Removing an executor

In Stegnjaic v Stegnjaic [2019][1], the late Mr Stevan Stegnjaic died on 23 October 2016. Mr Milorad Stegnjaic was appointed the sole executor of his late father’s estate. Probate of his late father’s Will was granted to him. The deceased had one other child, namely Mr Sinisa Stegnjaic, Milorad’s brother. 

The Will contained an “executor’s discretion” where Milorad could postpone the sale of any asset for as long as he may think fit in his absolute discretion. Following payment of the estate’s debts, the remainder of the estate was to be divided between his two children as tenants in common in equal shares.

On 25 May 2018, Sinisa made an application to the Court to remove his brother as executor of the Estate on the grounds that Milorad had failed in the due and proper administration of the Estate.

The Estate consisted of two properties in Canley Heights, each exceeding $800,000. Milorad resisted calls for the sale of these properties and the distribution of the Estate by his brother on the ground that the deceased did not want to him to sell any property. He denied that this conduct amounted to conduct that would see him removed as an executor.

J Rein found that Milorad had failed to administer the Estate. He noted the discretion contained in the Will not to sell the real estate, but that this discretion did not amount to an instruction not to sell the real estate. The Court also found that he had intermingled his money with that of the Estate’s, falsely omitted his brother as a beneficiary under the Estate in the summons for Probate to the Court, received monies from the Estate without justification, and did not keep adequate records of claimed expenditure on behalf of the Estate.

For these reasons, the Court was satisfied that Milorad should be removed as executor of the Estate. Sinisa also made a claim for family provision.  An order was made in his favour that the assets of the Estate were to be sold and an equal distribution made to the two brothers after payment of relevant costs.

[1] NSWSC 1208 (15 July 2019)

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