Estate of Jakov Pavic

[2024] ACTSC 414

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Estate of Jakov Pavic

Citation: 

[2024] ACTSC 414

Hearing Date: 

13, 19 December 2024

Decision Date: 

20 December 2024

Before:

Mossop J

Decision: 

See [54]

Catchwords: 

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Forfeiture under public policy rule – application for judicial advice – will made by the testator establishing testamentary trust to benefit wife then son and daughter – son of testator unlawfully kills his mother – whether forfeiture rule prevents son from being a beneficiary of the testamentary trust – whether distribution of estate to daughter appropriate

Legislation Cited: 

Administration and Probate Act 1929 (ACT), s 43A

Forfeiture Act 1991 (ACT), ss 3, 4

Forfeiture Act 1995 (NSW)

Forfeiture Act 1982 (UK)

Married Women’s Property Act 1882 (UK), s 11

Succession (Homicide) Act 2007 (NZ)

Trustee Act 1925 (ACT), ss 59(4), 63

Cases Cited: 

Batey v Potts [2004] NSWSC 606; 61 NSWLR 274

Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147

CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53; 224 CLR 98

Edwards v State Trustees Ltd [2016] VSCA 28; 54 VR 1

Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490

Helton v Allen (1940) 63 CLR 691

Henderson v Wilcox [2015] EWHC 3469 (Ch)

Hilton v Legal Profession Admission Board [2017] NSWCA 232

In re Callaway; Callaway v Treasury Solicitor [1956] Ch 559

In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253; 21 ACTLR 226

Rasmanis v Jurewitsch (1968) 88 WN (Pt 1) (NSW) 59

Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844; 10 ASTLR 251

Re Jane Tucker (1920) 21 SR (NSW) 175

Re Thorp and the Real Property Act (1961) 80 WN (NSW) 61Saunders v Vautier (1841) 4 Beav 115; 41 ER 482

Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406

Smith v Western Australia [2014] HCA 3; 250 CLR 473

Troja v Troja (1994) 33 NSWLR 269

Texts Cited:

R Goff and G Jones, The Law of Restitution (Sweet & Maxwell, 1966)

K Mason and JW Carter, Restitution Law in Australia (Butterworths, 1995)

TG Youdan, "Acquisition of Property by Killing" (1973) 89 LQR 235

Parties: 

Miryam Alexandra Pavic ( Applicant)

Representation: 

Counsel

D Moujalli with K Fox ( Applicant)

Solicitors

Lexmerca Lawyers ( Applicant)

File Number:

SC 210 of 2022

MOSSOP J:

1․The applicant, Miryam Pavic, is the administrator of the estate of the late Jakov Pavic, who died in November 1976. By application in proceeding filed 11 October 2024 and an amended application filed on 16 December 2024, the applicant seeks relief, including by way of judicial advice, pursuant to s 63 of the Trustee Act 1925 (ACT), so as to allow for the final distribution of the estate.

Factual background

2․The factual background to the application is unusual.

3․Jakov Pavic (Jakov) died on 30 November 1976. He was survived by his wife, Danijela Pavic (Danijela), his son, Mark Pavic (Mark), and his daughter Miryam Pavic (Miryam). He had no other children.

4․Jakov left a will dated 28 June 1973 (Jakov’s Will). On 20 September 1977, the Supreme Court of the Australian Capital Territory granted probate of Jakov’s Will to Danijela and Murray Wilcox, being the executors named in the will. At the time the will was made, Murray Wilcox was a barrister. He was subsequently a judge of the Federal Court of Australia from 1984 until 2006. He was also an additional judge of the Supreme Court of the Australian Capital Territory until his retirement in 2006.

5․Relevantly for present purposes, Jakov’s Will provided that:

(a)a testamentary trust be established, comprised of money in the estate and other money received from the sale of real and personal property in the estate (Jakov’s Trust);

(b)Jakov’s Trust was to pay the annual income of the trust to Danijela during her life, provided she did not re-marry; and

(c)in the event of Danijela’s death or remarriage, the beneficiaries of Jakov’s Trust were to be Jakov’s child or children and, if more than one, were to benefit in equal shares.

6․Danijela died on or about 28 March 1985. Her body had been found in Lake Burley Griffin.

7․On 3 April 1985, Mark was charged with the murder of Danijela. Following a trial, Mark was found guilty of the manslaughter of Danijela, and, on 2 October 1985, he was sentenced to eight years’ imprisonment with a four-year non-parole period. These periods were in addition to the six months spent in custody on remand.

