Removal of an executor. The plaintiff sought to have his brother removed as an executor under s34(1) and that he be appointed. His Honour held that the defendant’s failure to agree to a sale of the house and the facts demonstrated a clear incapacity on the part of the defendant to perform his executorial duties with a reasonable period of time. His Honour held that in view of the defendant’s behaviour he was not confident any auction approved by the defendant would proceed smoothly. His Honour granted the application to remove the defendant as executor and substituted his brother, the plaintiff, as executor.
Morgan v Morgan [2000] Supreme Court of Victoria
A similar case was Sharpe v Forbath 2000 VSC where almost two years had elapsed since the defendant’s mother had died, yet, apart from belatedly obtaining a grant of probate, the defendant had done little or nothing in the way of administering her estate. The Judge held that this was totally unacceptable. “To my mind it demonstrates that the defendant is simply being obstructive and refusing to act; alternatively, that he is unfit to act.
Construction and Interpretation. Construction of phrase in handwritten document proved for Probate. “The rest to be divided between the three of you.” Plain meaning was given to words and held to be a disposition of whole of the residuary estate.
McDonald v Freston [2002] VSC
Unsigned Will on a computer Order made pursuant to s.9 of the Wills Act 1997, probate of the will comprising a printed copy of the contents of a computer file dated 27 May 1998 contained on the hard disc of a desktop computer, being the property of the Victoria University of Technology, be granted to Marian Grace Burford, the executor according to the tenor of the said will.
In the will of Mark Edwin Trethewey [2002] VSC
Legal concept of ademption. The residential home which was the subject matter of a gift in the will was sold by the attorney. The testator was incapacitated and ignorant of the sale. The question was whether the gift of the home to a beneficiary named in the will was adeemed by the sale. Held: the gift was not adeemed. The attorney was not aware of the contents of the will.
Simpson v Cunning [2011] VSC
Lack of testamentary capacity claim. When there are circumstances which give rise to suspicion about the testatrix’s testamentary capacity , the propounder of the will assumes the burden of affirmatively proving, to the satisfaction of the Court, that she had the requisite capacity to make the will, that is, that she was of sound mind, memory and understanding when she executed it or, if instructions for the will preceded its execution, when the instructions were given.
Capacity established and probate of the will granted.
The will of Dimitra Giofches [2011] VCS