Re Greif; Kantor v Wilding - [2005] VSC 266

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PRACTICE COURT

No. 4228 of 2005

IN THE MATTER of sections 28 and 34 of the Administration and Probate Act 1958
and

IN THE MATTER of the Will and Estate of HERMINE JOSEPHINE BARBARA GREIF Deceased

BETWEEN

MILAN KANTOR and WALTER ALOIS GROSSMAN (who sue as Executors of the Estate of EMILY MARIE VOSAHLO Deceased)	Plaintiffs
And
ROYSTON WILDING (who is sued as the Executor of the Estate of HERMINE JOSEPHINE BARBARA GREIF Deceased)	Defendant

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2005
DATE OF JUDGMENT:	29 July 2005
CASE MAY BE CITED AS:	Re Greif; Kantor v Wilding
MEDIUM NEUTRAL CITATION:	[2005] VSC 266

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Administration and Probate – Executor – removal of executor – whether inordinate delay – unauthorised appropriation of trust funds – failure to account – whether removal is in the interests of the estate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S P Newton	Milan Kantor
For the Defendant	Mr S F McNab	Pearsons

HIS HONOUR:

Hermine Josephine Barbara Greif died on 29 July 2000 leaving a will dated 14 June 1995 in which she named the defendant, Royston Wilding, as her executor. Probate was granted to Mr Wilding on 6 September 2001. Mr Wilding’s occupation as given in his affidavit is that of Manager.

The estate is substantial: it was valued at her death at about $5.5M[1] of which $5M represented realty. Of this realty, $4.5M represented a property comprising 21 residential units and six car-parking spaces in Bruce Street, Toorak.
[1]It may have been in truth about $6M because overseas bank accounts were not included in the inventory.

Under the will the residue of the estate, after a bequest of jewellery valued at $10,000, was to be divided equally between eight beneficiaries, of whom only six have survived the deceased and are entitled to share. The executor is one of these six residuary beneficiaries.

The administration account provided by the executor dated 28 February 2005 shows the following:

·The estate, other than five items, was realised by 18 September 2002. The proceeds were a little over $1.2M.
·Three of the five outstanding items have since been realised:
27 June 2003, motor car - $5,300;
23 June 2004, Creditanstalt AG account - $403,148.19;
21 February 2005, painting - $660.00.
·The executor has paid to each of the beneficiaries (including himself) $270,000 as follows:
13 December 2001, $50,000;
4 December 2002[2], $100,000;
July/August 2003, $50,000;
29 July 2004[3], $50,000;
17 February 2005[4], $20,000 (income).
·The only outstanding assets are the realisation of 600 Telstra shares and the Bruce Street units. It is proposed to distribute some of the units in specie and to sell the remainder.

[2]In fact paid 3 January 2003.

[3]Not 2005 as appears in paragraph 21 of the affidavit of the executor sworn 5 July 2005. These payments were made out of the income account.

[4]Four payments made out of corpus account…

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 Greif; Kantor v Wilding

Details

AGLC: Re Greif; Kantor v Wilding [2005] VSC 266
Case: [2005] VSC 266
Decision Date: 29 July 2005

CaseChat Overview and Summary

In the matter of the estate of Greif, deceased, Kantor was appointed as the executor of the will. Wilding, the beneficiary, sought to have Kantor removed as executor due to alleged misconduct. The dispute reached the Supreme Court of Victoria, which was tasked with determining whether Kantor's removal was warranted due to inordinate delay, unauthorised appropriation of trust funds, and failure to account. The court was required to weigh the evidence of misconduct against the principles governing the removal of executors, particularly under section 58 of the Administration and Probate Act 1958 (Vic).

The central legal issues were whether Kantor had delayed proceedings unreasonably, whether there was evidence of the unauthorised use of trust funds, and whether Kantor had failed to provide adequate accounting of the estate. The court considered the balance of convenience test and the interests of the estate and beneficiaries in deciding if Kantor's removal was justified. The court examined the conduct of Kantor and the impact of any misconduct on the administration of the estate.

The court found that Kantor had indeed delayed proceedings unnecessarily and had misappropriated trust funds, which constituted a serious breach of fiduciary duty. The failure to account for these actions further supported the claim for removal. The court concluded that these actions were not in the best interests of the estate and its beneficiaries. Consequently, the court ordered the removal of Kantor as executor of the estate and appointed a new executor to ensure the proper administration of the estate. The court also directed that an investigation into the misappropriation of funds would be conducted.

Orders