8․The remaining executor, Murray Wilcox, died in 2018. His executor in turn was his wife, Christina Wilcox, who survived him. By operation of s 43A of the Administration and Probate Act 1929 (ACT) she became the executor of Jakov’s estate.

9․On 29 July 2022, Kennett J made orders discharging Christina Wilcox from the office of executor of Jakov’s estate and appointing Miryam as the administrator of Jakov’s estate.

10․On many different occasions between 2017 and 2023, solicitors acting for Miryam made attempts to locate and communicate with Mark. Ultimately, in May 2023, Mark made contact with the solicitors. He was provided with information about the estate but declined to provide verification of his identity. By letter dated 12 June 2023, he maintained his unwillingness to verify his identity. In response to a letter indicating that the executor would take steps to finalise the matter and that any entitlement that he had may be forfeited or converted to unclaimed money, he responded by text message on 18 September 2023:

Do what you have to do, but exclude me from any consideration as I am just not interested.

Please discontinue communication with me for this matter.

11․The application in proceeding filed 11 October 2024 was served on Mark via text message, pursuant to orders made by the Supreme Court on 8 November 2024. He did not appear on the date of which he was notified, namely, 25 November 2024, when the matter was adjourned until 13 December 2024. He did not appear at the hearings on 13 and 19 December 2024.

12․As a consequence of Danijela’s death, the terms of Jakov’s Will would have the effect that Mark and Miryam became beneficiaries of Jakov’s Trust. However, that entitlement is subject to the forfeiture rule which is discussed next.

The forfeiture rule

13․There is a general principle recognised by the law that no person can obtain, or enforce, any rights resulting to them by their own crime. Although the formulation and the scope of the principle have been subject to differences and debate, a commonly adopted formulation of the generally applicable rule is that of Harvey J in Re Jane Tucker (1920) 21 SR (NSW) 175 at 180:

Whatever the reason for the rule the Courts seem to have laid down that if a death occur and a person is criminally responsible for that death, and that death is a material fact in the vesting in possession of an interest in favour of such person, that interest is forfeited.

14․The rule is a judge-made rule, reflecting public policy concerns of relatively recent invention. The doctrine was developed following the statutory abolition of common law forfeiture. The history and rationale of the rule are described by Harvey J in Tucker at 179-181 and Kirby P in Troja v Troja (1994) 33 NSWLR 269 at 277-279. Its first clear formulation was in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147. Harvey J remarked in Tucker (at 181) that:

the whole doctrine seems to me to be in a very unsatisfactory condition; it is an extraordinary instance of Judge-made law invoking the doctrine of public policy in order to prevent what is felt in a particular case to be an outrage.

15․In Helton v Allen (1940) 63 CLR 691 at 709, Dixon, Evatt and McTiernan JJ adopted what had been said by Fry LJ in Cleaver at 156, describing the principle of public policy as follows:

… no system of jurisprudence could with reason include amongst the rights which it enforces rights directly resulting to a person asserting them from the crime of that person. In In the Estate of Hall the doctrine was finally established and held to include not only murder but manslaughter.

(Footnotes omitted.)

16․The principle applies in various circumstances, and rights derived under “trusts, wills and intestacies are but some of the applications of it”: Troja at 296.

17․The rule of public policy is not dependent upon any assessment of the unconscionability of the killer taking the benefit of the death: Troja at 298F; 299F-G. The rule will often need to be applied in an equitable context where it operates upon trusts or deceased estates.

18․In the Australian Capital Territory, the operation of the forfeiture rule is potentially affected by the operation of the Forfeiture Act 1991 (ACT). The Forfeiture Act provides a power to the Supreme Court to modify the application of the rule for certain persons who have unlawfully killed another: s 3. That power of modification does not apply to a person who has been convicted of murder: s 4. It remains available in cases of manslaughter.

The application of the forfeiture rule to manslaughter in this case

19․It is clear that the crime of murder will always engage the application of the principle: Edwards v State Trustees Ltd [2016] VSCA 28; 54 VR 1 at [66]. However, there is a division in the authorities as to whether the rule applies to all cases of manslaughter.

20․In Troja, the New South Wales Court of Appeal decided, by majority, that the rule does apply to all cases of manslaughter. At 299, Meagher JA said that the principle was based on “an abhorrence of the notion that one may profit from killing another” and that “[i]t is absolute and inflexible”. At 297-298, Mahoney JA said:

I see no difference where the killing is held to be manslaughter and not murder. The relationship between the killing and the claim to the benefit from it is direct. It is the killing which has brought about the operation of the will.

