Legal Research
Cases
Profilio v Profilio

Profilio v Profilio

Case [1999] NSWSC 657 28 June 1999

No judgment structure available for this case.

Type to search within this case.

CITATION: Profilio v Profilio [1999] NSWSC 657

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 4902/98

HEARING DATE(S): 28/06/99

JUDGMENT DATE:
28 June 1999

PARTIES :

Lorraine Profilio & 2 Ors (Plaintiffs)
Antonio Profilio (Defendant)

JUDGMENT OF: Bryson J at 1

COUNSEL : M. Willmott for Plaintiffs
R. Darke for Defendant

SOLICITORS: Messrs Eric Butler for Plaintiffs
Messrs John R. De Mattia & Co. for Defendant

CATCHWORDS: Probate - revocation of grant - where there was conflict between two executors and the defendant did not wish to contend with the claim for his removal, the Order removed him from office as executor without prejudice to the continuing executorship of the other: the existing grant was not revoked. Consideration of the inherent power to remove an executor.

CASES CITED: Letterstedt v Broers (1884) 9 App Cas 371
Bates v Messner (1967) 67 SR(NSW) 187
Mavrideros v Mack (1998) 45 NSWLR 18
In the Goods of Loveday [1900] P 154 at 156

DECISION: See para 38

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

MONDAY 28 JUNE 1999
4902/98 LORRAINE PROFILIO & 2 ORS v

ANTONIO PROFILIO

JUDGMENT

1 HIS HONOUR: These proceedings relate to the estate of the late Christopher Profilio who died on 26 March 1997. His last Will dated 9 May 1968 appointed as executors his wife Mrs Lorraine Profilio, who is the first plaintiff, and his brother Mr Antonio Profilio, who is the defendant. They obtained probate of the Will from this Court on 9 March 1998. 2 The Will left the property of the testator on trust for payment of duties and debts, and the balance of the estate on trust to pay the net income to Mrs Profilio during her lifetime, or until she should remarry (and that has not happened), and after her death or remarriage for the testator's children in equal shares. 3 There was an alternative provision which was to operate in favour of the children if Mrs Profilio predeceased the testator, but that did not happen. 4 The Will also conferred powers on the trustees. 5 In their probate application the executors filed an inventory of property, the total value of which they gave at $1,956,174.50. The principal assets owned by the testator were commercial buildings in High Street, Penrith, in which he owned a half share as tenant in common, and Mr Antonio Profilio owned the other half share. He owned several other investment properties also as tenant in common in equal shares with Mr Antonio Profilio, and he owned a house in Stafford Street Penrith outright. 6 The testator had a number of other assets, including undivided half shares in the estates of three deceased relatives whose assets were situated at Lipari in Italy, and he owned a quarter share in the estate of another relative which was situated in Australia; the estate owns a house in Coles Street, Concord. He had several bank accounts, one in his own name, and two which he conducted jointly with Mr Antonio…

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 Profilio v Profilio

Details

AGLC: Profilio v Profilio [1999] NSWSC 657
Case: [1999] NSWSC 657
Decision Date: 28 June 1999

CaseChat Overview and Summary

The case of Profilio v Profilio involved a dispute over the administration of a deceased estate. The matter was before the Supreme Court of Victoria, where the court was asked to consider the revocation of a grant of probate. The deceased had appointed two executors in their will, however, a conflict arose between the executors. One of the executors did not wish to contest the other's claim for their removal from office, leading to the application for an order to remove the defendant from their position as an executor. The court was required to decide whether the existing grant of probate should be revoked and whether the inherent power of the court could be exercised to remove the defendant from their position.

The court considered the inherent jurisdiction to remove an executor from their office. It was established that the court has the power to remove an executor where there is a conflict or other issue that impedes the administration of the estate. The court also considered whether the removal of the executor would result in the revocation of the grant of probate. The court held that the existing grant of probate could remain in place, and the defendant could be removed from office without prejudice to the continuing executorship of the other executor. The court found that the defendant's removal would not result in the revocation of the grant of probate, and the other executor could continue with the administration of the estate.

The court's reasoning was that the removal of the defendant from their position as an executor was necessary to ensure the effective administration of the estate. The court held that the inherent jurisdiction to remove an executor could be exercised in appropriate circumstances, and the defendant's removal did not result in the revocation of the grant of probate. The court further held that the other executor could continue with the administration of the estate, and the grant of probate remained in place. The court's decision provided a practical solution to the conflict between the executors and ensured the timely and efficient administration of the deceased estate.

The final orders of the court were that the defendant be removed from their position as an executor of the estate without prejudice to the continuing executorship of the other executor. The court held that the grant of probate remained in place and could be administered by the other executor. The court's decision provided clarity and certainty for the parties involved and ensured the timely and efficient administration of the deceased estate.

Orders