Application by Horner - [2018] VSC 736

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2018 02438

APPLICATION BY:

MARK JAMES HORNER (in his capacities of co-executor, co-trustee and beneficiary of the EDWARD JAMES HORNER ESTATE)

Applicant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2018
DATE OF JUDGMENT:	26 November 2018
CASE MAY BE CITED AS:	Application by Horner
MEDIUM NEUTRAL CITATION:	[2018] VSC 736

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ADMINISTRATION AND PROBATE — Where applicant is one of three executors of estate — Applicant seeks answers to questions of law — Where questions concern disputed issues between executors — Application pursuant to r 54.02 not appropriate where issues disputed and co-executors not parties — Supreme Court (General Civil Procedure) Rules 2015, Order 54.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person

HER HONOUR:

Introduction

This proceeding concerns certain questions relating to the cremated remains of Barbara Jean Horner (‘Mrs Horner’) and Edward James Horner (‘Mr Horner’).

Mrs Horner died in 1994. Mr Horner died in 1999. They were survived by their three adult children, namely, the applicant and his two siblings, John and Jane (respectively ‘John’ and ‘Jane’). Mr Horner was the executor of the estate of Mrs Horner. The three children are the executors of the estate of Mr Horner.

Application

In support of his application made by originating motion filed 26 June 2018, the applicant filed an affidavit sworn 26 June 2018, together with detailed written submissions comprising 33 pages, without annexures. The applicant’s stated objective is to ensure that his parents’ cremated remains are treated with dignity and respect.

The applicant seeks directions as to the following questions of law:

Question 1: What are the executors’ rights and duties regarding Mum’s ashes given that she left burial instructions was a devout Christian and Dad was her executor?
Question 2: What are the executors’ rights and duties regarding Dad’s ashes given that Dad left no burial instructions and was a practicing Christian?
Question 3: Is there property in the ashes and if so who is the owner?
Question 4: Does the law grant the applicant a right of access to the ashes to express his respects and verify the ashes are treated with dignity and respect?
Question 5: Is dealing with and disposing of the ashes an exercise of joint or several power?
Question 6: Does the applicant have a right to make enquiries of John and Jane regarding [sic] chattel which is missing from the estate and right of access to accounts and documents of the estate or is he statutorily barred or restrained in some other way?

By notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006, the Attorney-General of the State of Victoria was notified of the application. By letter dated 29 August 2018, the Attorney-General notified the Court that he would not be intervening in the proceeding.

On the first return of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Horner

Details

AGLC: Application by Horner [2018] VSC 736
Case: [2018] VSC 736
Decision Date: 26 November 2018

CaseChat Overview and Summary

The applicant in this matter sought answers to questions of law from the court. These questions arose from a dispute among the executors of an estate. The applicant was one of three executors, and the questions concerned issues that were disputed between the executors. The application was made pursuant to rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015.

The court was required to determine whether it was appropriate for the applicant to seek answers to questions of law in the circumstances presented. Specifically, the court needed to consider whether the questions were suitable for determination under rule 54.02, given that the issues were disputed and the co-executors were not parties to the application.

The court concluded that the application was not appropriate under rule 54.02. The court found that the nature of the questions and the fact that they involved disputes between co-executors meant that the application did not meet the criteria for answers to questions of law as outlined in the rules. Consequently, the court dismissed the application.

No final orders were made in this matter, as the court dismissed the application for answers to questions of law. The applicant was advised to pursue other avenues for resolving the disputed issues among the executors, such as mediation or litigation.

Orders