21․In the subsequent decision in Edwards, the Victorian Court of Appeal, by majority, expressed a different view to the NSW Court of Appeal in Troja. Whelan JA (with whom Kyrou JA agreed) said, at [66]:

Cases of murder are straightforward and would always result in the offender being precluded. Cases of manslaughter have to be considered on a case-by-case basis. The issue is: does the criminal culpability of the offender require that he or she should not be entitled to take a benefit arising from the death?

22․As the reasons in Edwards make clear, the difficulty in an inflexible application of the rule arises from the varying levels of moral culpability that may be involved in convictions for manslaughter.

23․In the present circumstances, it is not necessary to determine, for the purposes of the law of the Australian Capital Territory, which of the above appellate decisions is to be preferred. That is because, even if an approach is adopted that requires an examination of the circumstances on a case-by-case basis, in light of the underlying public policy, on any view, Mark’s criminal culpability is such that he should not benefit from the killing of his mother. In other words, even if the approach articulated by the Victorian Court of Appeal was adopted, the criminal culpability of Mark is such that the forfeiture rule would still apply. The circumstances which make that clear are derived from the sentence that was imposed upon him and the reasons for that sentence:

(a)he received a significant criminal sanction of eight years’ imprisonment with a four-year non-parole period, in addition to the time spent in custody up to the date of sentencing;

(b)the sentencing judge described the offence as one of “serious criminality”;

(c)the sentencing judge described him as having treated his mother with “extreme callousness” and subjected her to “substantial fear”; and

(d)the sentencing judge concluded that there was no “real contrition or remorse on his part”.

24․(I have taken into account the facts as found by the sentencing judge on the basis that there was no objection to the admissibility of those reasons: Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55]-[56]; Smith v Western Australia [2014] HCA 3; 250 CLR 473 at [57].)

What does the forfeiture rule do in this case?

25․As at the date of Danijela’s death, Mark was alive and over the age of 21. He had a vested interest in the trust established under Jakov’s Will.

26․Had Danijela not been killed, Mark would have become a beneficiary of Jakov’s Trust at some later time, upon Danijela’s death or remarriage. The effect of his mother’s untimely death was to bring forward the time at which Mark and his sister, Miryam, became beneficiaries of Jakov’s Trust.

27․What, in those circumstances, is the effect of the forfeiture rule? In Batey v Potts [2004] NSWSC 606; 61 NSWLR 274, Gzell J held in an analogous case that the effect of the forfeiture rule was not to deny the killer the whole of the benefit under the will, but merely the consequences of the acceleration of that benefit. That was a case in which the killer’s father had been given a right of residency in the deceased’s house and, when he ceased to live there, the house was to be held on trust for the killer. The killer was charged with murder of his father but was found guilty of manslaughter. As to the application of the rule, Gzell J said (at [21]-[22], [26]-[27])

21The rule is usually invoked where a perpetrator kills a testator or testatrix. That is not the situation in the instant circumstances. The first defendant killed his father and thereby accelerated the time at which the deceased’s gifts to him were to take effect. I see no reason why the rule should not apply to such circumstances. The public policy against benefiting from one’s crime is not limited to fixed categories. Nor does it focus upon the manner in which the felony results in benefit to the perpetrator. As Meagher JA pointed out in Troja at 299, its principle is founded in public abhorrence of homicide. That abhorrence is no less pronounced because the first defendant killed his father rather than his mother.

22In Cleaver at 157, Fry LJ had no difficulty in supposing that the rule applied to such a case. He said:

“It would equally apply, it appears to me, to the case of a cestui que trust asserting a right as such by reason of the murder of the prior tenant for life or of the assured in a policy.”

…

26The personal right of residence granted to Keith Edward Potts, deceased was foreshortened by the first defendant’s felony and his entitlements were accelerated. It is the benefit of that acceleration that the forfeiture rule strikes down for it denies a felon the enjoyment of any benefit that might otherwise flow from his felonious act. It does not, however, cross the line and take from the felon rights or interests that are not consequential upon his felonious act (Rasmanis v Jurewitsch (1968) 88 WN (Pt 1) (NSW) 59 at 63).

