Applicant Opposes Appointment of Defendant as Executor
Re Vasiliades; Pappas v Vasiliades [2021] VSC 720 (5 November 2021)
The plaintiff filed an application seeking that the defendant be passed over as an executor of the will of the deceased and that letters of administration be granted to State Trustees Limited. On the other hand, the defendant denied any impropriety and the assertion he is not capable or suitable to be appointed as executor. The Court, in adjudicating this matter, relied upon the submissions by the parties and the sufficiency of their evidence.
Facts:
Avgi Demetrios Vasiliades (‘the deceased’) died on 14 September 2019 leaving a will dated 27 November 2016 (‘the will’). She was survived by 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. 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. The defendant opposes the application.
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 the deceased made her own decisions about the payment of expenses and her financial matters and that the parties had 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. On 17 October 2019, which was approximately one month after the deceased’s death, the solicitor for the plaintiff wrote to the solicitors for the defendant inviting the defendant to renounce probate. On 30 October 2019 the plaintiff lodged a caveat objecting to a grant of probate to the defendant seeking that the defendant be passed over as an executor of the will of the deceased and that letters of administration be granted to State Trustees Limited.
The plaintiff claims that the defendant has remained outside Australia since August 2008; was subject to proceedings in the Federal Court of Australia commenced by the Commissioner of Taxation in relation to outstanding income tax where he was ordered to repay the Australian Tax Office in excess of $30,000,000; sought payment of the deceased’s nursing home accommodation bond from the deceased’s nursing home prior to probate being granted; and is involved in an ongoing dispute with the plaintiff and their siblings in relation to the deceased’s estate and other family assets.
The defendant deposed specifically that the orders for repayment of funds to the Australian Taxation Office were appealed with the matter fully and finally settled in March 2018; the estate includes a property at Lemesos, Zoopigi, Cyprus not included in the plaintiff’s account of the estate assets; his presence overseas would not hinder his administration of the estate as the assets in Australia are not of a nature that require his personal presence to oversee transactions; as he is a Cypriot, speaks the language and is currently located in Dubai, he is best suited to administer the Cyprus property; and in respect of the VCAT Falconbridge proceeding, he is not a director of the company and has no active role in the litigation.
Issue:
Whether or not the defendant should be removed as an executor.
Applicable law:
Administration and Probate Act 1958 (Vic) s 34(1)(a)(c) - where an executor to whom probate has been granted remains out of Victoria for more than two years or is unfit to act or incapable of acting, the Court may order the removal of the executor and appoint some proper person or trustee company as administrator in place of the executor.
Trustee Act 1958 (Vic) s 48(1) - pursuant to which the Court may make an order appointing a new trustee either in substitution for or in addition to any existing trustee whenever it is expedient to do so.
Supreme Court (Administration and Probate) Rules 2014 - pursuant to which the application seeking that the defendant be passed over as an executor of the will of the deceased and that letters of administration be granted to State Trustees Limited is made.
Miller v Cameron[1936] HCA 13; (1936) 54 CLR 572 -provides that an executor or trustee will not necessarily be removed where there is a conflict between duty and interest, but in some cases such conflict may be sufficient.
Analysis:
The defendant made it clear to the plaintiff that he would seek to obtain a grant of probate. On 20 April 2020 the defendant’s solicitor informed the plaintiff that he intended to apply for a grant of probate. In May 2020 the defendant informed the plaintiff that it was always his intention to apply for a grant of probate and defend the passing over application, notwithstanding that she had lodged a caveat objecting to the grant. By the time the application for the grant was filed, the caveat had lapsed and the Court informed the plaintiff that the grant was made as there was no extant caveat to prevent the grant being made.
The grant of probate to the defendant was made on 29 June 2020 and the two year period required under the Act has not yet expired. The plaintiff’s reliance on the absence of the defendant from Australia since August 2008 is not a proper basis to rely on for his removal as an executor. Regarding the allegation that the defendant sought to gain access to the deceased’s nursing home accommodation bond, the plaintiff did not provide the relevant correspondence from the nursing home, Bluecross. It was also alleged that Maria was contacted in March 2019 ‘by relatives in Cyprus informing her that [their] brother Vasil ... had asked for a property owned by the deceased to be sold and the proceeds sent to him’' but this allegation does not involve the defendant.
As to the VCAT Falconbridge proceeding, the defendant is a parent of a shareholder of one of the parties and the brother of the director of the company. He is not a party to the proceeding and has no personal interest in it. Further, the estate does not have an interest in the proceeding. There is no actual conflict on the part of the defendant in acting as executor and simultaneously pursuing the VCAT attorney proceeding where the defendant alleges that the plaintiff breached her duty as attorney. Lastly, the deceased had signed a joint financial and medical power of attorney in favour of the defendant in addition to the plaintiff.
Conclusion:
The matters raised by the plaintiff in support of her application to remove the defendant as executor, including allegations in respect of the defendant’s application for a grant of probate, do not provide any basis for his removal. The Court will not exercise its discretion to remove the defendant as executor and trustee of the estate and make an order appointing State Trustees in his place. The Court will order that subject to any submissions as to costs, the proceeding be dismissed. If the parties are unable to reach agreement on the costs of the proceeding, short written submissions are to be filed within 14 days.
