two properties at Hampton and Bentleigh East together with a half share in another property at Hampton. It was also ascertained that the deceased was the owner of a taxi licence.
By way of answer, the defendant deposed on affidavit that he and the deceased were very close and went into business together from about 1959 and worked together thereafter. He alleged that he and the deceased jointly owned three properties. The defendant described that the deceased suffered mental illness for 12 years, from about 1991, and that the defendant was his only carer. He attended to personal duties and looked after the deceased on a daily basis. When the deceased was hospitalised the defendant visited him regularly. The defendant also alleged that he lent the deceased money and supported him financially on a regular basis. He deposed that he looked after the financial affairs of the deceased including his rental properties, collected debts, paid liabilities, paid mortgage payments and taxes.
The defendant described his attachment to his late brother as one of being deeply emotional, the defendant and the deceased were twin brothers. The defendant deposed, also, the custom of the Greek Orthodox religion of which the family were members. He deposed that as part of the grieving process he did not take any steps in relation to the estate of the deceased. He disputed that there were any discussions as alleged by the plaintiff.
The defendant alleged that he intended to apply for letters of administration in the estate of the deceased after the completion of a six month grieving period in accordance with the Greek Orthodox religion, ending about early January 2004. Apparently, at a memorial service organised by the family the defendant alleged that the plaintiff made no mention of the fact that she had obtained letters of administration in the estate of the deceased herself a little over a month or so earlier. Eventually when the defendant learned of these matters he deposed that he was very upset and concerned because the plaintiff had no knowledge of the affairs of the deceased whereas he, the defendant, did. He complained in an affidavit that the plaintiff has limited ability to read and write English and has little knowledge of accounting and property matters whereas he has.
Furthermore, the defendant complained that in reality he, rather than the plaintiff as the administratrix, had been administering the estate of the deceased by way of collecting rents, paying expenses including mortgage payments and other bills. He alleged that the plaintiff had taken no steps to collect rents, pay bills, maintain properties or pay mortgage instalments. He alleged that the plaintiff had neglected the estate.
The plaintiff has denied the allegations made against her by the defendant in her capacity as administratrix.
Curiously and in circumstances that were not fully explained, the defendant issued an originating motion within the substancial proceeding seeking orders that the plaintiff be removed as administratrix of the estate of the deceased and that he, the defendant, be appointed instead of the plaintiff.
Both matters came before me sitting in the Practice Court.
It was acknowledged during argument that if I was satisfied that the plaintiff should remain as administratrix of the estate then the defendant would not oppose orders against him for the production of documents and the like as sought in the originating motion and summons by the plaintiff. There was dispute as to whether it was necessary for the court to order an injunction against the defendant.
The application by the defendant for the removal of the plaintiff as administratrix is made under s.34 of the Administration and Probate Act 1958. No proper challenge was made to the proceeding being instituted “within the proceeding” as it were by the defendant. On one view, strictly speaking under the rules, the originating motion and summons in support should be dismissed. However, as the point in this case is a short one I am prepared to consider the matter.
The principles to be applied for the removal of an administratrix are well established. It is a power used sparingly, if not rarely, by the court. Conveniently, the essential principle was stated by Jenkinson J in Hoxha v Hoxha[1] where the learned judge found that the proven and unexplained delay in the administration of the estate raised a strong inference of unfitness to act in the office of executor. His Honour said:
[1]Unreported judgment of Jenkinson J, Supreme Court of Victoria, delivered 22 May 1975.
“The word ‘unfit’ … may be satisfied or demonstrated in capacity to perform the duties of the executorial office within a reasonable time … [or] by demonstrated unwillingness to perform those duties within a reasonable time”.
The principle has been applied consistently[2]. The burden that lies with the defendant is an onerous one. In the cases where an executor has been removed the conduct against the executor has been serious, ongoing and involved extensive delays and actual or potential loss to the estate. There have been delays in critical acts by the actual or potential executor (e.g. in applying for a grant of probate in the estate) and misconduct or failure to act in relation to legal proceedings. Such circumstances arose in Skaftouros and others v Dimos[3]. In that judgment, Mandie, J. was satisfied that the defendant was unfit to act in the office of executor of the subject estate. His Honour observed:
“I reach that conclusion upon a consideration of the whole of the defendant’s above mentioned conduct, by both act and omission. That conduct may be broadly characterised as serious neglect and laxity in the proper performance of his duties, a gross failure to respond to communications or to provide information, and a tendency to prefer his own interests over his duty to beneficiaries. The court is entitled, in considering the question of unfitness, to examine the executor’s continuing conduct up to trial … In a given case, an executor might conceivably redeem his position before trial. However, in this case, the conduct of the defendant since the institution of this application for his removal has in my view exacerbated the situation and further demonstrated his unfitness to act as executor of the estate[4].”
[2]See, for example, Skaftouros and others v Dimos [2002] VSC 198; Monty Financial Services Limited and anor v Delmo (1996) VR 65.
[3]Ibid.
[4]At para [200].
Mandie, J. in Skaftouros then proceeded to set out in some detail the conduct of the defendant over a period of time and the use of the funds of the estate for legal costs culminating in the conclusion, already referred to, that the defendant was unfit to act in the office of executor of the subject estate.
In the present case it seems there may well be some animosity between the plaintiff and the defendant in relation to which of them should be the administrator of the estate. It is apparent that there is irritation on the part of the defendant that the plaintiff applied before him and therefore became administrator. That may well be. However, under the provisions of the Administration and Probate Act[5] the administrator of an estate once appointed is not removed save where unfitness is made out. In my view that burden has not been satisfied in the present case. I am satisfied that insofar as there has been any delay on the part of the plaintiff, and on proper analysis I have concluded there has been none, the fault lies wholly at the door of the defendant who has continued to act with respect to the assets and liabilities of the deceased, in effect, as if the deceased was still alive and he, the defendant, was the primary carer and the person with the responsibility. It is not his place or position any longer to do that, rather, the legal obligation lies now with the plaintiff. Nothing has been put before me to demonstrate unfitness on the part of the plaintiff as required in accordance with the authorities.
[5]Section 34.
It follows from these reasons that, insofar as the defendant seeks the removal of the plaintiff as administratrix, and the substitution of himself as administrator, he has failed.
I turn then to the original or primary application in the proceeding, namely, the orders for the production of the assets and the like as sought by the plaintiff against the defendant. As indicated already, such orders are not resisted by the defendant. I will make orders accordingly.
There is the remaining matter, that of whether an injunction should be ordered against the defendant restraining him from selling, transferring or otherwise dealing with or disposing of any property of the deceased. In my view it is inappropriate to grant such an order at this time. The defendant has indicated a preparedness to submit to the orders as outlined. There is a presumption, therefore, of compliance. Notwithstanding the conduct of the defendant to date I do not consider it is one that justifies the exercise of the discretion as sought by the plaintiff. The presumption of compliance by the defendant weighs the balance of convenience in his favour. However, if it transpired that the defendant did not act appropriately then it would be open to the plaintiff to make an appropriate application to the court.
It follows that the defendant has failed and that orders will be made accordingly.
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