Clarke v Clarke

[2010] VSC 143

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1284 of 2010

IN THE MATTER of section 34 of the Administration and Probate Act 1958 and section 48 of the Trustee Act1958

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IN THE MATTER of rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2005

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IN THE MATTER of the Will and Estate of RAYMOND GEORGE CLARKE, deceased

BETWEEN:

RAYMOND JOHN CLARKE	Plaintiff
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DOROTHY JEAN CLARKE	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2010
DATE OF RULING:	31 March 2010
CASE MAY BE CITED AS:	Clarke v Clarke
MEDIUM NEUTRAL CITATION:	[2010] VSC 143

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ADMINISTRATION AND PROBATE – Defendant sought to be removed as the administrator of deceased’s estate - medical evidence establishes that the defendant is incapable of acting as administrator – deceased’s estate to be vested in the plaintiff for the purposes of its administration - Administration and Probate Act 1958 s 34, Trustee Act 1958 s 48.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms J. Tierney (Solicitor)	Hall and Willcox Lawyers
For the Defendant	No appearance
For the Plaintiff in related proceeding 8553 of 2008	Mr K. Kappadath	John D Snodgrass and Associates

HIS HONOUR:

1. In this matter the plaintiff seeks the removal of his mother as the administrator of the deceased's estate.  The defendant is 89 years of age and has suffered a stroke and is in poor health.  The medical evidence before the Court establishes that she is incapable of acting as administrator.  The substitution of the plaintiff as administrator of the estate is consented to by each of the persons entitled to take under the intestacy.  It is further not opposed by Mark Matthews, who is the plaintiff in Supreme Court Proceeding No. 8553 of 2008, and who claims an interest in the estate by reason of the relationship which he had to the deceased. 

1. The affidavit of the plaintiff recites at para 16 that if he is appointed administrator of the deceased's estate, he undertakes to the Court that he will well and truly administer the estate of the deceased according to law and if required by the Court or by the Registrar, will make and file or cause to be made and filed in the Court a true and just account of the administration of the estate.

1. Upon those undertakings and having regard to the circumstances of the matter, I am prepared to make orders in the following terms: 

1. First, the order will recite under "Other Matters" the undertakings set out in para.16 of the plaintiff's affidavit.  Secondly, the orders will also recite under "Other Matters" that consequent upon these orders I propose to make in this proceeding, the plaintiff will be substituted in Supreme Court Proceeding No. 8553 of 2008 as defendant in that proceeding in place of Dorothy Jean Clarke, the defendant in this proceeding. 

1. I will further order that pursuant to s 34(1) of the Administration and Probate Act 1958, the defendant be removed as administrator of the estate of the deceased and that the plaintiff be appointed as administrator in the place of the defendant. 

1. I will further order that the estate of the deceased vest in the plaintiff for the purposes of its administration in accordance with s 34(4) of the Administration and Probate Act 1958. 

1. I have come to the view that it is unnecessary to make the order referred to in the summons pursuant to s 48 of the Trustee Act 1958. 

1. I propose to reserve liberty to apply to all persons claiming an interest in the estate and I will direct that the costs of this application be paid from the estate and I will further direct that this order be endorsed on the grant of letters of administration of the estate.

1. I will order that this order be signed by the judge pursuant to rule 60.04 of the Rules of the Supreme Court.