An executor’s role is to get in the assets of the deceased, to pay the estate debts, the legacies given by the will, and distribute the estate assets. It is common for a will-maker to appoint the same person as executor and trustee. Once they have completed the executorial duties, they hold the property as trustee.
If the trustee has to deal with later discovered estate assets, they take them as executor. Therefore the same person may be both executor and trustee of different assets at the same time.
Where the executor who has been granted probate remains out of Victoria for more than two years or is unfit to act or incapable of acting, the Victorian Supreme Court can remove an executor under s 34 of the Administration and Probate Act 1958 (Vic). Additionally, the court may appoint a trustee under s48 of the Trustee Act 1958 (Vic).
The decision to remove an executor or trustee is at the courts discretion. It depends on the facts of each case and what is best for the welfare of the trust or estate as a whole after considering;
- the interests of the beneficiaries,
- the security of estate property, and
- the efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers held by an executor or trustee.
Avgi Demetrios Vasiliades died on 14 September 2019 leaving a will dated 27 November 2016 (the will). Avgi was survived by her four children: Xenia, the plaintiff, Socrates, the defendant, Maria and Vasil. Socrates and Maria live outside of Australia.
The will appointed Socrates as executor, with Maria appointed as the substitute executor. The residue of the estate is bequeathed to the four children in equal shares.
Xenia and Vasil were appointed by Avgi as her financial and medical attorneys prior to her death. There were a number of disputes between Xenia and Vasil as to the management of Avgi’s affairs one of which was the subject of a VCAT proceeding.
Xenia believed that Socrates should renounce probate; he refused. Xenia lodged a probate caveat and sought orders that Socrates be replaced by an independent administrator.
Xenia’s application for Socrates’ removal was supported by Maria who as she lived overseas did not want to be appointed as executor. Socrates and Vasil opposed the application.
After the probate caveat lapsed Socrates was granted probate on 29 June 2020.
Xenia submitted on several grounds that Socrates should be removed as executor under s34 of the Administration and Probate Act 1958 (Vic) including that he had remained outside of Australia since August 2008.
The court held that Xenia failed to provide sufficient evidence that Socrates’ conduct was sufficient to have him removed as an executor.
The VCAT proceeding was not considered sufficient grounds for removal as Socrates was not a party to and the estate did not have an interest in the proceeding.
Similarly, Socrates overseas residency was not sufficient as he had not been overseas for two years from the date of the grant.