Neylon v Iacovino - [2025] VSC 511

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2025 03454

IN THE MATTER of the Will and Estate of Francesco Visione

-and-

IN THE MATTER of the Will and Estate of Rosa Visione

-and-

IN THE MATTER of an application pursuant to section 34 of the Administration and Probate Act 1958 (Vic)

-and-

IN THE MATTER of an application pursuant to section 48 of the Trustee Act 1958 (Vic)

BETWEEN:

DAMIAN THOMAS NEYLON (in his capacity as the Manager of Comito Iacovino & Co Pty Ltd (ACN 120 500 218) (in liquidation) (Manager appointed)	Plaintiff
v
ANTHONY JOHN IACOVINO	Defendant

---

JUDGE:	GRAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2025
DATE OF RULING:	22 August 2025
CASE MAY BE CITED AS:	Neylon v Iacovino
MEDIUM NEUTRAL CITATION:	[2025] VSC 511

---

ADMINISTRATION AND PROBATE — Removal of executor and trustee — Unanswered evidence of dishonesty by solicitor appointed as executor of estates of clients — Named beneficiaries were relatives residing overseas — Administration and Probate Act 1958 s 34 — Trustee Act 1958 s 48.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms D Foy	Neylon Legal
For the Defendant	In person	N/A

HIS HONOUR:

In this proceeding, the plaintiff seeks orders pursuant to s 34 of the Administration and Probate Act 1958 (Administration & Probate Act) and s 48 of the Trustee Act 1958 (Trustee Act) removing the defendant, Anthony Iacovino, as the executor and trustee of the wills and estates of Francesco Visione (Francesco) and Rosa Visione (Rosa), and for the appointment of an independent administrator.

Mr Iacovino consents to being removed.

I will make the orders removing him. It is necessary to publish written reasons recording the circumstances in which Mr Iacovino is being removed.

Background
The estates

Francesco and Rosa had no children. They were owners as tenants in common in equal shares of a real property at 34 Emmaline Street, Northcote (Northcote Property).

Francesco died on 10 September 2009, leaving a will dated 22 December 2006 (Francesco’s will). Francesco’s will appointed Rosa and Mr Iacovino as co-executors and co-trustees. Probate of Francesco’s will was obtained by Mr Iacovino on 27 April 2010, and he became the sole executor and trustee of Francesco’s estate as Rosa was unable to act.

By Francesco’s will, he gave Rosa a right to use and occupy his interest in the Northcote Property, with it to be sold when she no longer required it, and gave the remainder to his siblings Vittorio Visione (Vittorio) and Michelina Visione (Michelina).

The Northcote Property was sold on 14 November 2009, with settlement of the sale occurring on 13 May 2010. At the time of the sale, Rosa was in residential aged care.

Rosa died on 6 March 2013 leaving a will dated 22 December 2006 (Rosa’s will). Rosa’s will appointed Francesco…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Neylon v Iacovino

Details

AGLC: Neylon v Iacovino [2025] VSC 511
Case: [2025] VSC 511
Decision Date: 22 August 2025

CaseChat Overview and Summary

The case of Neylon v Iacovino was brought before the court to address the removal of an executor and trustee, Iacovino, who was also a solicitor. The dispute arose as the court was presented with unanswered evidence of Iacovino's dishonesty in his role as executor of the estates of his clients. The named beneficiaries in this case were relatives residing overseas. The court had to consider provisions from the Administration and Probate Act 1958 and the Trustee Act 1958 to determine the appropriate course of action.

The primary legal issue before the court was whether there was sufficient evidence to justify the removal of Iacovino as executor and trustee due to his alleged dishonesty. The court was required to balance the interests of the beneficiaries, who were residing overseas, against the potential impact of removing a fiduciary from their positions. The court had to consider the relevant statutory provisions, including section 34 of the Administration and Probate Act 1958 and section 48 of the Trustee Act 1958, in the context of the evidence presented.

In delivering the judgment, the court found that the evidence of Iacovino's dishonesty was compelling and unanswered. The court noted that the Administration and Probate Act 1958 and the Trustee Act 1958 both provide for the removal of executors and trustees where there is a justifiable cause, such as dishonesty. The court concluded that the best interests of the beneficiaries, who were residing overseas, would be served by removing Iacovino from his positions. The court determined that it was appropriate to exercise its powers under the relevant statutes to remove Iacovino as executor and trustee.

The court's final orders were to remove Iacovino from his positions as executor and trustee of the estates in question. The court appointed alternative executors and trustees to manage the estates and protect the interests of the beneficiaries. The court emphasised the importance of maintaining the integrity of the administration of estates and the need to protect beneficiaries, particularly those residing overseas, from potential misconduct by fiduciaries.

Orders