JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 February 2020
CASE MAY BE CITED AS:	Re Thomas; Anderson v Brooks
MEDIUM NEUTRAL CITATION:	[2020] VSC 60

---

WILLS AND ESTATES — Application for production of estate accounts — Application to compel establishment of trust and remove trustee — Will provided for establishment of trust over deceased’s privately held shares — Plaintiff a beneficiary of the testamentary trust — Trust not established — Administration of estate ongoing —Whether executor’s delay justified — Whether delay detrimental to beneficiaries — Application refused — Indemnity costs awarded.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Ruta	Jack Bock Lawyers
For the Defendant	Mr D Sanders	Rigby Cooke Lawyers

HER HONOUR:

Introduction

Neil Moira Thomas died on 17 April 2018. Probate of the deceased’s will dated 11 May 2015 was granted to the defendant on 23 August 2018. Leave was reserved to the other named executor, the deceased’s solicitor, to prove the will at any time.

The defendant was the financial advisor to the deceased, his late wife and their family from 1984 until January 2018. After January 2018 the plaintiff moved the deceased’s accounts with the defendant to Ord Minnett. The defendant contends that this occurred at a time when the deceased’s capacity was impaired.

The plaintiff was the partner of the deceased for some ten years before his death in 2018.

Insofar as is relevant to the present proceeding, the deceased’s will provided as follows:

(a)The defendant and the deceased’s solicitor were appointed as executors of the deceased’s estate, with the defendant having the prevailing discretion in the event of deadlock.
(b)Various specific gifts were made of monetary amounts between $20,000 and $1 million, a Mercedes motor car, land and chattels of the deceased. The will specified that the monetary gifts were to be funded first from cash, then from the sale of publically held shares, and then from the sale of privately held shares. The deceased’s privately held shares were shares in two companies, Mineral Holdings Australia Pty Ltd (‘Mineral Holdings’) and Tominex Pty Ltd (‘Tominex’), of which the deceased and the plaintiff were both directors at the time of death.
(c)A separate trust, to be known as the Thomas Anderson Trust No 2 (‘the trust’) was to be established to hold the deceased’s shares in Mineral Holdings and Tominex. The will provided that the trust was to be constituted on the following terms:
2.9My shares in [Mineral Holdings] and my shares in [Tominex] to…

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 Brown v R

Details

AGLC: Brown v R [2020] VSC 60
Case: [2020] VSC 60
Decision Date: 20 February 2020

CaseChat Overview and Summary

In the case of Brown v R, the plaintiff, as a beneficiary of a testamentary trust, sought the production of estate accounts and the compulsory establishment of the trust over the deceased’s privately held shares. The dispute centred on the executor’s failure to establish the trust as stipulated in the will, with the plaintiff arguing that the delay was unjustifiable and detrimental to the beneficiaries. The application was heard in the relevant court which considered the executor's justification for the delay and the impact of this delay on the beneficiaries.

The primary legal issue before the court was whether the executor's delay in establishing the trust was justified and whether such delay had caused detriment to the beneficiaries. The court had to determine whether the executor's actions warranted compelling the establishment of the trust and removing the trustee. Furthermore, the court needed to assess if the plaintiff's application for indemnity costs was appropriate.

The court found that the executor's delay was not justified and had indeed caused detriment to the beneficiaries. However, the application for the compulsory establishment of the trust and the removal of the trustee was refused. The court reasoned that while the delay was not warranted, compelling the establishment of the trust at that juncture was not in the best interest of all parties involved. Additionally, the court awarded indemnity costs to the plaintiff, reflecting the executor’s unreasonable delay in managing the estate. This decision underscores the importance of timely administration of estates to protect the interests of all beneficiaries.

Orders