Re Graham - [2025] VSC 393

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2024 04740

IN THE MATTER of the estate of RODGER DONALD FRANCIS GRAHAM, deceased

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IN THE MATTER of section 34 of the Administration and Probate Act 1958 (Vic)

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IN THE MATTER of section 48 of the Trustee Act 1958 (Vic)

BETWEEN:

KRISTY LEE GRAHAM	Plaintiff
v
ANDREW ALISTER GRAHAM and JENNIFER ANNE TRENORDEN (who are sued as Executors of the Estate of RODGER DONALD FRANCIS GRAHAM, deceased)	Defendants

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2025
DATE OF JUDGMENT:	2 July 2025
CASE MAY BE CITED AS:	Re Graham
MEDIUM NEUTRAL CITATION:	[2025] VSC 393

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WILLS AND ESTATES — Section 34 of the Administration and Probate Act 1958 (Vic) and s 48 of the Trustee Act 1958 (Vic) — Removal of executors and trustees of the estate on the basis that they are unfit to remain — Significant lapse of time since probate granted — Multiple firms of solicitors retained over time with consequent cost to the estate — Delay in administration of estate due to executors refusal to comply with terms of settlement deed — One executor no longer wishes to remain executor and trustee — Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton of counsel	Maurice Blackburn Pty Ltd
For the Defendants	Mr G McCormick of counsel	Goldsmith Lawyers

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Background facts........................................................................................................................... 1
The related proceedings............................................................................................................... 3
The estate’s engagement of solicitors and the legal fees incurred......................................... 5
AndrewGraham’s evidence...................................................................................................... 10
JenniferTrenorden’s evidence.................................................................................................. 12
Relevant legislation and principles.......................................................................................... 13
Plaintiff’s submissions................................................................................................................ 14
Defendants’ submissions........................................................................................................... 16
Consideration.............................................................................................................................. 19
Conclusion.................................................................................................................................... 21

HIS HONOUR:

Introduction

Kristy Lee Graham has applied under s 34 of the Administration and Probate Act 1958 (Vic) (APA) and s 48 of the Trustee Act 1958 (Vic), to remove Andrew Alister Graham and Jennifer Anne Trenorden as the executors and trustees of the estate of Rodger Donald Francis Graham (the deceased).[1] The deceased is Kristy’s late father. Kristy’s removal application was made on the basis that Andrew and Jennifer are unfit to remain as the executors of the estate, given their failure to ensure the efficient and timely administration of the estate.
[1]Given the familial relationship between the parties and the common family name of the plaintiff and the first defendant, to avoid any confusion I have used the parties first names in this judgment. No disrespect is intended.

Andrew and Jennifer are the deceased’s brother and sister. Both opposed Kristy’s application. At the hearing, however, Jennifer informed the Court that she no longer wished to be an executor and that the best course would be for the Court to appoint an independent executor to finalise the estate.

For the reasons given below I have decided that Andrew and Jennifer should be removed and that an independent executor should be appointed.

Background facts

Rodger…

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 Re Graham

Details

AGLC: Re Graham [2025] VSC 393
Case: [2025] VSC 393
Decision Date: 2 July 2025

CaseChat Overview and Summary

The matter of Re Graham involved an application to remove executors and trustees of the estate of the deceased, Mr. Graham, on the basis that they were unfit to remain in their positions. The application was heard by the Supreme Court of Victoria. The primary concern was the significant lapse of time since probate was granted, which had resulted in multiple firms of solicitors being retained over the years, thereby incurring considerable costs to the estate. Additionally, there was a delay in the administration of the estate due to the executors' refusal to comply with the terms of the settlement deed. One of the executors had also expressed a desire to no longer serve in that capacity.

The court was tasked with determining whether the executors and trustees were indeed unfit to remain in their roles, given the circumstances. The primary legal issues centred on the interpretation and application of Section 34 of the Administration and Probate Act 1958 (Vic) and Section 48 of the Trustee Act 1958 (Vic). The court had to consider the implications of the significant delays in estate administration, the costs incurred due to multiple changes in legal representation, and the refusal to comply with the terms of the settlement deed. Furthermore, the court needed to assess the fitness of the executors and trustees to continue in their roles.

In reaching its decision, the court examined the extensive delays in the administration of the estate and the consequential costs, which were deemed unreasonable and detrimental to the estate. The refusal of the executors to adhere to the terms of the settlement deed was also noted as a significant factor. The court concluded that the executors and trustees were unfit to continue in their positions due to their failure to effectively manage the estate and the resultant costs and delays. Consequently, the application to remove the executors and trustees was granted. The court's decision provided relief to the estate by enabling new executors and trustees to be appointed, who could hopefully expedite the administration process and better manage the estate.

Orders