Profilio v Profilio [1999] NSWSC 657

Profilio v Profilio [1999] NSWSC 657

Because the administration of the estate had become ineffective through lack of cooperation, and because the defendant did not contend against removal, the Court's inherent probate power and its trustee jurisdiction could be exercised to remove Antonio Profilio from the grant of probate and from office as trustee, without revoking the grant as to the continuing executrix, in order to secure the due and proper administration of the estate and protect the beneficiaries' interests.

Jurisdiction
Australia
Judgment Date
28 June 1999
Procedural Posture
Equity Proceedings Concerning Probate and Trusts of a Deceased Estate / Hearing of Plaintiffs' Claim That the Defendant Be Removed as Executor and Trustee
Outcome
Defendant removed as executor and trustee; continuing executrix and trustee confirmed; new trustees appointed; directions made for payment of monies and costs.
Legal Topics
['removal of Executor' 'removal of Trustee' 'revocation of Grant of Probate' 'administration of Deceased Estate' 'conflict Between Executors']
['probate' 'equity' 'trusts' 'succession'] ['removal of Executor' 'removal of Trustee' 'revocation of Grant of Probate' 'administration of Deceased Estate' 'conflict Between Executors']

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Procedural Posture

Equity Proceedings Concerning Probate and Trusts of a Deceased Estate / Hearing of Plaintiffs' Claim That the Defendant Be Removed as Executor and Trustee

Legal Issues

  1. 1 ['Whether the defendant should be removed as executor and trustee because the administration of the estate had become ineffective through lack of cooperation between the executors and trustees.' "Whether the Court's inherent power permitted removal of one executor from a grant of probate made to two executors without revoking the grant as to the continuing executrix." 'What directions should be made for payment of monies from joint bank accounts in which the estate was interested.']

Ratio Decidendi

Because the administration of the estate had become ineffective through lack of cooperation, and because the defendant did not contend against removal, the Court's inherent probate power and its trustee jurisdiction could be exercised to remove Antonio Profilio from the grant of probate and from office as trustee, without revoking the grant as to the continuing executrix, in order to secure the due and proper administration of the estate and protect the beneficiaries' interests.

Court Disposition

Defendant removed as executor and trustee; continuing executrix and trustee confirmed; new trustees appointed; directions made for payment of monies and costs.

Orders

  • ['In probate proceedings 103116 of 1998, Antonio Profilio, the second named executor, was removed from the grant of probate dated 9 March 1998 with effect on and from 28 June 1999, without prejudice to the continuing executorship of Lorraine Profilio.' 'The defendant was removed from office as trustee of the trusts...