DIMOS v SKAFTOUROS and Others

9 VR 584·Winneke P, Batt JA and Dodds-Streeton AJA
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9 VR 584
9 VR 584
DIMOS v SKAFTOUROS and Others Court of Appeal Winneke P, Batt JA and Dodds-Streeton AJA 19, 20 May, 20 August 2004 [2004] VSCA 141 Administration and probate — Executor — Fitness — Removal — Nature and scope of discretion to remove — Legislative purpose — Welfare of beneficiaries — Protection of interests in estate — Jurisdiction not limited to disqualification arising by reason of some legal status — Neglect and breach of duty — Conflict of interest and duty — Antagonism displayed to beneficiaries — Delays in administration of estate — Failure to provide accounts and information — Failure to pay creditors — Exaggerated or unjustified demands for commission and legal costs — “Unfit to act” — Administration and Probate Act 1958 (No 6191) s 34(1)(c).. Section 34(1) of the Administration and Probate Act 1958, which was enacted in 1907 and re-enacted in substantially the same form in the 1915, 1928 and 1958 consolidations of Victorian statutes, relevantly provided as follows:

“Notwithstanding anything contained in any Act where an executor or administrator to whom probate has been granted whether before or after the commencement of this Act or where an administrator has been appointed under this section or any corresponding previous enactment —

  • •remains out of Victoria for more than two years;
  • •desires to be discharged from his office of executor or administrator; or
  • •after such grant or appointment, refuses or is unfit to act in such office or is incapable of acting therein —
the Court upon application in accordance with the rules of court may order the discharge or removal of such executor or administrator …”

 D, a solicitor, was executor of the will of S. The principal beneficiaries under the will were four of S’s children. Those beneficiaries applied under s 34(1)(c) of the Act for D’s removal alleging that he had been responsible for serious and inexcusable delays in obtaining probate and in the administration of the estate, failing to manage the estate properly, failing to provide accounts and information to the beneficiaries when requested and generally failing to communicate with the beneficiaries, failing to pay creditors of the estate, making exaggerated or unlawful demands for commission and costs for himself, and exhibiting an offensive and adversarial attitude towards beneficiaries. With the concurrence of all counsel, the trial judge proceeded on the basis that the words “unfit to act” in s 34(1)(c) comprehended cases of conflict and breach or neglect of duty. The trial judge made detailed findings which, in substance, upheld the beneficiaries’ complaints concerning D’s conduct as executor. One of the findings was that in attempting to sell one item of real estate (“the Mena Avenue property”), D had acted in bad faith and

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