27In my view, the gifts to the first defendant of income and corpus remain intact. They were made by the deceased and did not flow from the homicide. They are not struck down by the forfeiture rule. It is only to the extent that their enjoyment was accelerated that the rule has application. In such circumstances the appropriate remedy is to deprive the killer of the enjoyment of his interest for the period of the victim’s life expectancy (Mason and Carter, Restitution Law in Australia, Butterworths, Sydney, 1995, par 1928).

28․His Honour then described actuarial calculations of the killer’s father’s life expectancy that indicated that the benefit obtained by the killer was an acceleration of his interest by approximately 15 years. The reasons in Batey (at [5]) do not make clear whether the killer’s interest remained subject to the contingency that he survived his father.

29․Having found that the forfeiture rule applied, his Honour then went on to apply the terms of the Forfeiture Act 1995 (NSW) (which had been enacted soon after the decision in Troja) to the circumstances of the case. The end result was the modification of the forfeiture rule so that no consequence flowed from the killing of his father, and the killer took his interests under the will from the date of the death of his father

30․If the forfeiture rule applies in the way that it was explained in Batey, then, in the present case, its operation would be limited and would not extend to a complete denial of Mark’s interest in the estate. Rather, it would require some lesser response, possibly involving actuarial assessment of the benefit gained.

31․The two authorities relied upon by Gzell J were Rasmanis v Jurewitsch (1968) 88 WN (Pt 1) (NSW) 59 at 63 and the first edition of K Mason and JW Carter, Restitution Law in Australia (Butterworths, 1995) at [1928].

32․So far as Rasmanis was concerned, that was a case which involved working out the consequences of an unlawful killing for a joint tenancy involving the killer and the victim in one instance, and the killer, the victim and another person in the second instance. In the course of dealing with that issue, Street J (at 63) denied that the rule had any punitive element and said:

the principle of public policy operates only to deny to the felon the enjoyment of any benefit which might otherwise flow from his felonious act; it does not cross the line and take from him rights or interests which are not consequential upon his felonious act.

33․That was in a context in which Jacobs J had earlier decided, in Re Thorp and the Real Property Act (1961) 80 WN (NSW) 61, that in a joint tenancy, the principle of survivorship entitled the killer of the other joint tenant to the sole legal estate. Street J decided that equity undid that outcome by requiring, in a circumstance where there were only two joint tenants, that the enhancement of the killer’s interest be held on trust for the victim’s estate and, in a case where there were three joint tenants, the enhancement of the killer’s interest be held on trust for the third joint tenant. Thus, notwithstanding the statement of principle in the quote above which recognises the existing interest of the killer, equity was acting to deny the benefit to the killer rather than facilitate it.

34․The reference in Batey to Mason and Carter was to a passage that said:

The holder of a vested remainder cannot, by murdering the life tenant, accelerate the enjoyment of that interest [Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 at 157; Re Tucker (1920) 21 SR (NSW) 175 at 180]. If, however, the remainder is vested in interest before the killing it represents a second example of a situation where the killer has some existing interest in property before the crime. Since the law is not concerned to take from the criminal rights or interests which are not consequential on the unlawful act, the appropriate solution appears to be to deprive the killer of the enjoyment of the remainder for the period of the victim’s life expectancy [See Re Callaway [1956] Ch 559 at 563 and T G Youdan ‘Acquisition of Property by Killing’ (1973) 89 LQR 235 at 250-1 where this and other situations involving successive and defeasible interest are discussed. See also Scott on Trusts 4th ed, 1989, §493.1].

(Footnotes embedded.)

35․The reference to In re Callaway; Callaway v Treasury Solicitor [1956] Ch 559 is not a useful one, merely referring to an example of a situation subsequently referred to in Goff and Jones’ The Law of Restitution (Sweet & Maxwell, 1966), rather than any statement of principle.

36․The article, TG Youdan, "Acquisition of Property by Killing" (1973) 89 LQR 235, discussed a situation like that referred to in Cleaver, where a person entitled to a remainder interest in property killed a person whose death occasioned the end of a prior life interest. The article provided (at 250) as follows:

The wrongdoer has, before the killing, an interest in property of which he should not be deprived. On the other hand, he should not be allowed to benefit from the acceleration of the enjoyment of that interest. As the measure of the wrongdoer’s gain is the enjoyment of the property for the number of years that the prior holder would have held the property but for the killing, it is suggested that the wrongdoer should be deprived of that enjoyment for the period of his victim’s life expectancy.

(Footnotes omitted.)

