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Everts v Liepins

Everts v Liepins

Case [2022] NSWSC 1021 29 July 2022

Filing and verification of estate accounts

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Supreme Court

New South Wales

Medium Neutral Citation: Everts v Liepins [2022] NSWSC 1021
Hearing dates: 14 July 2022
Date of orders: 14 July 2022
Decision date: 29 July 2022
Jurisdiction: Equity
Before: Hallen J
Decision:
See [79]

Catchwords:
SUCCESSION – PRACTICE AND PROCEDURE – succession – Filing and verification of estate accounts

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56-60
Legal Profession Act 2014 (NSW)
Probate and Administration Act 1898 (NSW) s 85
Supreme Court Act 1970 (NSW) s 53(3)(a)
Uniform Civil Procedure Rules 2005 rr 18.7, 54.1, 54.3

Cases Cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Council of the Law Society of New South Wales v Liepins (No 3) [2016] NSWCATOD 51
Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
Hons v Hons (2010) 3 ASTLR 278; [2010] NSWSC 247
Jordan v Goldspring No 2 [2022] NSWSC 780
Kemp v Burn (1863) 66 ER 740
Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167
McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623; (1985) 9 ACLR 926
Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36
NSW Trustee and Guardian as Executor of the Will of Michael Robert Walsh (Dec’d) v Gregory (2012) 18 BPR 35,153; [2012] NSWSC 681
Palmer v Ayres; Ferguson v Ayres (2017) 259 CLR 478; [2017] HCA 5
Phillip Allan Yates v John Norman Phillips Halliday [2006] NSWSC 1346
Re Craig (1952) 52 SR (NSW) 265
Re Estate Schwartz, Deceased; Application of Gellert; Gellert v Bentwood and Schwartz [2015] NSWSC 1484
Re Watson (1904) 49 Sol Jo 54
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Schmidt v Rosewood Trust Ltd [2003] 2 AC 709; [2003] UKPC 26
Stamoulos v Constantinidis; Constantinidis v Constantinidis [2017] NSWSC 1808
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
The Estate of Frances Kedesch Michell [2020] NSWSC 1300
The Estate of Maureen Laila Huber, of Cobram VIC; The Estate of Dolf Paul Huber [2020] NSWSC 1539
UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45
Williams v Stephens (1986) 17 BPR 33,839

Category: Principal judgment
Parties: Bernt Everts (Applicant)
Juris Liepins (Respondent)
Representation:
Counsel:
Mr T Maltz (Applicant)
Solicitors:
HWL Ebsworth Lawyers (Applicant)

File Number(s): 2013/143016
Publication restriction: Nil

Judgment

The Proceedings

HIS HONOUR: By notice of motion filed on 12 April 2022, the applicant, Bernt Everts, seeks orders that the respondent, Juris Liepins, the executor of the Will, and trustee of the estate, of Asja Everts ("the deceased"), to whom Probate was granted, verify and file accounts in respect of his administration of the estate of the deceased from the date of death, until the date of the filing of the accounts; that the respondent, thereafter, take all such steps as may be necessary to vouch and to pass 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 Everts v Liepins

Details

AGLC: Everts v Liepins [2022] NSWSC 1021
Case: [2022] NSWSC 1021
Decision Date: 29 July 2022

CaseChat Overview and Summary

The case of Everts v Liepins was heard in the Supreme Court of Victoria. The dispute involved the validity of estate accounts filed by the executor, Liepins, and the objections raised by the beneficiaries, Everts. The beneficiaries contested the executor's right to claim certain expenses and questioned the accuracy of the accounts. The court was required to determine the procedural correctness of the estate accounts and whether they met the legal standards for verification and approval.

The central legal issue was whether the executor had complied with the statutory requirements for filing and verifying the estate accounts. The court examined the executor's actions in relation to the rules governing estate administration, specifically focusing on the necessity of obtaining independent verification and the accuracy of the accounts. Additionally, the court had to consider whether the executor's actions were reasonable and in the best interests of the estate and its beneficiaries.

The Supreme Court found that the executor had not followed the correct procedure in verifying the estate accounts. The court noted that the executor failed to obtain independent verification of the accounts, which is a mandatory requirement under the relevant statute. Furthermore, the court determined that the executor's claim for certain expenses was not adequately supported by the evidence. Consequently, the court held that the estate accounts were not properly filed and verified, and therefore, the executor's actions were not in compliance with the law. The court ordered the executor to rectify the accounts and seek independent verification before proceeding with the final distribution of the estate.

The final orders of the court required the executor to correct the estate accounts to ensure they met the legal standards for verification and approval. The executor was directed to file the revised accounts within a specified timeframe, ensuring all required documentation and independent verification were included. The court also mandated a review of the executor's actions to prevent any further non-compliance with the statutory requirements for estate administration.

Orders