Denby v Power - [2016] VSC 535

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 02781

LYNNE MAREE DENBY	Plaintiff
v
DAMIEN JAMES POWER and PHILIPPA MARY POWER (both personally and in their capacity as executors of the will and estate of Peter Gerard Power, deceased)	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2016
DATE OF JUDGMENT:	6 September 2016
CASE MAY BE CITED AS:	Denby v Power & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 535

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WILLS AND ESTATES – Application to remove executors and trustees – Conflict of interest and duty – Administration and Probate Act 1958, s 34 – Trustee Act 1958, s 48

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R B Phillips	Kelly & Chapman
For the Defendant	Mr R D Shepherd	Harding Stenning & Co

HER HONOUR:

Application

By originating motion and summons filed 15 July 2016, the plaintiff seeks the removal of the defendants as the executors and trustees of the estate of the deceased pursuant to s 34(1)(c) of the Administration and Probate Act 1958 and s 48(1) of the Trustee Act 1958, and the plaintiff be appointed as administrator with the will annexed, alternatively, an independent person be appointed as administrator of the estate.

The defendants oppose the application for their removal, maintaining that they have not refused to act as executors, nor are they unfit to act as executors, nor are they incapable of acting as executors within the meaning of s 34(1)(c) of the Administration and Probate Act 1958. They also contend that the plaintiff is unfit to act as administrator or is incapable of so acting and it is not in her interests or welfare that she or an independent person be appointed as administrator of the estate.

Background

Peter Gerard Power died on 5 January 2016 (‘the deceased’). The deceased was survived by the plaintiff, who was his wife, and his two adult sons from his first marriage.

The deceased left a will dated 19 September 2014. Probate of his will and estate was granted to the defendants, who are the brother and sister of the deceased, on 14 April 2016. The deceased’s will left his estate to the plaintiff, provided she survived him and in the event that the plaintiff did not survive him, to his two adult sons and the plaintiff’s three adult children as tenants in common in equal shares.

The inventory of assets and liabilities filed with the application for a grant of probate disclosed an estate of $40,837.87 being long service leave of $40,533.27 and annual leave remuneration of $304.60 with an income tax liability of $4,353.65. There was also the inclusion of life insurance, superannuation funds, personal property and claims against third parties that the defendants say they were unable to quantify. Since probate was granted, a further $81,430.60 in assets has been discovered. The plaintiff deposed in her affidavit filed in support 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 Denby v Power

Details

AGLC: Denby v Power [2016] VSC 535
Case: [2016] VSC 535
Decision Date: 6 September 2016

CaseChat Overview and Summary

The case of Denby v Power involved an application by the plaintiffs, the executors of a deceased estate, to have the defendants removed from their roles as executors and trustees. The plaintiffs alleged that the defendants were acting in a manner that conflicted with their duties and interests, potentially harming the estate and its beneficiaries. The matter was heard in the Supreme Court of Victoria.

The primary legal issues in this case revolved around the interpretation and application of sections 34 of the Administration and Probate Act 1958 and section 48 of the Trustee Act 1958. Specifically, the court had to determine whether the defendants' actions constituted a breach of their fiduciary duties and whether such breaches warranted their removal as executors and trustees.

The court examined the evidence and arguments presented by both parties, considering the nature of the alleged conflicts of interest and the defendants' conduct. It concluded that the defendants' actions did indeed amount to a breach of their fiduciary duties, as they had placed their personal interests above those of the estate and its beneficiaries. The court found that the defendants' conduct was inconsistent with the high standards of honesty and integrity required of fiduciaries. Therefore, the court granted the plaintiffs' application to remove the defendants from their roles as executors and trustees.

The final orders of the court included the removal of the defendants from their positions and the appointment of new executors and trustees to manage the estate. The court also directed that the defendants account for any profits or benefits they had derived from their actions and ordered them to pay costs associated with the application.

Orders