Dimos v Skaftouros & Ors

(2004) 9 VR 584; [2004] VSCA 141

Victorian Court of Appeal

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Interrogate

Catchwords

1. Administration and Probate
2. › Executor
3. › Removal of executor
4. › Unfitness to act
5. › Whether 'unfit to act' in s 34(1)(c) extends to breach and neglect of duty
6. › In Re Turner [1923] VLR 189 not to be followed
7. › Administration and Probate Act 1958 (Vic), s 34(1)(c)
1. Administration and Probate
2. › Executor
3. › Removal of executor
4. › Discretion
5. › Welfare of beneficiaries as paramount consideration
6. › Whether findings of misconduct open on evidence
7. › Whether procedural fairness observed
1. Statutory Interpretation
2. › Consolidation of statutes
3. › Presumption that parliament adopts judicial construction on re-enactment
4. › Strength of presumption where construction consistently rejected in subsequent cases
1. Practice and Procedure
2. › Appeal
3. › New point of law on appeal
4. › Concession at trial on applicable legal principles
5. › Whether leave to amend notice of appeal should be granted

Quick Take

The term 'unfit to act' in s 34(1)(c) of the Administration and Probate Act 1958 (Vic) extends to breach and neglect of duty by an executor, including unwarranted delay, failure to communicate with beneficiaries, failure to account, conflict of interest and duty, and unreasonable delay in paying entitlements. In Re Turner [1923] VLR 189, which confined 'unfit to act' to disqualification by bankruptcy or felony conviction, is not to be followed. The welfare of beneficiaries and protection of their interests are the paramount considerations in exercising the discretion to remove an executor.