37․In addition to citing Cleaver (presumably only for the factual example which Fry LJ provides), this passage also relies upon Prof Scott’s The Law of Trusts and Goff and Jones The Law of Restitution. Scott, in dealing with the position in the United States, contends that it is not appropriate to deprive the killer of his interest altogether but that a constructive trust is imposed to prevent the killer from benefiting from the acceleration of his interest.

38․Goff and Jones contend that in the case where the killer murdered a testator who is a tenant for life so as to bring forward the entitlement of the killer, the killer “should not thereby be able to accelerate his remainder, but at the same time he should not be deprived of it since it was acquired independently of the felonious act”: at 441. The authors suggest: “A possible solution is to require the trustees to hold the property on the trusts of [the testator’s] will, excluding [the killer], for the period of [the testator’s] life expectancy at the moment before his death and thereafter for [the killer]”: at 441-442.

39․It is notable that the concern of the academic works has been to formulate a rule which, like a statute, will define the circumstances in which forfeiture occurs. Those texts were written in a context in which there was no statutory intervention to ameliorate what could be perceived to be unjust outcomes from a broad and fixed rule. However, the imperative to modify the rule so as to confine its scope has been reduced by statutes which, instead of supplanting the rule and defining in advance a narrower forfeiture rule, accept the judge-made rule and allow modification of its operation in appropriate cases: Forfeiture Act 1982 (UK), Forfeiture Act 1991 (ACT), Forfeiture Act 1995 (NSW). This approach may be less conceptually satisfying than carefully calibrated judge-made rules or a detailed statutory regime, such as that in the Succession (Homicide) Act 2007 (NZ), but it is functional and ensures that the outcome of the application of the forfeiture rule can accord with “the justice of the case”: Forfeiture Act 1991 (ACT), s 3(2).

40․There are five reasons why I decline to follow Batey insofar as it stands for the adoption of the acceleration of benefit model for the forfeiture rule in a case like the present.

41․First, it is inconsistent with the decision in Cleaver. The concern expressed in the academic works which form the basis for the acceleration of benefit model of the forfeiture rule is not to deprive persons of property interests which do not themselves arise from the unlawful killing. As a consequence, the application of the rule would significantly depend upon whether an interest had vested or not. Thus, there would be a distinction between a situation in which a beneficiary under a will killed the testator where the killer’s interest had not vested prior to the killing and a situation in which a remainderman killed the holder of a life estate whose interest burdened the property. However, the decision in Cleaver involved the denial to the murderer of her vested interest in the statutory trust that had been created immediately upon the policy of insurance in her husband’s life having been affected under s 11 of the Married Women’s Property Act 1882 (UK). It was “a case in which the wife’s interest under the trust arose prior to the husband’s death when the policy was written (and so not by virtue of her crime)”: Henderson v Wilcox [2015] EWHC 3469 (Ch) at [11]. The sensitivity to the vested interests of the killer, which is reflected in the academic works, is not reflected in the decision in Cleaver.

42․Second, it is contrary to the example of the application of the rule described by Fry LJ in Cleaver. That example has been set out in the quote from Batey at [27] above. There is nothing in Fry LJ’s judgment to suggest a qualification of the example given so that it would only result in an extinguishment of the benefit of acceleration caused by the murder, as distinct from the interest as a whole.

43․Third, it is inconsistent with the formulation of the rule in Tucker. The formulation, which is set out at [13] above, requires only that the death be “a material fact in the vesting in possession of an interest” and is clearly intended to be consistent with Fry LJ’s example, which is referred to immediately following the quoted passage. The distinction between vesting in possession and vesting in interest is explained in Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844; 10 ASTLR 251 at [53] and Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490 at 496. Although Mark’s entitlement under Jakov’s Will had vested in interest, it only vested in possession upon the death of Danijela. The killing was, therefore, clearly a material fact in Mark’s interest in Jakov’s Trust vesting in possession and, hence, was within the scope of the rule as articulated in Tucker.

44․Fourth, the acceleration benefit approach adopted in Batey has never been followed in Australia. No Australian case prior to, or since, Batey has adopted that approach.

45․Fifth, there is no reason why the forfeiture rule should be understood narrowly (or narrowed by judicial decision) in circumstances where persons who may be adversely affected by the rule have a statutory entitlement to apply for its modification under the Territory Forfeiture Act. The Forfeiture Act works in a negative way, recognising the judge‑made rule and allowing it to operate freely, but allowing applications to modify the operation of forfeiture if “the justice of the case” requires it. It thereby does not attempt to define in advance the circumstances in which forfeiture will occur but gives to the Supreme Court a power to address circumstances in which the application of the rule would appear to be unjust.

