The death of a loved one often brings not just grief but legal and practical complications—particularly for executors who are tasked with administering the deceased’s estate. One of the most difficult and emotionally charged issues that can arise is when a person, often a family member or beneficiary, refuses to vacate a property that forms part of the estate.
Under Victorian law, executors have a clear legal duty to collect and manage estate assets. This includes gaining control of real property to enable its sale, transfer or proper use in accordance with the deceased’s will and the laws of probate. But what happens when someone—say a sibling or child of the deceased—refuses to leave the property after the testator’s death?
As a firm specialising in probate and estate litigation, Hayton Kosky Lawyers recently handled such a matter in the County Court of Victoria. This case highlights how executors can—and often must—take decisive legal action to fulfil their responsibilities.
The Legal Role of an Executor in Victoria
The Administration and Probate Act 1958 (Vic) gives an executor the legal authority to administer a deceased estate after probate is granted. This includes:
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Collecting estate assets
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Paying liabilities and debts
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Distributing the estate in accordance with the will
If a property is occupied and the occupant has no legal right to remain—or their right has expired—the executor is empowered to seek possession to deal with the property. This could involve preparing it for sale, leasing it, or otherwise managing it to carry out the intentions of the will.
Possession Applications: A Real Example from Victoria
A practical example can be seen in the matter of K v K (CI-25-03877) [unreported], where our firm acted on behalf of the executor. In that case, the deceased’s daughter remained in occupation of the property more than 15 months after the date of death, refused to vacate, and returned all legal correspondence—including a formal letter enclosing a court order.
Despite repeated attempts to offer alternative accommodation, and generous timeframes to allow her to relocate, the occupant refused to engage. This necessitated a formal possession application under Order 53 of the County Court Civil Procedure Rules 2018 (Vic). The court ultimately granted an Order for Possession, acknowledging the executor’s legal duty to recover control of the estate asset.
But the story doesn’t end there.
Why a Court Order Isn’t Always Enough: Sheriff Enforcement May Be Required
A possession order from the County or Supreme Court is a necessary first step—but it may not be enough to ensure the occupant leaves the property.
In the K matter, even after the court issued the Order for Possession, the occupant did not comply voluntarily. As a result, we filed an application for a Warrant of Possession under Form 53B.
A Warrant of Possession authorises the Sheriff’s Office to physically attend the property and take possession on behalf of the executor. The process includes:
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Serving a Notice to Vacate, usually 48 hours before the scheduled possession date
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Arranging for a locksmith (executor’s responsibility)
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Having an independent third party present to take control of the new keys
This is an emotionally difficult but often necessary step to fulfil the executor’s obligations and finalise the estate.
Lessons from Martin v Martin (S ECI 2023/03459)
The K case is not isolated. In Martin v Martin (S ECI 2023/03459)—a case listed in the Supreme Court of Victoria—an executor similarly sought a possession order to regain control of estate property. Although limited public reporting exists on the Martin matter, it stands as a reference point in probate litigation circles.
Both cases highlight a vital legal principle: executors in Victoria have not just the power but the duty to recover estate property where required. Courts support those duties and will grant possession orders—especially when it is shown that notice has been given, offers have been made, and the administration of the estate is being impeded.
What Should Executors Do in These Situations?
If you’re an executor and someone is occupying estate property without consent:
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Attempt Communication: Provide written requests to vacate with reasonable timeframes.
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Make Reasonable Offers: If possible, offer alternative accommodation or assistance to ease the transition.
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Document Everything: Keep copies of all correspondence, delivery methods, and responses.
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Engage Legal Advice Early: Possession proceedings are procedural and must comply with court rules—legal advice will ensure accuracy.
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Apply for Possession: After reasonable steps have failed, apply under Order 53 in the County or Supreme Court.
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Prepare for Sheriff Enforcement: If needed, apply for a Warrant of Possession and be ready for practical steps such as locksmiths and key management.
Final Word
While these matters are often emotionally fraught and can involve delicate family dynamics, the law in Victoria is clear. Executors are responsible for administering estate assets in the best interests of all beneficiaries—and that may include taking legal steps to recover possession of property.
At Hayton Kosky Lawyers, we have specialist expertise in estate possession proceedings and understand both the legal and human sides of these disputes.
If you are an executor facing resistance or uncertainty around estate property, contact us for expert advice and representation.