The Supreme Court of Victoria removed a licensed trustee company as executor/administrator and trustee of three deceased estates under s 34(1)(c) of the Administration and Probate Act 1958 (Vic) and s 48 of the Trustee Act 1958 (Vic), finding the defendant was exposed to strong prima facie claims for waste of estate assets (including excessive remuneration paid to one beneficiary, failure to secure agistment income, and failure to sell estate property in accordance with representations made to beneficiaries), which gave rise to irreconcilable conflicts of interest and duty. The Court held that the defendant's conduct created a reasonable perception of partiality in favour of one beneficiary over others, and that it was not necessary to establish actual breach of trust — a reasonable case for investigation of claims against the executor, combined with the appearance of conflict, was sufficient to engage and exercise the removal discretion. The Court foreshadowed directing the replacement administrator to perform an existing alleged agreement for sale of the principal estate property to the favoured beneficiary within a specified deadline, unless judicial advice to the contrary was sought.
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