46․I decline to follow the approach in Batey and instead treat the consequence of the unlawful killing of Danijela as being to deny Mark any benefit of Jakov’s Trust. This treats the unlawful killing of another beneficiary as being in the same category as the unlawful killing of a testator so long as, in accordance with the Tucker articulation of the forfeiture rule, “that death is a material fact in the vesting in possession of an interest in favour of” the killer. Any potential harshness in a rule of this breadth is now ameliorated by the provisions of the Forfeiture Act.

47․For the above reasons, Mark’s killing of his mother precludes him from deriving any benefit of Jakov’s Trust.

The application of the rule in Saunders v Vautier to the present circumstances

48․Given that the forfeiture rule excludes Mark from deriving any benefit from Jakov’s Trust, the next issue is whether Miryam, as the sole remaining beneficiary, is entitled to terminate the trust and pay to herself the balance of the trust funds.

49․The rule in Saunders v Vautier (1841) 4 Beav 115; 41 ER 482 is that an adult beneficiary (or a number of adult beneficiaries acting together) who has, or have between them, an absolute, vested and indefeasible interest in the capital and income of property may require the transfer of the property to them: CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53; 224 CLR 98 at [47]. Where the property is the subject of a trust, “several beneficiaries having indefeasibly vested interests with possession or payment postponed, … may combine, provided none is under any disability, likewise to terminate the trusts and the trustees’ discretion, and to achieve immediate payment to them of the trust property” : Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406 at 410; CPT at [48]. The same situation applies where there is a sole beneficiary.

50․Because of the operation of the forfeiture rule, Miryam is the sole remaining lawful beneficiary of Jakov’s Trust. She has an absolute, vested and indefeasible interest in the capital and income of Jakov’s Trust and is entitled to have the balance of the trust fund transferred to her.

Summary and relief

51․In summary:

(a)the forfeiture rule precludes Mark from taking the benefit otherwise available to him under Jakov’s Will; and

(b)in those circumstances, because Miryam is the sole remaining lawful beneficiary of Jakov’s Trust, she is entitled to terminate the trust and pay the balance of the trust assets to herself.

52․The relief sought in the amended application in proceeding filed following the conclusion of the hearing sought both a declaration as well as advice pursuant to s 63 of the Trustee Act. In circumstances where this differed from the relief sought in the earlier application in proceeding, which orders were obscurely drafted, and where the amended application in proceeding has not been served on Mark, I consider that it is appropriate to deal with the matter within the framework provided by s 63. Section 63 permits notice of the advice to be given subsequent to the hearing and an opportunity for a beneficiary who would be prejudiced by the distribution in accordance with the advice to make an application to the court. Having regard to the protections available to the applicant under s 63, I do not consider that it is essential for there to be an additional declaration in the circumstances.

Costs

53․The applicant also applied for an order that costs be payable out of the estate. In the course of oral submissions, counsel for the applicant accepted that such an order was not necessary in circumstances where the application was successful because of the entitlement of the executor to be indemnified out of the assets of the estate: see In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253; 21 ACTLR 226 at [61]-[63]; s 59(4) of the Trustee Act, and the fact that the applicant was both the administrator and found to be the sole lawful beneficiary of the estate. A costs order might have been significant if the application was unsuccessful but appropriately made in the circumstances. Because the application has been successful no costs order will be made.

Orders

54․For the above reasons, the orders of the Court are:

(1)Pursuant to s 63 of the Trustee Act 1925 (ACT), in the opinion of the Court, Miryam Alexandra Pavic, also known as Mirjam Pavic, as the administrator of the estate of the late Jakov Pavic and the sole remaining lawful beneficiary of the estate of the late Jakov Pavic, is justified in distributing to herself any and all assets remaining in the estate of the late Jakov Pavic.

(2)For the purposes of s 63(5) of the Trustee Act 1925 (ACT), the applicant has leave to serve notice on Mark Pavic, also known as Marko Pavic, by way of telephone short message service (SMS), to the telephone number 04xxxxxxxx.

(3)Mark Pavic may make any application under s 63(7) of the Trustee Act within 28 days of service pursuant to order 2.

(4)Note that, pursuant to s 63(7) of the Trustee Act, the trustee must abstain from making a distribution during the period referred to in order 3 or while any such application is pending.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 20 December 2024