Re Vasiliades; Pappas v Vasiliades - [2021] VSC 720

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S ECI 2020 00422

IN THE MATTER of the will and estate of AVGI DEMETRIOS VASILIADES, deceased

-and-

IN THE MATTER of s 34 of the Administration and Probate Act 1958 (Vic) and ss 48 and 51 of the Trustee Act 1958 (Vic)

XENIA PAPPAS	Plaintiff
v
SOCRATES VASILIADES	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	5 November 2021
CASE MAY BE CITED AS:	Re Vasiliades; Pappas v Vasiliades
MEDIUM NEUTRAL CITATION:	[2021] VSC 720

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WILLS AND ESTATES — Removal of executor — Multiple grounds alleged for removal — Application dismissed — Administration and Probate Act 1958 (Vic) s 34(1)(a), (c); Trustee Act 1958 (Vic) s 48(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Biviano	Costanzo Lawyers Pty Ltd
For the Defendant	Ms A Kinda	SGM Legal

HER HONOUR:

Introduction

Avgi Demetrios Vasiliades (‘the deceased’) died on 14 September 2019 leaving a will dated 27 November 2016 (‘the will’).

The deceased was survived by her four children: Xenia Pappas (‘the plaintiff’), Socrates Vasiliades (‘the defendant’), Maria Porter (‘Maria’) and Vasil Vasiliades (‘Vasil’). Both the defendant and Maria reside outside of Australia.

The will appoints the defendant as executor, with Maria appointed as the substitute executor. The residue of the estate is bequeathed to the deceased’s four children in equal shares absolutely. According to the inventory, the assets of the estate amount to approximately $690,000 comprising funds in a number of bank accounts and a nursing home accommodation bond.

On 29 June 2020 probate of the will was granted to the defendant.

Plaintiff’s application

The plaintiff seeks the removal of the defendant as executor and trustee of the estate of the deceased and the appointment of State Trustees Limited as administrator with the will annexed.

Maria supports the plaintiff’s application. If the application is successful, Maria does not wish to take out a grant as the substitute executor as she lives in the United Kingdom. As the plaintiff and defendant have many disputes, she considers that an independent administrator will avoid dissipation of the assets of the estate.

The defendant opposes the application. Vasil supports the defendant.

Background

Before the death of the deceased, both the plaintiff and the defendant assisted the deceased with her affairs pursuant to a joint financial and medical power of attorney dated 1 July 2012. The plaintiff deposes that notwithstanding the power of attorney, the deceased made her own decisions about the payment of expenses and her financial matters.

The plaintiff deposes that during the deceased’s lifetime, the plaintiff and the defendant had a number of disputes over the management of the deceased’s affairs, including a disagreement concerning a family property held by the plaintiff, Maria and Falconbridge Pty Ltd, a company in which the defendant and Vasil hold indirect interests. This dispute is now the subject of a proceeding in the Victorian Civil and…

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.

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Details

Case: [2021] VSC 720
Decision Date: 5 November 2021

CaseChat Overview and Summary

The case of Re Vasiliades; Pappas v Vasiliades involved a dispute concerning the removal of an executor from a will. The applicant, Pappas, sought the removal of the respondent, Vasiliades, who was the executor of a deceased estate. The dispute arose under the Administration and Probate Act 1958 (Vic) and the Trustee Act 1958 (Vic). The applicant alleged multiple grounds for removal, including mismanagement of the estate and conflict of interest. The case was heard and determined by the Supreme Court of Victoria.

The primary legal issues for the court to decide were whether the applicant had demonstrated sufficient grounds for the removal of the respondent as executor. The applicant needed to establish that the respondent's conduct warranted removal under the applicable provisions of the Administration and Probate Act 1958 (Vic) and the Trustee Act 1958 (Vic). Specifically, the court needed to assess if the respondent's actions constituted mismanagement or conflict of interest as per s 34(1)(a) and (c) of the Act, and if the applicant had standing to bring the application under s 48(1) of the Trustee Act.

In delivering the judgment, the court carefully considered the evidence presented by both parties. The court found that the applicant had not provided sufficient evidence to support the allegations of mismanagement or conflict of interest. The court concluded that the applicant had not met the threshold required to justify the removal of the respondent as executor. Consequently, the application for removal was dismissed.

The court's final orders were that the application by Pappas to remove Vasiliades as executor of the estate be dismissed. The court also noted that costs of the proceedings were to be borne by the applicant, Pappas. This decision underscores the high standard of proof required for the removal of an executor and the importance of clear and compelling evidence to support such applications.

Orders