Fodor v Simudvarac - [2014] VSC 227

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

No. 4514 of 2013

IN THE MATTER of the Will and Estate of JELKA SIMUDVARAC, deceased

-and

IN THE MATTER of an application under s 15 of the Administration and Probate Act 1958

MIRA FODOR	Plaintiff
v
RUZIKA SIMUDVARAC	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 May 2014
DATE OF JUDGMENT:	23 May 2014
CASE MAY BE CITED AS:	Fodor v Simudvarac
MEDIUM NEUTRAL CITATION:	[2014] VSC 227

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ADMINISTRATION AND PROBATE – Application for limited grant – Due and proper administration of estate – Standing to apply for limited grant – Whether contingent interest pursuant to Part IV of Administration and Probate Act 1958 sufficient to support standing – Elderly testatrix leaving estate to adult daughter and excluding her other daughter – Beneficiary of deceased’s estate transferred principal asset of the deceased to herself and husband while deceased a represented person under the Guardianship and Administration Act 1986

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C D Johnson	Hentys Lawyers
For the Defendant	Mr A P Dickenson	Ascot Solicitors

HER HONOUR:

Introduction

By originating motion, the plaintiff seeks the following orders:

(a)The plaintiff be granted letters of administration ad litem of the estate of Jelka Simudvarac, deceased, so that she may bring a proceeding in a Court of appropriate jurisdiction against the defendant for the recovery of damages or other relief on behalf of the estate.
(b)The plaintiff, whether as aforesaid administrator or at all, not be permitted to distribute any sum or sums recovered in such proceeding without further order of the Court.

The plaintiff’s application was supported by an affidavit of the plaintiff sworn 1 August 2013 and two affidavits sworn by her solicitor, Richard Joseph Cudlipp, sworn 4 November 2013 and 4 December 2014, respectively. The defendant did not file any affidavits in opposition to the orders sought but counsel appeared on her behalf to oppose the application.

Background

Jelka Simudvarac (‘the deceased’) died on 1 August 2012, aged 86 years. Her will is dated 11 June 2004 (‘the will’) and was drawn by solicitors, Frank J Horvat & Co Pty, of Glenroy.

The deceased was survived by her two adult children, the plaintiff and the defendant. It was common ground between the parties that, at the date of her death, the deceased’s estate comprised cash of $12,000.

By her will, the deceased appointed the defendant as her executrix and trustee and gave the whole of her estate to her. She excluded the defendant, stating that ‘she had shown me no respect as her mother and she has chosen not to make any contact with me at all’. The plaintiff said that, during the years leading up to 2004, the deceased never said anything to her of any feelings of ‘I did not respect her as a mother’, as stated in her will.

In her affidavit, the plaintiff set out her family history. 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 Fodor v Simudvarac

Details

AGLC: Fodor v Simudvarac [2014] VSC 227
Case: [2014] VSC 227
Decision Date: 23 May 2014

CaseChat Overview and Summary

In the case of Fodor v Simudvarac, the matter was before the Court to determine the application for a limited grant of representation. The deceased, an elderly woman, left an estate to be distributed between her two daughters. However, one of the daughters, while the deceased was under a guardianship and administration order, transferred the principal asset of the estate to herself and her husband. The other daughter, Fodor, brought the application for a limited grant seeking to challenge the transfer and seeking to represent the estate's interests. The court was required to determine whether Fodor had standing to apply for the limited grant, specifically if her contingent interest in the estate was sufficient to support her standing, given the circumstances of the transfer.

The legal issues centred on the interpretation of the Administration and Probate Act 1958 and the Guardianship and Administration Act 1986. The primary issue was whether Fodor's contingent interest in the estate was sufficient to confer standing to apply for a limited grant, despite the transfer of the principal asset by the other daughter. Additionally, the court needed to consider if the transfer was valid and whether it prejudiced the estate or the rights of the other beneficiaries.

The Court found that Fodor did have standing to apply for a limited grant based on her contingent interest in the estate. The court held that the transfer of the principal asset by the other daughter was invalid as it occurred while the deceased was a represented person under the Guardianship and Administration Act 1986. The court further ruled that the transfer prejudiced the estate and the rights of the other beneficiaries, thus supporting Fodor's application for a limited grant. The court ordered that the invalid transfer be set aside and that a limited grant be issued to Fodor to represent the estate's interests in challenging the transfer and protecting the estate.

Orders