JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATES OF HEARING:	5-7, 11-15, 18-19 February 2002
DATE OF JUDGMENT:	29 May 2002
CASE MAY BE CITED AS:	Skaftouros v Dimos
MEDIUM NEUTRAL CITATION:	[2002] VSC 198

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Administration and Probate – executors – application for removal of an executor pursuant to s. 34(1)(c) of the Administration and Probate Act 1958 – duties of an executor – whether executor was unfit to act.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Gunst QC with Mr M. Simon	Woodhams O’Keeffe
For the Defendant	Mr R. Berglund QC with Ms C. Sparke	Leo Dimos & Associates

HIS HONOUR:

This proceeding is brought by originating motion dated 7 May 2001 seeking removal of the defendant as executor of the estate of Demetrios Skaftouros (“the deceased”), who died on 24 October 1998 at the age of 76, leaving a will dated 7 April 1994. The plaintiffs and their relationships to the deceased are Lee and Paul Skaftouros (sons), Catherine Pearce (a daughter) and Panagiotis (Peter) Skaftouros (his brother). The wife of the deceased had predeceased him. The application is made pursuant to Section 34(1)(c) of the Administration and Probate Act 1958 (Vic) which, so far as relevant, provides that “(1) …where an executor… to whom probate… has been granted – (c) after such grant… is unfit to act in such office – the Court upon application… may order the discharge or removal of such an executor… and also if the Court thinks fit the appointment of some proper person or trustee company as administrator in place of the executor… so discharged or removed… upon such terms and conditions as the Court thinks fit; and may make all necessary orders for vesting the estate in the new adminstrator and as to accounts and such orders as to costs as the Court thinks fit”.

By his will (cl. 2) the deceased appointed the defendant “LEO DIMOS barrister and Solicitor of 226 Swanston Street, Melbourne” to be the executor of his will and trustee of his estate. By cl. 4 of the will the deceased gave:

(a)the former matrimonial home and residence at 5 Alden Court, Cheltenham (“Alden Court”) to Lee and Catherine (one-half each);
(b)a total of $40,000 to named grandchildren: to the daughters of Paul (Britt ($12,000) and Jasmine ($8,000)) and to the children of Lee (Michael ($10,000) and Josie ($10,000));
(c)the residential rental property (comprising eight flats) at 40 Whitby Street, West Brunswick (“Whitby St”) – one-quarter to Peter, one-half to Lee and one-quarter to Catherine;
(d)the residue of his estate, after payment of debts and expenses, to be divided equally between Paul, Lee and Catherine.
Another daughter, Anita, was not mentioned in…

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 Skaftouros v Dimos

Details

AGLC: Skaftouros v Dimos [2002] VSC 198
Case: [2002] VSC 198
Decision Date: 29 May 2002

CaseChat Overview and Summary

In the case of Skaftouros v Dimos, the applicant, a beneficiary of the estate of a deceased person, sought the removal of the executor, the respondent, pursuant to section 34(1)(c) of the Administration and Probate Act 1958. The applicant argued that the executor was unfit to act due to a failure to properly discharge his duties. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the executor had indeed failed to properly discharge his duties, and if so, whether this constituted a sufficient ground for his removal under the relevant legislation. The court had to consider the standard of care and diligence expected of an executor and whether the respondent's conduct fell short of this standard.

The court found that the executor had not discharged his duties with the required level of care and diligence, particularly in relation to the management of the estate's assets. The respondent's actions, or lack thereof, had caused distress to the other beneficiaries and had led to a breakdown in the administration of the estate. Consequently, the court concluded that the executor was unfit to continue in his role. The judge ordered the removal of the executor and appointed a replacement to ensure the proper administration of the estate.

The final orders of the court included the removal of the respondent as executor and the appointment of an alternative executor to manage the estate. The court also directed the new executor to take steps to resolve any outstanding issues that had arisen due to the previous executor's conduct.

Orders